Copyright Law

Libel Tourism: A First Amendment Holiday

By David Ardia

Over the past few months, I've blogged several times (see here and here) about the proposed federal Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamation under U.S. law.  "Libel tourism" describes the practice of libel plaintiffs who pursue claims against American publishers in foreign courts that offer few, if any, of the protections for speech available in the United States. 

The federal bill is meant to address situations like that of Rachel Ehrenfeld, who was sued for libel in the United Kingdom by Saudi banker Khalid bin Mahfouz over her book, "Funding Evil: How Terrorism is Funded and How to Stop It," which she published in New York. According to evidence in the case, a mere twenty-three copies of the book were sold in England, but that was sufficient for a U.K. court to exercise jurisdiction over Ehrenfeld. As a result of her refusal to appear or contest the court's jurisdiction, the court entered judgment against Ehrenfeld in the amount of $225,000. Ehrenfeld then sought a declaratory judgment in New York federal court stating that the U.K. judgment was not enforceable in the United States because it did not comport with the First Amendment. Punting on that issue, the federal court certified a jurisdictional question to the New York Court of Appeals, which held that New York courts did not have authority to hear Ehrenfeld's case. (New York recently passed its own Libel Terrorism Protection Act to address this issue.)

Well, on Sunday the New York Times took up the issue with an editorial by Adam Cohen entitled ?Libel Tourism?: When Freedom of Speech Takes a Holiday: 

The result is what lawyers call a "chilling effect" ? authors and publishers may avoid taking on some subjects, or challenging powerful interests. That has already been happening in Britain. Craig Unger?s ?House of Bush, House of Saud: The Secret Relationship Between the World?s Two Most Powerful Dynasties? was a best seller in the United States. But its British publisher canceled plans to publish the book, reportedly out of fear of being sued. (A smaller publisher later released it.) . . .

Britain should rethink its libel laws, as the U.N. committee urged, for the sake of its citizens. But until it does, the United States should ensure that other countries? pro-plaintiff libel laws do not infect this country and diminish our proud tradition of freedom of expression.

As I've noted in the past, this is an important issue for both traditional publishers, who are increasingly moving to online distribution, and citizen media, who already use the Internet to reach audiences all over the world, including in countries that don't have adequate free speech protections. Let's hope that Congress acts quickly on this. 

For more on the proposed legislation, see Marc Randazza and Carolyn Elefant.

Full post as published by Citizen Media Law Project on September 16, 2008 (boomark / email).