Lawmakers push back on libel tourism

From the Fall 2008 issue of The News Media & The Law, page 33.

The Internet has made it possible for American journalists to reach hundreds of thousands of readers across the world. First Amendment protection, though, stops at the U.S. border.

That’s why Congress has introduced two bills that would help protect American authors and journalists from being sued for defamation in countries that provide weaker free-speech protection. Both bills are unlikely to pass this year, as both the House and the Senate are focused on the economy. But their sponsors say they are on the agenda for next year.

The bills attempt to put an end to what has become known as “libel tourism.” Compared with many other countries, America’s libel laws are particularly protective of speech. Plaintiffs who want to sue an author for defamation have come to learn they stand a better chance of winning if they bring their lawsuits in a country with courts that are less favorable to speech.

For many, Britain is that country. Unlike in the U.S., libel statutes in the United Kingdom saddle defendants with the burden of proving the truth of the statements at issue. That, coupled with the outsized legal fees media groups face if they lose at trial, has led to a balloon in the number of libel settlements, according to one study by a British firm.

None of which might interest American lawmakers, but for the Internet.

Increasingly, with news articles available instantly on computers around the globe, and books purchased by readers everywhere, American journalists and authors risk financial ruin over libel judgments in Britain, and other countries with similar laws.

It was the case of New York-based author Rachel Ehrenfeld that focused attention stateside on the issue. Ehrenfeld wrote a book in 2003 called “Funding Evil: How Terrorism is Financed and How to Stop It” alleging that billionaire Saudi business man, Khalid bin Mahfouz, gave money to Osama bin Laden and other terrorists. Mahfouz struck back with a libel lawsuit, and because 23 copies of Ehrenfeld’s book had been sent to readers in Britain, Mahfouz was able to bring the suit there.

Ehrenfeld refused to defend the suit, arguing that the courts there did not have jurisdiction over her. But the British court sided with Mahfouz, entering a default judgment ordering her to apologize, destroy all copies of the book and pay 30,000 British pounds in damages.

Ehrenfeld’s case caught the attention of the New York Legislature, which last spring passed a law that prevents courts there from recognizing foreign libel judgments.

The two federal bills on the table, one introduced by Rep. Peter King (R-NY), H.R. 5814, and the other by Rep. Steven Cohen (D-Tenn), H.R. 6146, would extend that idea by prohibiting all United States federal courts from recognizing judgments that are deemed repugnant to First Amendment law. Both bills prohibit American courts from enforcing foreign libel judgments that undercut the First Amendment.

King’s bill goes even further and allows American journalists who lose libel lawsuits in foreign countries to bring a countersuit against the people who sued them. A bill identical to King’s has also been introduced in the Senate by Sen. Arlen Specter (R-Pa), S. 2977.

The creation of that cause of action is intended to deter plaintiffs from filing libel lawsuits in foreign courts in the first place, King has said.

Cohen’s bill was passed unanimously in the House in September and was referred to the Senate Judiciary Committee. But neither King’s nor Specter’s versions have been voted on yet.

According to a staff member for the Senate Judiciary Committee, neither bill will be voted on by the committee before the term ends this year. But the bills are expected to be introduced again when the new Congress convenes in January.