A recent lawsuit filed against Rachel Ehrenfeld demonstrated the huge difference between American and British libel law and looks set to dramatically alter how libel cases will be settled in the future. Ehrenfeld, a New York resident, was sued by Arab businessman Khalid Salim a Bin Mahfouz, for alleged false allegations of his links to Al Quaeda in Ehrenfeld’s 2003 book "Funding Evil: How Terrorism is Funded and How to Stop It". The controversy in the case is that Bin Mahfouz filed the lawsuit in the courts of the United Kingdom, taking advantage of their pro-plaintiff defamation laws. This practice has become common place in recent years, but Ehrenfeld’s refusal to accept the ruling against her means that this “libel tourism” may be coming to an end.
Libel is defined as printed material which causes injury to reputation. In the U.S., in order for a plaintiff to succeed in a claim for libel they must prove that the defamatory statement was published with the requisite degree of “fault”.[i] It is in this point where the discrepancy between U.S. and British libel law exists. Beginning with the New York Times Co v. Sullivan case in 1964, the U.S. Supreme Court embarked on a path of cementing the First Amendment rights of the media; by requiring that plaintiff’s prove that the defendant demonstrated knowledge that what was printed was false or that they displayed less than adequate care in determining whether it was true.
This extra burden of proof is not placed upon the Plaintiff in U.K. law and it is for this reason that a trend has emerged of plaintiffs choosing to file lawsuits for libel in the U.K., as opposed to the U.S., wherever possible, even when U.S. courts have a much stronger claim to the case.
This was the case with the suit filed against Ehrenfeld. She asserts that her book was only intended for the U.S. market; indeed only 23 copies were sold in the U.K. This did not stop Bin Mahfouz filing and prevailing in a suit in the U.K. courts, claiming his reputation was damaged there. Ehrenfeld, who failed to appear in the court proceedings in the U.K. refused to accept this verdict and turned to the New York courts, questioning Bin Mahfouz’s ability to enforce the decision in the U.S. This eventually led to New York Gov. David Patterson signing the Libel Terrorism Protection Act. This legislation provides significant protection to New York residents who have libel suits filed against them overseas. The expectation is that this bill will set a precedent that other States will surely follow.
This is certainly a very controversial issue. Having this bill in place allows American journalists to continue to pursue investigative journalism – a field which must be preserved – without the fear of a lawsuit being brought against them in another country, under completely different laws. Furthermore, should individuals such as Bin Mahfouz be allowed to take advantage of laws in the U.K. despite the fact that the U.S. has a much stronger interest in the case? However, in passing this bill, New York is effectively granting themselves authority to overturn decisions passed in the courts of another country. At a time when the U.S. is repeatedly accused of trying to impose their ideals throughout the globe, is this a smart move? The problem here is one of having regional laws governing what is now a global marketplace. Ehrenfeld’s book was not marketed in the U.K.; the 23 copies were sold over the Internet. The Internet makes it possible for content intended for an audience in one country to become distributed across the globe, with no intentionality on the part of the author. The author can surely not be held responsible for ensuring that their published material is in line with libel law in every country where it may conceivably be distributed. At the same time, it is politically amiss for one country’s courts to simply overrule the decisions of another’s. Based on this, I would agree with the resolution proposed by Julie Hilden; that an agreement should be reached between nations, deferring libel cases to the courts of the country which holds greater interest in the case.[ii] However, is this fare on the plaintiff? While many more copies of a book or article may be distributed in the U.S., it is still very much possible for the plaintiff’s reputation to be considerably damaged in the U.K. Are they not entitled to protection, therefore, under U.K. law? I don’t believe, at this time, that there is a resolution that is completely fair for everyone involved. Until there are global courts to match the global marketplace, this may be the best one available.
[ii] Hilden, 2007
Bibliography
Glodstein, N (Ed.). (2007). The Associated Press Style Book 2007. New York, NY: The Associated Press.
Hilden, J (2007, Dec, 24). The Ehrenfeld/Mahfouz case: How "Libel Tourism" undermines the First Amendment and, in the internet age, compels an international solution . Find Law, Retrieved May 17, 2008, from http://writ.news.findlaw.com/hilden/20071224.html
1 comment:
Good discussion of this issue.
Although I agree that it may be politically awkward to overrule another nation's courts, I'd argue that Great Britian has no jurisdiction over books or news reports published here. And making American reporters subject to the libel laws of other nations would make it impossible for them to report the news accurately. Reporters face enough censorship efforts already.
Oops: Is this fair (not fare) on the plaintiff?
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