Libel tourism
Encyclopedia
Libel tourism is a term first coined by Geoffrey Robertson
to describe forum shopping
for libel suits. It particularly refers to the practice of pursuing a case in England and Wales
, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those accused of making derogatory statements. According to the English publishing house Sweet & Maxwell
, the number of libel cases brought by people alleged to be involved with terrorism almost tripled in England between 2006 and 2007.
A critic of English defamation law
, journalist Geoffrey Wheatcroft
, attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment
and "the caprice of juries and the malice of judges." Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan
case. "Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly."
Two other critics of English defamation law, the US lawyers Samuel A. Abady and Harvey Silverglate, have cited the example of Irish
–Saudi
businessman Khalid bin Mahfouz
, who by the time of his death in 2009, had threatened suit more than 40 times in England against those who accused him of funding terrorism. Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor Richard Perle
threatened to sue investigative reporter Seymour Hersh
in London, because of a series of critical articles Hersh had written about him. In 2006 American actress Kate Hudson
won a libel action in England against the British edition of the National Enquirer magazine after it published an article suggesting she had an eating disorder.
, an Israeli-born writer and United States citizen over her 2003 book on terrorist financing
, Funding Evil
, which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups. The book was not published in Britain, although 23 copies of her book had been purchased online through web sites registered in the UK, and excerpts from the book had been published globally on the ABC News web site. Ehrenfeld claimed that the suit in England violated her First Amendment rights under the U.S. Constitution and chose not to defend the action. Instead, she countersued in the U.S. In his judgment Justice Eady
criticised Dr. Ehrenfeld for attempting to cash in on the libel action without being prepared to defend it on its merits and specifically rebutted her suggestion of forum shopping. Eady ruled that Ehrenfeld should pay £10,000 to each plaintiff plus costs, apologize for false allegations and destroy existing copies of her book.
Eady has been internationally criticized for his perceived bias in the case and his general restrictive approach to free speech. Additionally, the libel laws which were applied are under scrutiny in England, where calls for libel law reform have increased since Ehrenfeld's case. Analyzing British libel law, the United Nations Human Rights Committee cautioned that: "practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism." The advent of the internet and the international distribution of foreign media also create the danger that a State party's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest."
and the Senate
before being signed by US President Barack Obama
on August 10, 2010.
On Jan. 13, 2008, two members of the New York State Legislature, Assemblyman
Rory I. Lancman
(D-Queens) and Senator
Dean Skelos
(R-LI), introduced a "Libel Terrorism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B) to amend the New York civil procedures in response to the Ehrenfeld case. The bill passed the New York State legislature on a rare unanimous vote. and on April 29, 2008 Gov. Paterson signed the bill into law. The Libel Terrorism Protection Act enables New York courts to assert jurisdiction over anyone who obtains a foreign libel judgment against a New York publisher or writer, and to limit enforcement to those judgments that satisfy "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions."
gave Boris Berezovsky and Nikolai Glushkov
permission to sue Forbes
for libel in the UK courts. In 2003 the case was settled when Forbes offered a partial retraction.
This raised legal questions relating to jurisdiction of the UK courts, and according to scholars it is a leading example of libel tourism.
Geoffrey Robertson
Geoffrey Ronald Robertson QC is an Australian-born human rights lawyer, academic, author and broadcaster. He holds dual Australian and British citizenship....
to describe forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
for libel suits. It particularly refers to the practice of pursuing a case in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those accused of making derogatory statements. According to the English publishing house Sweet & Maxwell
Sweet & Maxwell
Sweet & Maxwell is a British publisher specialising in legal publications. It joined the Associated Book Publishers in 1969; ABP was purchased by the Thomson Organization in 1987, and is now part of Thomson Reuters. Its British group includes W. Green in Scotland and Round Hall in Ireland...
, the number of libel cases brought by people alleged to be involved with terrorism almost tripled in England between 2006 and 2007.
A critic of English defamation law
English defamation law
Modern libel and slander laws, as implemented in many Commonwealth nations as well as in the United States and in the Republic of Ireland, are originally descended from English defamation law...
