I am posting this on behalf of analyst Jennifer White:
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Money Talks: Truly Deterring Libel Tourism
By Jennifer White
During my days working as an attorney on large Wall Street financial cases, one of my mentors said, as I pondered the organizational review of what I knew would be tens of thousands of pieces of paper: “follow the money.” While undoubtedly there have been several equally wise words that I have not taken to heart, that comment has never failed to cut to the kernel of any given matter I have worked on, whether be it worth hundreds of millions or a few thousand dollars.
“The Free Speech Protection Act of 2009” has been introduced in both the House and Senate, (S. 449 introduced by Senators Lieberman and Specter on February 13, 2009 and H.R. 1304, introduced by Representative King on March 4, 2009), specifically to staunch the pernicious practice of libel tourism.
Libel tourism is a tactic used by radical Islamists and their supporters to muzzle information about their activities. Specifically, libel tourists file suits in foreign courts (generally in which they have little or no connection) in order to advantage of that jurisdiction’s law and procedure. England has been a favored spot for these suits as speech is far less protected in England than under our First Amendment, and in English courts, the burden of proof lies on the defendant.
The danger of libel tourism should never be underemphasized. Libel tourism at the heart of lawfare, or the ways in which radical Islamists use our laws against us. Lawfare, a far more subtle foe than groundfare, has already substantially furthered the radical Islamist agenda.
June 15 of this year, the House enacted H.R. 2765, “The Free Speech Protection Act of 2008.” While symbolically important, it utterly fails as a true deterrent to libel tourism. H.R. 2765 prevented courts from recognizing foreign judgments that conflicted with the First Amendment, but stopped short of providing those harmed by libel tourism with a separate cause of action. Both H.R. 1304 and S.449, on the other hand, contain three provisions absolutely crucial if we truly wish to deter libel tourism: 1) the creation of a federal cause of action that the harmed U.S. person can bring; 2) damages should the harmed U.S. person prevail in his or her action; and 3) the possibility of treble damages.
Money talks. Libel tourism was pursued in earnest in response against New York based author Rachel Ehrenfeld for her 2003 book “Funding Evil: How Terrorism is Financed and How to Stop it.” Dr. Ehrenfeld was sued in England by Khalid bin Mahfouz, a Saudi billionaire featured in her book, which, among other things, detailed the Saudi money trail financing the radical Islamist agenda. The British court, applying English law, found for Mahfouz, and issued a default judgment against Ehrenfeld. Bin Mahfouz died August 16, but the practice of libel tourism lives on.
New York state responded to the default judgment entered against Ehrenfeld by enacting a law that prevented New York state courts from recognizing foreign libel judgments that are inconsistent with the First Amendment, referred to as “Rachel’s law.” Illinois and Florida have passed similar laws and California is poised to do so.
The 2008 predecessor to the bipartisan 2009 House and Senate “Free Speech” bills is virtually toothless as a true deterrent. While symbolically important, the law merely allows the non-enforcement of foreign defamation judgments the U.S. if the expression in question is not a violation of the First Amendment. As a number of federal courts had already reached this conclusion, H.R 2765, in fact, merely codified what a number of federal courts had already decided.
Notably, the merry band of Saudi libel tourists (of which bin Mahfouz was a leader) did not appear to give the introduction of The Free Speech Protection Act of 2008 much thought. Records reveal that little, if any, real lobbying done by the Saudis to prevent its passage. And really, why should they have bothered? Without the ability of their victims to bring a cause of action against them and collect damages, what risk were they really running by continuing to suppress the truth?
The Freedom of Speech Act of 2009, however, presents a whole new ballgame, one with real consequences for the Saudis who have, in the words of one Member of Parliament, made libel tourism an “international scandal” and a mockery of the British courts – continuing their game will likely result in large damage awards against them.
Both H.R. 1304 and S. 449 appear stalled in committee – in both cases the House and Senate Judiciary Subcommittees on Courts and Competition. For actual protection against libel tourism, the critical pieces of The Freedom of Expression Act of 2009 must stay in place –the ability for the harmed U.S. person to bring an action and the corresponding damages provisions. bin Mahfouz’s son, Abdulrahman, who engaged in serial libel tourism with his father, appears ready, willing and able to continue the practice. Without the crucial protections of the Free Speech Act of 2009, this bipartisan legislative intiative will turn into yet another symbolic, but toothless, weapon against libel tourism.
Notably, a Saudi initiative to prevent the Freedom of Speech Act of 2009 from passing is newly in place. According to a Member of Parliament who has asked that the British Law Society look into this issue, Shillings is one of the two most active British law firms acting on behalf of libel tourists. Shillings recently teamed up with a prominent D.C firm, one without any involvement in any previous libel tourism suits, but one with an active practice on the Hill, to “investigate” the issue. Already “seminars” on the issue of libel tourism are planned in the District as well as in London. (London appears necessary as various members of Parliament are beginning to express concerns about the issue.)
