There’s a pernicious trend toward using foreign libel laws to chill American freedom of speech.
Meet Khalid bin Mahfouz, libel tourist. This rich Saudi didn’t like what Rachel Ehrenfeld wrote about him in her 2003 book Funding Terrorism, so he sued her. She heads a small New York City-based think tank dedicated to uncovering the sources of funds for radical Islamist terrorists. In the book she alleged that Mr. Mahfouz was an important source.
The book was published in the United States; however, a few copies were sold, via Internet, in the United Kingdom. KBM is no dummy. He understood that the U.S. has a high standard of proof for libel. The plaintiff must prove that not only was the assertion untrue, but also that the writer knew it was false and wrote about it anyway, “with a reckless disregard for the truth.” Those three elements are hard to prove; hence. relatively few libel suits are brought in the United States.
Mahfouz found a much easier venue: the United Kingdom, where libel is treated very differently. There, it is the defendant who must do the proving, that his or her assertion was true. Unable to go to London to defend herself, Ms. Ehrenfeld defaulted and Mahfouz won a $160,000 judgment. Moreover, he hoped his judicial victory would have a chilling effect on anyone else wanting to trace and write about the circuitous movement of money into the hands of murderous radicals.
The author worried Mahfouz would try to collect from her in a U.S. court. At that point, the New York legislature stepped in and passed a law protecting its citizens from such “libel tourism.” Illinois followed suit and California is now considering similar legislation. In testimony to a California state senate hearing, author Ehrenfeld minced no words, “Libel tourism is a pernicious and growing phenomenon whereby wealthy and corrupt terror financiers exploit plaintiff-friendly foreign libel laws and expansive Internet jurisdiction to silence American authors, producers and publishers. Since September 11 2001, foreign libel laws have become a potent weapon used by the forces of tyranny who seek to undermine our freedom.” The legislation is expected to pass.
Even more encouraging for authors and publishers and those who produce films is federal legislation sponsored by Senators Jos. Lieberman (I-CT) and Arlen Specter (R-PA), S. 449, which would protect writers nationwide. It has an important added benefit: any writer sued for libel would be permitted to file a countersuit against “libel tourist” plaintiffs who try to use foreign courts to silence free expression by Americans. Turnabout’s fair play.
Mr. Hannaford is a member of the Committee on the Present Danger.