, journalist Geoffrey Wheatcroft
Geoffrey Wheatcroft
Geoffrey Albert Wheatcroft is a British journalist and writer.- Education :He was educated at University College School, London, and at New College Oxford, where he read Modern History.- Publishing and journalism :...
, attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment
Fair comment
Fair comment is a legal term for a common law defense in defamation cases .-United States:In the United States, the traditional privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures...
and "the caprice of juries and the malice of judges." Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan
New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...
case. "Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly."
Two other critics of English defamation law, the US lawyers Samuel A. Abady and Harvey Silverglate, have cited the example of Irish
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
–Saudi
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
businessman Khalid bin Mahfouz
Khalid bin Mahfouz
Khalid bin Mahfouz was a wealthy Saudi Arabian businessman residing in Ireland. He was accused of supporting al-Qaeda.As of 2002, he was believed to be confined in a hospital in Taif by Saudi authorities...
, who by the time of his death in 2009, had threatened suit more than 40 times in England against those who accused him of funding terrorism. Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor Richard Perle
Richard Perle
Richard Norman Perle is an American political advisor, consultant, and lobbyist who began his career in government, a senior staff member to Senator Henry “Scoop” Jackson on the Senate Armed Services Committee in the 1970’s...
threatened to sue investigative reporter Seymour Hersh
Seymour Hersh
Seymour Myron Hersh is an American Pulitzer Prize-winning investigative journalist and author based in Washington, D.C. He is a regular contributor to The New Yorker magazine on military and security matters...
in London, because of a series of critical articles Hersh had written about him. In 2006 American actress Kate Hudson
Kate Hudson
Kate Garry Hudson is an American actress. She came to prominence in 2001 after winning a Golden Globe and receiving several nominations, including a nomination for an Academy Award for Best Supporting Actress, for her role in Almost Famous. She then starred in the hit film How to Lose a Guy in 10...
won a libel action in England against the British edition of the National Enquirer magazine after it published an article suggesting she had an eating disorder.
The Ehrenfeld Case
Khalid bin Mahfouz and two members of his family sued Rachel EhrenfeldRachel Ehrenfeld
Dr. Rachel Ehrenfeld is an expert on terrorism and corruption-related topics. These include terror financing, economic warfare, and narco-terrorism. She has lectured on these issues in many countries, and has advised banking communities, law enforcement agencies, and governments.Dr. Ehrenfeld...
, an Israeli-born writer and United States citizen over her 2003 book on terrorist financing
Terrorist Financing
Terrorist financing came into limelight after the events of terrorism on 9/11. The US passed the USA PATRIOT Act to, among other reasons, attempt thwarting the financing of terrorism and anti-money laundering making sure these were given some sort of adequate focus by US financial institutions...
, Funding Evil
Funding Evil
Funding Evil: How Terrorism is Financed and How to Stop It is a book written by counterterrorism researcher Dr. Rachel Ehrenfeld, director of the and the Economic Warfare Institute...
, which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups. The book was not published in Britain, although 23 copies of her book had been purchased online through web sites registered in the UK, and excerpts from the book had been published globally on the ABC News web site. Ehrenfeld claimed that the suit in England violated her First Amendment rights under the U.S. Constitution and chose not to defend the action. Instead, she countersued in the U.S. In his judgment Justice Eady
David Eady
Sir David Eady , styled The Hon. Mr Justice Eady, in legal writing Eady J, is a High Court judge in England and Wales. As a judge he is known for having presided over many high-profile libel and privacy cases....
criticised Dr. Ehrenfeld for attempting to cash in on the libel action without being prepared to defend it on its merits and specifically rebutted her suggestion of forum shopping. Eady ruled that Ehrenfeld should pay £10,000 to each plaintiff plus costs, apologize for false allegations and destroy existing copies of her book.
Eady has been internationally criticized for his perceived bias in the case and his general restrictive approach to free speech. Additionally, the libel laws which were applied are under scrutiny in England, where calls for libel law reform have increased since Ehrenfeld's case. Analyzing British libel law, the United Nations Human Rights Committee cautioned that: "practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as "libel tourism." The advent of the internet and the international distribution of foreign media also create the danger that a State party's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest."
