Version abrégée en français ICI
By Barbara Kay
March 18 2011
In the U.K this week, a welcome blow for freedom of speech has been struck. Justice Secretary Kenneth Clarke unveiled reform proposals for Britain’s notoriously plaintiff-friendly libel laws that may finally end “libel tourism” there.
The term, which refers to court-shopping for jurisdictions most likely to favour plaintiffs, came into common use in the last decade. England and Wales are particularly popular for lawsuits against Americans, because the U.S. is far more protective of free speech. So the U.K. has become the venue of choice for “offended” people with deep pockets who want to shut up any writers from anywhere whose opinions they don’t like.
In the U.S., any American public figure launching a suit has to prove that what was written was not only untrue but was published with malice aforethought and “recklessly.” In the U.K., the presumption is that derogatory statements are false. Moreover “fair comment” is not well-defined – or rather not defined at all – so that defendants are subject to the biases and caprices of juries and judges. The weaknesses in the system are exploited to the hilt.
The world’s most famous libel tourist was Irish-Saudi businessman Khalid bin Mahfouz (he died in 2009), who threatened more than 40 lawsuits against those who accused him of funding terrorism. And the most famous of Mahfouz’s victims – defendant in the lawsuit that proved to be a catalyst for these new proposals – was Israeli-born writer and U.S. citizen Rachel Ehrenfeld.
Ehrenfeld wrote a book on terrorist financing,Funding Evil, which was published in 2003. In it Ehrenfeld stated that Mahfouz and his kinsmen provided financial support to Islamist terror groups. The book was published in the U.S. Only 23 copies were sold through websites registered in the U.K. but that, and the fact that excerpts had been published globally on the ABC News site, was sufficient for Mahfouz and two kinsmen to open a legal entrée for the England-based suit.
Ehrenfeld did not have the money to fight a battle she knew she was likely to lose, even though her book was meticulously researched and evidence-based. She claimed the suit in England violated her First Amendment rights in the U.S. and chose not to defend herself. Rather she countersued Mahfouz in the U.S. The English judge ruled that Ehrenfeld must pay £10,000 to each claimant plus costs, apologize for false allegations and destroy existing copies of her book.
The judgment attracted widespread criticism for its chilling effect on freedom of speech, even from theUnited Nations Human Rights Committee.
The ramifications for the judgment against Ehrenfeld were obviously calamitous for other writers. Publishers are understandably concentrated on sales. The inability to sell books abroad, even over the Internet, because of libel suit fears, must have a hugely dampening effect on what books will be accepted for publication. Mahfouz’s win was a triumph for the stealth jihad – that is, the calculated, steady infiltration of democratic institutions and the exploitation of multicultural sensitivity to “offending” minorities, using them to advance the cause of Islamism in the West.
Ehrenfeld’s case prompted a legal blowback in the U.S. In January 2008, New York State passed (unanimously) the “Libel Terrorism Protection Act,” which would amend New York’s civil procedures in order to protect Ehrenfeld and others like her. The Act enables New York courts to assert jurisdiction over anyone who has won a libel judgment abroad against a New York publisher or writer. The Act limits enforcement to judgments that satisfy “the freedom of speech and press protections guaranteed by both the United States and New York Constitutions.” California, Illinois and Florida then followed suit with their own acts.
The proposed U.K. bill is similar to the decision rendered in 2009 by the Supreme Court of Canada in Grant v. Torstar Corp. In that case the judges concluded that previous Canadian jurisprudence around defamation had been too restrictive of free speech, affirming: “While the law should provide redress for baseless attacks on reputation, defamation lawsuits, real or threatened, it should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.”
Terrorism cannot flourish without constant infusions of money. Following the money spoor back to the lairs of those who are the source of the funding is one of the few effective, non-military means of fighting terrorism. It takes courage enough to do the research and to publish it. Writers and publishers must have the full support of the legal system to pursue their work. Ending libel tourism in the West is essential to combating the stealth jihad, and news of the U.K.’s arrival at common sense on the issue is very welcome.