Money talks. And it speaks in various ways. As my partner meant long ago and Ehrenfeld experienced first hand, money talks by revealing information about alliances, sources and other information. In recent years this has proven vital to our national security, as so aptly demonstrated by Ehrenfeld and others.
Money also talks in that its use influences outcomes. We cannot allow money to talk its way out of the passage of the Freedom of Speech Act of 2009. As Representative King stated: “Our journalists provide us with insight on issues that affect all Americans, such as war and terrorism…We cannot allow their voices to be silenced by those who prefer to keep secret the inner details of these issues.”
Pass the Free Speech Protection Act of 2009
By Kevin Mitchell
Americans are increasingly being sued for libel in foreign countries whose laws are inconsistent with the freedom of speech granted by the U.S. Constitution. In addition to journalists and bloggers, corporate travelers, flight crews, university researchers, analysts and organizations that issue travel warnings, including corporate travel departments, are at growing risk.
The Free Speech Protection Act of 2009 (S.449) was introduced in the U.S. Senate in February 2009 in response to cases like the one involving Dr. Rachel Ehrenfeld, an academic who writes on terrorism and lectures all over the world. Her 2003 book, Funding Evil, triggered a lawsuit in the UK by a wealthy Saudi businessman who claimed he was libeled in the book. The differences in American and British libel laws are substantial. For example, UK defendants have to prove allegations are true; in contrast, in the U.S. plaintiffs must prove allegations are false. The Saudi won a judgment of $250,000 against Ehrenfeld; sales of her book were banned in the UK; and she can no longer travel there.
The Ehrenfeld suit has been just the most prominent of cases known under the general rubric "libel tourism" in which foreign nationals, claiming to be offended by something written in the U.S. by journalists, researchers or scientists, travel to pliant courts in third countries and obtain libel judgments against American defendants, even though the allegedly offensive speech would be fully protected under the U.S. Constitution. These suits can have a chilling effect on research and publishing, and on U.S. national security. The objective of S.449 is to ensure that libel judgments issued by foreign courts cannot be enforced in the U.S. unless our legal standards for libel are met.
An Ominous New Twist
U.S. journalist and business travel contributor for The New York Times Joe Sharkey covered a plane crash in Brazil, in which he was involved. On Sept. 29, 2006 there was a midair collision at 37,000 feet over the Amazon between a Brazilian 737 and a business jet, on which Sharkey was a passenger. All 154 on the 737 died; the seven crew and passengers on the badly damaged business jet made an emergency landing in the jungle. Sharkey wrote about it once he returned home in the Times and on his blog and conducted interviews in which he was critical of Brazil’s air traffic control system. He vigorously defended the American business-jet pilots who Brazil had been quick to charge with criminal negligence.
On September 16, 2009 Sharkey was served with a complaint seeking US$279,850 in damages. The plaintiff in the lawsuit is identified as Brazilian Rosane Gutjhar who asserts, in a novel claim, that Sharkey offended her country’s dignity in his writings and interviews. Although Gutjhar’s husband died in the crash, Sharkey did not know her, or mention her name at any time. In other words, the plaintiff doesn't have to claim she was personally libeled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the dignity or honor of Brazil in any case involving a crime -- the pilots, Joseph Lepore and Jan Paladino remain on criminal trial in Brazil, in absentia.
The basis of Gutjhar’s suit is that as a Brazilian citizen she “feels discriminated against" by Sharkey’s forceful reporting and commentary in the U.S. about Brazil's alleged cover-up of the causes of the crash. The accuracy of Sharkey’s writings and comments has never been challenged. Sharkey claims that nothing he said or was alleged to have said would constitute libel in the U.S., or even come close. The Free Speech Protection Act would cover libel judgments in foreign countries where the alleged offense would not meet U.S. standards for libel. With Sharkey’s case, it's clear the scope of what constitutes libel has been broadened to include insulting the dignity of a foreign country.
If Brazil, host of the 2016 Olympics, that will no doubt be attended by many U.S. corporate executives for the purpose of entertaining clients, can claim a ruinous judgment in the U.S. against an American citizen who has "offended" that nation, what is to stop any other country -- Iran, Libya, North Korea -- from pursuing the same course of action? And it could be directed not just against journalists or bloggers, but corporate and university travelers and their travel departments.
The near-perfect reach of the Internet has placed Americans, their free speech and their finances in harm’s way. At risk are travel managers issuing country-specific travel warnings, business travelers posting unfavorable trip reviews on social media sites, flight crews posting comments on industry bulletin boards or university researchers publishing negative reports. The Free Speech Protection Act of 2009 needs to be passed into law as soon as possible.
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Posted by: Kevin Mitchell | October 18, 2009 at 06:30
Thanks, Ms. White, for the article & explanation of libel "tourism." I'm also concerned about the movement abroad to ban any "anti-Islamic" speech. All people should be able to criticize any political system, any religion, and any financial activity they wish!
Posted by: American Delight | October 20, 2009 at 18:28
The Freedom of Speech is such a beautiful thing.
Posted by: Peter | October 28, 2009 at 17:48