The rise of libel tourism

Free speech, the bedrock of liberal society, is being seriously threatened by an unlikely coalition of British law and wealthy Arabs.

In 2005, the High Court of Justice in London rendered a verdict against author Rachel Ehrenfeld, an American citizen, in a libel lawsuit brought by Sheikh Khalid Salim bin Mahfouz, a Saudi citizen and former president and CEO of the National Commerce Bank of Saudi Arabia. Ehrenfeld’s book, “Funding Evil: How Terrorism is Financed – and How to Stop It,” claimed that Mahfouz was financially supporting terrorism. “Funding Evil” was neither published nor distributed in the UK, but, because the book could be purchased online, the High Court allowed the suit to proceed. Ehrenfeld refused to participate in the trial and the Court entered a judgment against her, awarding Mahfouz $225,900 in damages and expenses and ordering her to publicly apologize and destroy her book.

Despite a long and shared legal history between the U.S. and UK, the two systems are markedly at odds when it comes to defamation laws. To protect the integrity of a free press and the First Amendment, U.S. law requires libel plaintiffs prove defamation.

In the UK, however, libel plaintiffs need only sit back and wait while defendants are forced to spend many dollars proving their innocence. And so, UK courts have become popular venues for defamation plaintiffs across the globe, now known as “libel tourists.”

Over the years, many writers, journalists and publishers, unable to fight the lengthy and costly litigation, have been silenced by libel tourists like Mahfouz. In another recent case, two American academics had their book on terror funding, “Alms for Jihad,” recalled by the publisher – Cambridge University Press – and then literally burned after the mere threat of a lawsuit.

More and more publishers in England, Canada and the U.S. are afraid to produce books dealing with Saudi Arabia for fear of crippling lawsuits. Yet there has been little or no outcry from free speech advocates.

Ehrenfeld chose to protect her right to free expression as an American citizen and brought her fight to American courts, seeking their protection from the British court, which is trying to have the decision against her enforced here. The New York State Court of Appeals will now decide whether the British decision can be enforced in the U.S. It is a decision that will be crucial for American writers and may, in effect, more broadly deny American citizens their right to free speech.

With the broad reach of the Internet, the possibility of being dragged into libel cases in Britain is nearly limitless. The U.S. judicial system ought to safeguard the foundation of our society and protect those who seek to express themselves freely within the limits and guidelines of American law. And all Americans who value their right to free speech should be writing their congressmen, demanding that laws protecting free speech be strengthened against depredations by foreign courts and oil sheikhs.

Elizabeth Samson co-wrote this piece. She is an international lawyer and Legacy Heritage Fellow at the David Project.

This article can also be read at http://www.thejewishadvocate.com/this_weeks_issue/columnists/jacobs/?content_id=4160