Thursday, October 11, 2007

"Libel Tourism": British law tempts Islamists to quash speech globally

Michael J. Broyde and Debdorah E. Lipstadt have a disturbing op-ed on p. A27 of The New York Times, today, Thursday, Oct. 11, 2007, “Home Court Advantage” with the insert headline, “American authors need to be protected from libel tourism.” Here is the link. It may require registration or purchase.

There are two issues at stake. One is that suddenly, authors and publishers have found that some countries, Britain, at least, will honor lawsuits against them for books not published in those countries but ordered by at least one citizen of the country online. This seems to be new with the Ehdrenfeld case, discussed below. The other issue is something like “full faith and credit” among the states in the United States”: courts are now considering where libel judgments from foreign countries can be collected from Americans without being brought in American courts. It is surprising to me that they could be. The op-ed authors encourage Congress to pass a law preventing state or federal courts from enforcing overseas judgments without be brought in American courts. Even without such a law, however, one would expect current and future defendants to find support to take this to the Supreme Court if necessary.

Right now, a district court in New York is considering whether a judgment against Rachel Ehrenfeld, an American author, whose book “Funding Evil: How Terrorism Is Financed and How to Stop It,” published in 2003, tries to establish that a certain Saudi sheik (named in the op-ed; I’ll decline to name him here for right now) has financed radical Islamic terrorism, apparently through charities. A 2005 version of the book (with a "Preface to the Expanded Edition" that discusses the UK litigation) is available from Amazon (despite a supposed agreement to destroy the book). I ordered the book today. However, another book from Cambridge University press by , J. Millard Burr and Robert O. Collins, “Alms for Jihad,” was withdrawn by the publisher without giving the authors a chance to defend, but this book apparently (given the name of the publisher) was published in the United Kingdom. Amazon offers only a review of that book as an e-doc. In practice, the American justice system seems to have gone after "false store front" charities with some vigor, sometimes prosecuting innocent businessmen here.

One important factor is that Britain demands much more of defendants when there are libel claims. Kitty Kelly, author of the “The Royals,” warned the media that “truth is not an absolute defense to libel in Britain” as it is supposed to be in the United States. Furthermore, in Britain, a plaintiff does not have to show that the libel was done with malice. Libel claims in Britain, however, have typically occurred in the past with books published in Britain and been made by British subjects or about incidents involving British subjects (such as the Princess Diana tragedy, about which rumors abound). For interests in other countries or parties (especially radical Islam) to use British courts to suppress worldwide speech, especially against defendants in other countries when these defendants have no practical ability to afford to defend themselves in Britain, is particularly sinister and this is something Congress should take up immediately.

The op-ed referred to books, but one wonders about websites, such as blogs and social networking profiles. Could Saudi businessmen try to shut down blogs that criticize them?

This sounds like a critical legal issue that bears careful watching, for detailed progress of specific cases and any bills in Congress.

Update: Jan. 9, 2008

The new "unauthorized biography" of Tom Cruise by Andrew Morton, to be published by St. Martin's Press Jan. 15, 2008, will not be published in Britain, where libel is harder to defend (at least according to Kitty Kelly). Nevertheless, couldn't the same sort of action be brought in Britain against this book anyway, given the example set here by the book about Khalid bin Mahfouz?

Update: Aug. 31, 2008

The Washington Times, on p B3, published an op-ed by Clifford May, "Free Speech Under Fire," about libel tourism, and discussed the propsoed Free Speech Protection Act of 2008 (introduced by New York representatives Peter King, a Republican, and Anthony Weiner, Democrat) link here.

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