Libel tourism

Libel tourism is a term first coined by Geoffrey Robertson to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those accused of making derogatory statements. According to the English publishing house Sweet & Maxwell, the number of libel cases brought by people alleged to be involved with terrorism almost tripled in England between 2006 and 2007.

A critic of English defamation law, journalist Geoffrey Wheatcroft, attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment and "the caprice of juries and the malice of judges." Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan case. "Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly."

Two other critics of English defamation law, the US lawyers Samuel A. Abady and Harvey Silverglate, have cited the example of Irish–Saudi businessman Khalid bin Mahfouz, who by the time of his death in 2009, had threatened suit more than 40 times in England against those who accused him of funding terrorism. Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor Richard Perle threatened to sue investigative reporter Seymour Hersh in London, because of a series of critical articles Hersh had written about him. In 2006 American actress Kate Hudson won a libel action in England against the British edition of the National Enquirer magazine after it published an article suggesting she had an eating disorder.

Case Law

The Ehrenfeld Case

Further information: Funding Evil#Libel controversy

Khalid bin Mahfouz and two members of his family sued Rachel Ehrenfeld, an Israeli-born writer and United States citizen over her 2003 book on terrorist financing, Funding Evil, which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups. The book was not published in Britain, although 23 copies of her book had been purchased online through web sites registered in the UK, and excerpts from the book had been published globally on the ABC News web site. Ehrenfeld claimed that the suit in England violated her First Amendment rights under the U.S. Constitution and chose not to defend the action. Instead, she countersued in the U.S. In his judgment Justice Eady criticised Dr. Ehrenfeld for attempting to cash in on the libel action without being prepared to defend it on its merits and specifically rebutted her suggestion of forum shopping. Eady ruled that Ehrenfeld should pay £10,000 to each plaintiff plus costs, apologize for false allegations and destroy existing copies of her book.

Eady has been internationally criticized for his perceived bias in the case and his general restrictive approach to free speech. Additionally, the libel laws which were applied are under scrutiny in England, where calls for libel law reform have increased since Ehrenfeld's case. Analyzing British libel law, the United Nations Human Rights Committee cautioned that: "practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism." The advent of the internet and the international distribution of foreign media also create the danger that a State party's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest."

Berezovsky v Michaels

Main article: Berezovsky v Michaels

In 2000, the House of Lords gave Boris Berezovsky and Nikolai Glushkov permission to sue Forbes for libel in the UK courts. In 2003 the case was settled when Forbes offered a partial retraction. This raised legal questions relating to jurisdiction of the UK courts, and according to scholars it is a leading example of libel tourism.

Laws addressing libel tourism

United States

Federal

The Free Speech Protection Act of 2008 and 2009 were both bills aimed at addressing libel tourism by barring U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. Both of these bills were superseded by the SPEECH Act of 2010 which was passed unanimously in both the House of Representatives and the Senate before being signed by US President Barack Obama on August 10, 2010.

New York

In late December 2007, the Second Circuit Court of Appeals, based on a decision by the New York State Court of Appeals, ruled that the state's current "long-arm" statutes governing business transactions did not give it jurisdiction to protect author Ehrenfeld. The Court noted, however, that if the law were to change, Ehrenfeld could go back to court.

On Jan. 13, 2008, two members of the New York State Legislature, Assemblyman Rory I. Lancman (D-Queens) and Senator Dean Skelos (R-LI), introduced a "Libel Terrorism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B) to amend the New York civil procedures in response to the Ehrenfeld case. The bill passed the New York State legislature on a rare unanimous vote. and on April 29, 2008 Gov. Paterson signed the bill into law. The Libel Terrorism Protection Act enables New York courts to assert jurisdiction over anyone who obtains a foreign libel judgment against a New York publisher or writer, and to limit enforcement to those judgments that satisfy "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions."

California

In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act). It took effect January 1, 2010. It provides that California court shall not recognize a foreign-country judgment if "the judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions" (CCCP sec. 1716(c)(9)) and other protections. (See Cal. Code of Civil Procedure sections 1716 and 1717, as amended by Chapter 579, Statutes of 2009 (SB 320 - Corbett).) (http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0301-0350/sb_320_bill_20091011_chaptered.pdf.) The law received significant bi-partisan support. (See CA Leg Counsel bill/vote records)

Illinois

Illinois also enacted a Libel Tourism law in August 2008 which is similar to that of the statute passed in New York. (See 735 ILL. COMP. STAT 5/12-621 (b)(7) (2009); 735 ILL. COMP. STAT. 5/2-209 (b-5) (2009).)

Florida

In May 2009, Florida also enacted a Libel Tourism law similar to the law passed in New York. (Florida Statutes 55.605 (2)(h); 55.6055)

See also

• Defamation
• Forum shopping
• Khalid bin Mahfouz
• Simon Singh

External links

• THE LIBEL TOURIST. A short documentary detailing one such case involving bin Mahfouz