This is a guest post by ami
Say what you like about Policy Exchange, (and some of you have) but at the seminar I went to last week; they had a darn sight more balanced panel than that other think tank managed the week before. This made the debate on the free speech/libel conundrum so much more interesting.
The subject of libel tourism has begun to attract considerable attention abroad: the New York State Legislature voted unanimously to pass the Libel Terrorism Protection Act in April 2008. The impetus for this move came directly from the English court judgment in favour of Khalid Salim bin Mahfouz, who sued Dr. Rachel Ehrenfeld for defamatory statements in her book Funding Evil, How Terrorism is Financed – and How to Stop it, about his alleged involvement in the funding of terrorism, allegations which Mr. Bin Mahfouz vehemently denied. Although Dr. Ehrenfeld lived and worked in the United States, the English court awarded damages and costs to the claimant and granted an injunction prohibiting the book from being published in England.
This growing phenomenon of “libel tourism”, where non-English citizens travel to England in order to press libel charges on US citizens whose work is protected under US law – shows the willingness of courts in this country to extend libel laws well beyond the boundaries of England. This has been seen by many as a great threat to the right of free speech in the West. There is now a bill before Congress to extend the effect of “Rachel’s Law” to the whole of the USA.
The first speaker, New York State Assemblyman Rory Lancsman who introduced the NY bill, described this as part of the legislative move to counter the use of the law by terrorists. Another example was the 2007 Act protecting passengers who reported suspicious activity of fellow passengers from being sued, a reaction to the CAIR lawsuit in the “flying imams” case.
Already in 1997, in the case of Telnikoff v Matusevitch, the Maryland Courts refused to enforce a UK libel judgment arising from a letter to the Daily Telegraph, as it found UK libel law so weighted against the defendant that they ran contrary to the First Amendment.
The principles of English and US law are no longer so different as they were in 1997 circa the Maryland case as there have been developments such as the Reynolds case with its defence of privilege.
In England, the onus is on the defendant to prove the truth of the statement, the reverse in the USA, where the plaintiff also has to prove malice. The English courts award costs against the losing party.
Lancman stressed the flimsy connection with the UK which the English court found sufficient to establish jurisdiction to hear Ehrenfeld’s case: she is a New York resident, Mahfouz a Saudi resident, yet because 23 copies were sold in the UK via the internet and one chapter published on the internet and therefore available in the UK, this was sufficient to found jurisdiction to bring the case in an English court.
Ehrenfeld did not defend the matter, and judgment was entered for £30,000 damages, an order for an apology, and that she cease publishing in the the UK. In order to comply, she would have to take all measures to prevent the book being sold anywhere in the world.
Tellingly, Mahfouz declined to enforce the judgment in the U.S., lest this trigger a repudiation in the U.S. Courts.
The bill, before Congress, which is supported by PEN, codifies the NY law that a judgment will not be recognised unless it provides the same free speech safeguards as the US, and an author can ask a US court for a declaration that the judgment is unenforceable, without having to wait for the Claimant to attempt to enforce it.
Lancman said he was not criticizing UK democracy- just that it should not impose its version globally where there is no strong UK connection.
Laurence Harris, who acted for Mahfouz, responded. The Judge in the matter found Ehrenfeld’s book not to be a work of scholarship, but one badly researched and full of errors. The 23 copies were merely the ones the claimant was able to identify, as the publishers wouldn’t disclose information. As regards libel tourism, there are many cases which are thrown out for insufficient jurisdiction, but the Judge found in this case that Mahfouz has homes and a business reputation in the UK. As for the judgment having a chilling effect on free speech, Ehrenfeld brought out a 2nd edition: “The book the Saudis didn’t want me to publish”- and has been prolific in interviews and writing.
