Tuesday, August 17, 2010

Libel Tourism

I thought we'd start today's post with a clip from Nightline. This piece was first broadcast in September, 2006 and describes the practice called "libel tourism."

Of course, three months after this piece was broadcast, Britney Spears filed for divorce from Kevin Federline.

The L.A. Times defined libel tourism here as "the practice of bringing a defamation lawsuit against an author or publisher in a country with less robust protections of free speech than those afforded Americans by the 1st Amendment and Supreme Court decisions."

Boiled down to its essence, in the U.S., the burden of proof in a libel suit is on the plaintiff, who initiated the case against the defendant. The plaintiff must prove (1) that the so-called libel is not true and (2) if the defendant is a public figure, the plaintiff must also prove that the defendant acted with malicious intent in writing the so-called libel.

We often say, "The truth will set you free." If what you wrote is true, you are protected under U.S. law.

In the UK, everything is reversed. First, the burden of proof is on the defendant. Second, British law presumes the defendant is wrong and demands that the defendant prove that s/he is right.

As you saw in the video, the UK has become a popular place for plaintiffs to go in order to sue American writers and publications.

Probably the most most famous case of libel tourism is that of Rachel Ehrenfeld, an expert on terrorism and terrorism financing. According to the Boston Globe here, Dr. Ehrenfeld "pioneered investigation into the financial roots of terrorism, first in her 1990 book Narcoterrorism and, most recently, in Funding Evil -- How Terrorism is Financed and How to Stop It."

According to Publishers Weekly:
Libel tourism came to international prominence in 2005, when Saudi billionaire Sheikh Khalid bin Mahfouz sued New York-based author Rachel Ehrenfeld in a British Court over her book Funding Evil. Even though the book was not published in the U.K., 23 copies purchased via the Internet provided Mahfouz with enough grounds to sue Ehrenfeld in England ... Ehrenfeld refused to participate in the proceedings, was ordered to pay £10,000 and legal costs.
According to the New York Times here, Dr. Ehrenfeld was ordered "to pay £10,000 each to Mr. Mahfouz and his two sons, and more than £100,000 in legal costs."

Following that verdict, five U.S. states (New York, Illinois, California, Florida and Louisiana) passed laws to make it hard to enforce a foreign court's judgment against an American who was legitimately practicing his/her constitutionally guaranteed freedom of speech.

However, that still left 45 states where a foreign libel judgment might be pursued against an American citizen.

Last week, Yahoo reported:
President Barack Obama on Tuesday signed a law to shield US journalists, authors, and publishers from "libel tourists" who file suit in countries where they expect to get the most favorable ruling ...

The measure prevents US federal courts from recognizing or enforcing a foreign judgment for defamation that is inconsistent with the first amendment of the US Constitution, which guarantees freedom of speech.

And it bars foreign parties in such cases from targeting the US assets of an American author, journalist, or publisher as part of any damages.

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