Federal
The Free Speech Protection Act of 2008 and 2009 were both bills aimed at addressing libel tourism by barring U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. Both of these bills were superseded by the SPEECH Act of 2010 which was passed unanimously in both the House of RepresentativesUnited States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
and the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
before being signed by US President Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
on August 10, 2010.
New York
In late December 2007, the Second Circuit Court of Appeals, based on a decision by the New York State Court of Appeals, ruled that the state's current "long-arm" statutes governing business transactions did not give it jurisdiction to protect author Ehrenfeld. The Court noted, however, that if the law were to change, Ehrenfeld could go back to court.On Jan. 13, 2008, two members of the New York State Legislature, Assemblyman
New York State Assembly
The New York State Assembly is the lower house of the New York State Legislature. The Assembly is composed of 150 members representing an equal number of districts, with each district having an average population of 128,652...
Rory I. Lancman
Rory I. Lancman
Rory I. Lancman is a New York State Assembly member representing the 25th Assembly District in Queens, New York.Lancman was born and raised in Queens, where he has lived in what is now the 25th Assembly District for thirty-two years. He is a graduate of New York City Public School 164, Parsons...
(D-Queens) and Senator
New York State Senate
The New York State Senate is one of two houses in the New York State Legislature and has members each elected to two-year terms. There are no limits on the number of terms one may serve...
Dean Skelos
Dean Skelos
Dean G. Skelos is an American politician and the Republican Temporary President and Majority Leader of the New York State Senate. Skelos represents District 9 in the State Senate, which comprises the southwest region of Nassau County. He is the second Long Islander to hold the position of Majority...
(R-LI), introduced a "Libel Terrorism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B) to amend the New York civil procedures in response to the Ehrenfeld case. The bill passed the New York State legislature on a rare unanimous vote. and on April 29, 2008 Gov. Paterson signed the bill into law. The Libel Terrorism Protection Act enables New York courts to assert jurisdiction over anyone who obtains a foreign libel judgment against a New York publisher or writer, and to limit enforcement to those judgments that satisfy "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions."
California
In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act). It took effect January 1, 2010. It provides that California court shall not recognize a foreign-country judgment if "the judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions" (CCCP sec. 1716(c)(9)) and other protections. (See Cal. Code of Civil Procedure sections 1716 and 1717, as amended by Chapter 579, Statutes of 2009 (SB 320 - Corbett).) (http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0301-0350/sb_320_bill_20091011_chaptered.pdf.) The law received significant bi-partisan support. (See CA Leg Counsel bill/vote records)Illinois
Illinois also enacted a Libel Tourism law in August 2008 which is similar to that of the statute passed in New York. (See 735 ILL. COMP. STAT 5/12-621 (b)(7) (2009); 735 ILL. COMP. STAT. 5/2-209 (b-5) (2009).)Florida
In May 2009, Florida also enacted a Libel Tourism law similar to the law passed in New York. (Florida Statutes 55.605 (2)(h); 55.6055)Berezovsky v Michaels
In 2000, the House of LordsHouse of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
gave Boris Berezovsky and Nikolai Glushkov
Nikolai Glushkov
Nikolay Glushkov is a former Deputy Director-General of Aeroflot and a former Finance Manager of AvtoVAZ.Glushkov had been AvtoVAZ's Finance Chief until he left his job in autumn 1995 and was appointed as Deputy General Director of Aeroflot on request from Yevgeny Shaposhnikov in February...
permission to sue Forbes
Forbes
Forbes is an American publishing and media company. Its flagship publication, the Forbes magazine, is published biweekly. Its primary competitors in the national business magazine category are Fortune, which is also published biweekly, and Business Week...
for libel in the UK courts. In 2003 the case was settled when Forbes offered a partial retraction.
This raised legal questions relating to jurisdiction of the UK courts, and according to scholars it is a leading example of libel tourism.
See also
- Defamation
- Forum shoppingForum shoppingForum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
- Khalid bin MahfouzKhalid bin MahfouzKhalid bin Mahfouz was a wealthy Saudi Arabian businessman residing in Ireland. He was accused of supporting al-Qaeda.As of 2002, he was believed to be confined in a hospital in Taif by Saudi authorities...
- Simon Singh
External links
- THE LIBEL TOURIST. A short documentary detailing one such case involving bin Mahfouz