Anthony Julius put himself midway in the debate between, as he put it “the Congressman and the hired gun”. He asserted it is not about the war on terror: to legislate on this basis illustrated that not only hard cases make bad law, but that topical cases make bad law. We should not allow content driven considerations to have a distorting effect. As regards Ehrenfeld’s subsequent publication, he observed wryly that Harris was making too much of the unintended consequence of his clients action. He doubted whether Harris had advised his client at the outset: “If you sue her here, she will sell more books elsewhere.” He cited David Irving’s case (Julius defended Lipstadt) as a case of forum shopping where Irving was local but there were minor sales of her book here. Irving tried to take advantage of the burden of proof to suppress freedom of speech. However, Julius implied that, had he continued to represent Ehrenfeld (another firm took over) he would have advised her to conduct a full defence of the case. He pointed out this was not a banana republic and the courts are vigilant. (He left unsaid that the proof of this was that despite the uneven playing field, Lipstadt prevailed.)
There was mention of the chilling effect of this case in getting Cambridge University press to pulp another book on a complaint by Mahfouz.
Sean O’Neill of the Times said in his long career, he found now the time of greatest threat of defamation as a weapon, and complained of some leading law firms trawling the media looking for clients. He said there were lax checks at Company House for directors who were on an Interpol red list for terrorists. He was investigating the case of a CEO of a media company who was on the list as a suspected terrorist. O’Neil works on the premise that some of these notices are politically motivated by Middle East regimes, and had a cub reporter query the man as to why he was on the list. The emailed response to the cub called him a racist Zionist, an Islamaphobic criminal liar and threatened he would contact Carter Ruck. (the cub happens to be Greek). No win no fee had made things worse, and the Times was now even more inclined to settle and not fight, retracting and removing stories from the internet. They had to apologise twice for the story about the hardline books in the mosque, on the basis that the mosque was only the leaseholder of the bookshop.
Paul Tweed, a Northern Ireland lawyer who acts for many celebrities in libel actions, said the main reason Ehrenfeld didn’t defend was the risk of costs, but if she believed she was right, she would have got her costs if she won.
Julius proposed that conditional fee arrangements should be abolished or cut down, and there should be a substantial connection with the country where the case takes place, but what made me want to punch the air in heartfelt recognition, were these observations he made:
The real problem is predatory claims coupled with cowardly defendants.
Proprietors do not serve their journalists well: although the libel laws should be equalised, it is the settling of balance sheets which is the crux of the malaise.
The papers can afford to fight; celebrity cases are fought for huge fees.
It is their proprietor’s values which are at fault, when defendants fight cases which are of no consequence but to Hello!.
Tweed agreed that defendants rolling over sent claimants a message.
My views on this have been expressed here before, born out of personal experience of supporting my son who runs a webhosting company which is subject often enough to opportunistic bluster. These he steadfastly resists notwithstanding the legal and other inconvenience. This would be greatly assisted if other, more powerful ISPs didn’t cave so routinely when confronted by any aggrieved person who demands they shut down a site which annoys them on the most risible grounds.
Someone commented from the floor that Harry’s Place was being sued, but that most bloggers would back down as they were in no position to stand up to such threats. Julius assured us that the threat to HP, which was serious, was being responded to in a serious and tough way. To which I would add, the message this sends to claimants and the encouragement to other bloggers and ISPs, cannot be underestimated.
Julius added mischievously that occasionally he is consulted by predatory fabulously wealthy clients, and he advises them: If you want the truth, but don’t want to use your wealth in a coercive system, then why not invite the alleged defamer to a tribunal at no financial risk, where you will pay the costs, thus ensuring the truth is reached in a level playing field.
Oddly, no-one has taken up the proposal.
If that proposal doesn’t appeal to you either, you could always redress malicious gossip at no cost and without resorting to the law if you follow this man’s example.
Joanne Cash, the barrister who chaired the meeting announced she is setting up a panel for reform of defamation law, and called for people to join her. She deserves all the support she can get.
David T adds
The barrister who chaired the meeting was Joanne Cash. I remember her well from university.
Also, read Martin Bright’s report of the meeting.