{"id":38624,"date":"2012-07-25T16:41:43","date_gmt":"2012-07-25T15:41:43","guid":{"rendered":"http:\/\/www.indexoncensorship.org\/?p=38624"},"modified":"2017-01-09T16:23:43","modified_gmt":"2017-01-09T16:23:43","slug":"libel-tourism-rachel-ehrenfeld","status":"publish","type":"post","link":"https:\/\/www.indexoncensorship.org\/newsite02may\/?p=38624","title":{"rendered":"Britain\u2019s half-hearted bid to reform libel law"},"content":{"rendered":"

\"\"<\/a><\/em>The Defamation Bill is an achievement, but more must be done to reform England’s libel laws and encourage debate in the public interest, says Rachel Ehrenfeld<\/strong>
\n<\/p>\n

This article originally appeared in the International Herald Tribune<\/a> and is cross-posted with permission<\/em><\/p>\n

When my book \u201cFunding Evil: How Terrorism is Financed \u2014 and How to Stop It\u201d was first published in New York in 2003, I never imagined that attempts to silence my work would emanate from London\u2019s High Court rather than, say, Saudi Arabia. The book contained information from numerous reliable open sources on reputed funders of terrorism, including the Saudi billionaire Khalid bin Mahfouz, who allegedly funded Al Qaeda.<\/p>\n

Mahfouz, the former owner of the biggest bank in the Middle East, the National Commercial Bank of Saudi Arabia, claimed through his British lawyers that the 23 copies of my book that were bought in Britain through the Internet damaged his reputation. That claim was accepted by a judge of the High Court, David Eady.<\/p>\n

The court was acting according to the archaic English libel law<\/a> that predates not only the Internet, but also the light bulb. It chills free speech through the award of disproportionate damages, a lack of viable defenses and the application of the law to cases with only the slightest links to Britain, even when neither party lives there, a practice that has led to what is known as \u201clibel tourism.\u201d<\/p>\n

Wealthy foreign claimants have turned London into the \u201cMecca of libel tourism\u201d and made the English Bar happy. On the other side, a shortage of funds has led many authors to retract, apologize and often pay damages rather than lose a case against a well-funded claimant and potentially go bankrupt. Even a well-heeled publisher like the Cambridge University Press\u00a0chose to pull back<\/a>\u00a0\u201cAlms for Jihad: Charity and Terrorism in the Islamic World\u201d by the American authors Millard Burr and Robert Collins, even though it had had plenty of time to check the facts.<\/p>\n

As an American citizen with free speech rights guaranteed by the US Constitution, I refused to acknowledge the jurisdiction of the British court. Besides, my book was neither published nor marketed in Britain.<\/p>\n

Nevertheless, Justice Eady granted Mahfouz a judgment by default, awarding him hundreds of thousands of dollars in damages and legal fees. Mahfouz set up a Web site to advertise this and 40 other apologies, retractions and settlements. The site, like the lawsuits, was intended to intimidate publishers so they would not take on books of potentially high\u00a0public interest — not only on terrorism, but also on issues such as public health and security.<\/p>\n

My fight against the enforcement of the British libel judgment — first in New York and then with the US federal government — and the subsequent criticism of British libel tourism by American legislators and media, led to the passage of local and federal laws protecting American journalists, authors and publishers from the enforcement of any foreign libel judgments.<\/p>\n

The Speech Act<\/a> that was passed unanimously by the US Congress and signed into law in the summer of 2010 protects American writers like me from the chilling effect of foreign libel laws. John Whittingdale, chairman of the British Parliament\u2019s culture and media committee, described this development as a \u201cnational humiliation.\u201d<\/p>\n

The United Nations Human Rights Committee has also warned Britain to stop the practice of libel tourism, which, it said, affected \u201cfreedom of expression worldwide on matters of valid\u00a0public interest.\u201d This in turn encouraged various British NGOs such as Index on Censorship, English PEN and Sense About Science to start a high-profile campaign, which led the British government to finally present libel reform legislation to Parliament.<\/p>\n

The\u00a0proposed Defamation Bill<\/a>, which received its second reading in the House of Commons on June 12, would\u00a0end the practice of libel tourism<\/a>. It would also introduce a higher threshold for libel claims, requiring the claimant to demonstrate that his reputation has suffered or is likely to suffer \u201cserious harm.\u201d Although this reform may make it less easy for trivial or vexatious claims to get to court, the definition of \u201cserious\u201d will still be down to the judge\u2019s discretion.<\/p>\n

Perhaps the bill\u2019s greatest weakness is its failure to provide a\u00a0robust\u00a0\u201cpublic interest\u201d defense<\/a>, which has been a key demand of\u00a0campaigners. In the United States,\u00a0New York Times Co v Sullivan<\/a>\u00a0(1964) established an \u201cactual malice\u201d standard that the press has to meet to avoid action for defamation when reporting on public figures. The English bill however requires writers and journalists to demonstrate that they have been \u201cresponsible\u201d\u00a0in order to\u00a0qualify for a\u00a0public interest\u00a0defense.<\/p>\n

The bill includes a checklist of what is defined as \u201cresponsible publication,\u201d ranging from the tone of the statement to the \u201cimportance\u201d of what is being reported. But compliance with the list\u2019s requirements is debatable and expensive. The uncertainty of this defense will continue to chill the efforts of investigative journalists, scientists and human rights groups from exposing corruption and wrongdoing.<\/p>\n

Although the restricting of libel tourism should be considered an achievement<\/a>, if I were a British academic writing in England on a matter of\u00a0public interest, such progress would do little to protect me or other British academicians. According the proposed bill, we would still lack reliable legal defense from libel. Thus it behoves the British legislators to amend the bill<\/a> to allow genuine criticism and encourage open debate on all matters of public interest.<\/p>\n

Rachel Ehrenfeld\u00a0is director of New York-based American Center\u00a0for Democracy and the Economic Warfare Institute<\/em><\/p>\n

Learn more about the Libel Reform Campaign here<\/a><\/h3>\n

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