http://www.nytimes.com/2008/09/15/opinion/15mon4.html
New York Times - United States
September 15, 2008
EDITORIAL OBSERVER
'Libel Tourism': When Freedom of Speech Takes a Holiday
By ADAM COHEN
When Rachel Ehrenfeld wrote "Funding Evil: How Terrorism Is Financed
and How to Stop It," she assumed she would be protected by the First
Amendment. She was, in the United States. But a wealthy Saudi businessman
she accused in the book of being a funder of terrorism, Khalid bin Mahfouz,
sued in Britain, where the libel laws are heavily weighted against
journalists, and won a sizable amount of money.
The lawsuit is a case of what legal experts are calling "libel
tourism." Ms. Ehrenfeld is an American, and "Funding Evil" was never
published in Britain. But at least 23 copies of the book were sold online,
opening the door for the lawsuit. When Ms. Ehrenfeld decided not to defend
the suit in Britain, Mr. bin Mahfouz won a default judgment and is now free
to sue to collect in the United States.
The upshot is a First Amendment loophole. In the Internet age,
almost every American book can be bought in Britain. That means American
authors are subject to being sued under British libel law, which in some
cases puts the initial burden on the defendant to prove the truth of what
she has written. British libel law is so tilted against writers that the
United Nations Human Rights Committee criticized it last month for
discouraging discussion of important matters of public interest.
Mr. bin Mahfouz, who has denied financing terrorism, said Ms.
Ehrenfeld's book contained inaccuracies and demanded a retraction. He also
demanded a significant contribution to a charity of his choice - a charity
Ms. Ehrenfeld said she feared would be one with ties to terrorism. Ms.
Ehrenfeld, who describes herself as being "in the business of stopping
people who fund terrorism," refused to back down. "I said," she later
recalled, "he's found the wrong victim."
Ms. Ehrenfeld rallied prominent champions of free speech to her
cause, including the American Library Association, the Association of
American Publishers and the PEN American Center. She also set to work trying
to change American law. The New York State Legislature passed a bill that
some are calling "Rachel's law," which blocks enforcement of libel judgments
from countries that provide less free-speech protection than the United
States. Gov. David Paterson signed it on May 1.
A similar, bipartisan bill has been introduced in Congress. The
federal bill would extend protection to the entire country. It would also
allow American authors and publishers to countersue, and if a jury found
that the foreign suit was an attempt to suppress protected speech, it could
award treble damages. There is little opposition to it - and Congress should
pass it before it adjourns later this month.
"Libel tourism" is a threat to America's robust free-speech
traditions, which protect authors here. If foreign libel judgments can be
enforced in American courts, there will be a "race to the bottom"; writers
will only have as much protection as the least pro-free-speech nations
allow.
Most writers, particularly those who concern themselves with arcane
subjects like terrorism financing, are not wealthy. The prospect of a
deep-pocketed plaintiff coming after them in court can be frightening. Even
if the lawsuit fails, the cost and effort involved in defending against it
can be considerable.
The result is what lawyers call a "chilling effect" - authors and
publishers may avoid taking on some subjects, or challenging powerful
interests. That has already been happening in Britain. Craig Unger's "House
of Bush, House of Saud: The Secret Relationship Between the World's Two Most
Powerful Dynasties" was a best seller in the United States. But its British
publisher canceled plans to publish the book, reportedly out of fear of
being sued. (A smaller publisher later released it.)
Ms. Ehrenfeld says that even in the United States, writers and
publishers have been backing away from books about terrorism financing -
particularly about the Saudi connection - out of fear of being sued. It is
hard to know if other books are not being written out of fear of lawsuits -
that is the essence of the chilling effect.
Britain should rethink its libel laws, as the U.N. committee urged,
for the sake of its citizens. But until it does, the United States should
ensure that other countries' pro-plaintiff libel laws do not infect this
country and diminish our proud tradition of freedom of expression.
Copyright 2008 The New York Times Company
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