By Peter Hannaford on 4.13.09 @ 6:06AM
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.
