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 defenses for those accused of making derogatory statements.
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.
A series of cases involving US citizens being sued in English courts led to new laws in both countries. In the United States, the SPEECH Act unanimously passed the US Congress, which makes foreign defamation judgements unenforceable in US courts if they don't meet US free speech standards. In England and Wales, the Defamation Act 2013 requires plaintiffs to show that England is the proper jurisdiction to hear a case when the defendant does not live in England or Wales.
Berezovsky v Michaels
In 2000, the House of Lords gave Boris Berezovsky and Nikolai Glushkov permission to sue Forbes for libel in the English courts. In 2003 the case was settled when Forbes offered a partial retraction.
The issues relating to jurisdiction of the English courts in such actions were appealed to the House of Lords, at that time the highest court in England and Wales, making this the key test case on libel tourism.
The Ehrenfeld Case
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 was advised by English lawyer Mark Stephens to claim 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 2005 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 claimant 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 came under scrutiny in England, where calls for libel law reform increased after Ehrenfeld's case. Analyzing English 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."
Laws addressing libel tourism
England and Wales
On January 1st, 2014 the Defamation Act 2013 came into force, requiring plaintiffs who bring actions in the courts of England and Wales alleging libel by defendants who do not live in Europe to demonstrate that the court is the most appropriate place to bring the action. Serious harm to an individual's reputation or serious financial harm to a corporation must also be proven. Good faith belief that a disclosure was in the public interest was made a defense.
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. These protections were passed in the 2010 SPEECH Act which passed unanimously in both the House of Representatives and the Senate before being signed by US President Barack Obama on August 10, 2010.
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 Tourism 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 Tourism 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."
In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act) that took effect January 1, 2010. The Act provides that California courts 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. The law received significant bi-partisan support.
In May 2009, Florida also enacted a libel tourism law similar to the law passed in New York.
- Libel Tourism Chills Investigative Journalism Archived 2010-11-24 at the Wayback Machine
- Wheatcroft, Geoffrey (2008-02-28). "The worst case scenario". The Guardian. p. 32. Retrieved 2008-04-17.
- Samuel A. Abady; Harvey Silverglate (2006-11-07). "'Libel tourism' and the War on Terror". Boston Globe. Retrieved 2008-04-17.
- Berlins, Marcel. Index on Censorship, July 2004, Vol. 33 Issue 3, p18-20
- "Damages for Hudson over pictures". BBC News. 2006-07-20. Retrieved 2009-01-17.
- "Judgments - Berezovsky v. Michaels and Others Glouchkov v. Michaels and Others (Consolidated Appeals)". publications.parliament.uk. May 11, 2000. Retrieved September 19, 2011.
- "Shuddup". The Economist. 13 March 2003.
- The following statement appended to the article on the Forbes website summarises: 'On 6 March 2003 the resolution of the case was announced in the High Court in London. FORBES stated in open court that (1) it was not the magazine's intention to state that Berezovsky was responsible for the murder of Listiev, only that he had been included in an inconclusive police investigation of the crime; (2) there is no evidence that Berezovsky was responsible for this or any other murder; (3) in light of the English court's ruling, it was wrong to characterize Berezovsky as a mafia boss. "Berezovsky Vs. Forbes" Forbes 31 March 2003
- Delta, George B.; Matsuura, Jeffrey H. (2008). "Jurisdictional issues in cyberspace". Law of the Internet. 1 (3rd ed.). Aspen Publishers. pp. 3–92. ISBN 978-0-7355-7559-2.
Berezovsky is the leading case in what has come to be known as “libel tourism
- Crook, Tim (2010). "Defamation law". Comparative media law and ethics. Taylor & Francis. pp. 240–241. ISBN 978-0-415-55161-8.
- Taylor, Daniel C. (November 2010). "Libel Tourism: Protecting Authors and Preserving Comity" (PDF). Georgetown Law Journal. 99: 194. ISSN 0016-8092. Archived from the original (PDF) on 2 January 2014. Retrieved 23 September 2011.
- Alyssa A. Lappen, "The fly in the bin Mahfouz ointment", Aug. 6, 2007
- Britain, a destination for "libel tourism"
- Lappen, "The fly in the bin Mahfouz ointment", Aug. 6, 2007
- Full text of the High Court judgment, 2005-05-03
- Sarah Lyall (April 25, 2013). "Libel Cases Now Harder to Bring in England". The New York Times. Retrieved April 26, 2013.
- Meisel, Aylana (2010-08-03). "Congress Unites to Pass Bill Protecting American Authors and Publishers". The Cutting Edge. Retrieved 2010-08-11.
- Greenslade, Roy (2010-08-11). "Obama seals off US journalists and authors from Britain's libel laws". The Guardian. Retrieved 2010-08-11.
- N.Y. Court of Appeals ruling, Dec. 20, 2007
- Alyssa A. Lappen, "America's First Amendment lifeline", Human Events, Jan. 25, 2008
- Matthew Pollack (April 1, 2008). "New York strikes back against libel tourism". Reporters Committee for Freedom of the Press.
- "Gov. Paterson signs legislation". May 1, 2008. Archived from the original on January 29, 2010.
- Samuel A. Abady & Harvey Silverglate (25 February 2008). "Rachel's Law: NY's 'Libel-Tourism' Fix". New York Post.
- 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
- CA Leg Counsel bill/vote records
- 735 Ill. Comp. Stat 5/12-621 (b)(7) (2009)
- 735 Ill. Comp. Stat. 5/2-209 (b-5) (2009)
- Florida Statutes 55.605 (2)(h); 55.6055
- Barbour, Emily C. The SPEECH Act: The Federal Response to "Libel Tourism". Washington, D.C.: Congressional Research Service, Library of Congress, 2010.
- Bell, Avi. Libel Tourism: International Forum Shopping for Defamation Claims. Jerusalem: Jerusalem Center for Public Affairs, 2008.
- Brower, Amy J. Libel Tourism and Foreign Libel Lawsuits. New York: Nova Science Publishers, 2011.
- Henning, Anna C., and Vivian S. Chu. "Libel Tourism" Background and Legal Issues. Washington, D.C.: Congressional Research Service, Library of Congress, 2009.
- Melkonian, Harry. Defamation, Libel Tourism and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law. Amherst, NY: Cambria Press, 2011.
- Packard, Ashley. Digital Media Law. Chichester: Wiley-Blackwell, 2013.
- THE LIBEL TOURIST. A short documentary detailing one such case involving bin Mahfouz