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The 'libel tourism' threat
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Thanks to the Internet, universal access to the printed word and economic globalization, the 21st century is expected to be shaped by the free exchange of ideas. But casting a shadow over this optimistic prediction is the emerging threat of "libel tourism."
In 2004, Khalid bin Mahfouz, a billionaire Saudi businessman, took action against Rachel Ehrenfeld, an American author whose book "Funding Evil: How Terrorism Is Financed and How to Stop It," published in 2003, argues that bin Mahfouz has financed Osama bin Laden and other terrorists. Bin Mahfouz sued Ehrenfeld for libel in Britain, where libel laws impose an onerous burden on authors to prove the truth of their statements, and in 2005 won a default judgment ordering her to apologize, destroy all copies of the book and pay the sheik roughly $230,000 in damages.
The book had never been published or sold in Britain, but about 20 people had ordered it online and had it shipped there. British courts asserted jurisdiction, and Ehrenfeld found herself subject to the laws of another country.
Until this case came along, American authors and publishers thought that unless their books were actually published in Britain, they would not be subject to its rather draconian libel laws, which put the burden of proof on the defendant rather than the plaintiff as American laws do, and greatly restrict what information writers can present as evidence in their defense. Now it appears that wealthy and powerful people who object to a book can simply find a country with sympathetic laws, have a book shipped there and sue.
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Bin Mahfouz has a history of challenging those who have accused him of links to terrorism. He has sued or threatened to sue a series of publications and has instituted legal action in the cases of at least four different books. He has won many of these cases by default or through settlements, because authors often cannot marshal the resources to defend themselves. Ehrenfeld herself lost by default, and is relying on the hope that bin Mahfouz's judgment will not be enforced in the United States.
American courts and publishers must take steps to preserve the unique protections American authors and journalists treasure. If they do not, ultimately it is readers who will be deprived of information and ideas.
What are the solutions? First, publishers must fight against libel suits on behalf of their authors. Last spring, bin Mahfouz sued Cambridge University Press for publishing "Alms for Jihad," which contends that certain Islamic charities are diverting funds to terrorist causes. Rather than contest these accusations, Cambridge apologized, withdrew the book from circulation, agreed to shred any remaining copies and even asked libraries to return their copies to be destroyed.
What's notable in this case is that bin Mahfouz sued the publisher, which had strong financial incentives to settle, rather than the American authors, J. Millard Burr and Robert O. Collins, Sudan experts who have a vested interest in proving the truth of their allegations.
Without even a chance to fight, the authors have suffered a serious blow to their reputations.
No single author can fight extremely wealthy opponents, particularly in British courts. If publishers show a willingness to capitulate, people like bin Mahfouz get the upper hand.
American courts, for their part, must resist enforcing global legal standards or judgments that curtail a free press. The United States Southern District Court of New York, which is considering whether the judgment against Ehrenfeld should be enforced, should recognize the danger of libel tourism and rule for Ehrenfeld when it issues its decision this fall.
To protect authors in the future, Congress should pass legislation preventing any American court - state or federal - from enforcing libel judgments issued by foreign courts, so that anyone wishing to sue an American for libel must do so in the United States. This would be an exception to our usual practice with regard to British court judgments, which are usually enforced here. But because the differences in American and British libel laws are drastic, special protections are needed to uphold our tradition of free speech.
Michael J. Broyde is a professor of law and Deborah E. Lipstadt a professor of Jewish studies at Emory University.
