Federal law opposing ‘libel tourism’ approved by Congress
By Rachel Ehrenfeld
NEW YORK–As the founder of the movement against libel tourism, I congratulate Congress foir unanimously passing HR 2765 (as amended by the Leahy-Sessions ’Speech’ Act) on July 27th. A bipartisan bill, the ’Speech’ Act is based on New York State’s “Libel Terrorism Protection Act” (also known as “Rachel’s Law”). The ‘Speech’Act marks the culmination of a national campaign I spearheaded following my own experiences with libel tourism.
It began when my third book, Funding Evil: How Terrorism is Financed and How to Stop It, was published in the U.S. in the Fall of 2003. In Funding Evil, I documented how Saudi billionaire Khalid bin Mahfouz funded al-Qaeda, Hamas and other terrorist organizations.
Shortly after the book was published in the U.S., Mahfouz sued me for libel in London, attempting to use the plaintiff-friendly British libel laws to intimidate me into silence. Mahfouz had used this tactic to bully more than 40 authors and a publisher into apologies for and retractions of similar revelations. While British libel laws were often used by the rich and famous to silience and intimidate critisizm, the Saudi used the British laws and courts as a weapon in the lawfare against the American and Western media, and effectively “chillled” further exposes on Saudi and Gulf funders of terrorism.
I refused to acknowledge the British court’s jurisdiction over me as I did not live in England, nor was my book published or marketed there. The English court ruled against me by default, ordering that I pay a hefty fine, apologize, retract my statements and foot Mahfouz’s substantial legal fees.
Represented by Daniel Kornstein of Kornstein Veisz Wexler & Pollard, LLP, I countersued Mahfouz in New York to prevent the enforcement of the default judgment on the grounds that it did not meet the standard of American First Amendment protections for free speech. When the court dismissed the suit for lack of jurisdiction over Mahfouz, the New York State Legislature, led by Assemblyman Rory Lancman (D), and Senator Dean Skelos (R) acted quickly, and passed “Rachel’s Law,” in April 2008, enabling the New York courts to take jurisdiction over foreign libel plaintiffs who sue New York authors and publishers abroad.
Since then, seven states, including California, have passed similar protective legislation protecting their residents.
With the SPEECH Act Congress has taken action against libel tourism – a dire threat to our freedom and democracy. Representatives Cohen (D-TN), King (R-NY) and Senators Leahy (D-VT), Sessions (R-AL), Specter (D-PA), Lieberman (D-CT), Schumer (D-NY), Wyden (D-MN), and Kyl (R-AZ), and their dedicated staffs, made the ’Speech’ Act a reality. They have taken a great step forward in securing the freedom of expression that our constitution guarantees.
The “Speech’ Act will uphold First Amendment protections for American free expression by guarding American authors and publishers from the enforcement of frivolous foreign libel suits, filed in countries that do not have our strong free speech protections. Such lawsuits are often used by “libel-tourists” in an effort to suppress the rights of American scholars, writers, and journalists to speak, write and publish freely in print and on the Internet.
The Act grants “a cause of action for declaratory judgment relief against a party who has brought a successful foreign defamation action whose judgment undermines the First Amendment,” and provides for legal fees. These measures will help diminish the severe chilling effect such suits have already had on journalists, researchers, the general media, particularly on matters of national security and public safety.
“Libel tourism threatens to undermine the principles of free speech because foreign courts often don’t place as difficult a burden on plaintiffs in libel cases,” said Congressman Steve Cohen (D-TN). “I believe our First Amendment rights to be among the most sacred principles laid out in the Constitution. It is vital we ensure that these rights are never undermined by foreign judgments.”
The editorial pages of The New York Times, The Washington Post, New York Post, Los Angeles Times, Miami Herald, and the San Diego Jewish World, as well as organizations such as the Association of American Publishers, American Library Association, the American Society of News Editors, the Independent Book Publishers Association, the American Civil Liberties Union and 9/11 Families for a Secure America, among others, have supported me in this important fight for free speech.
The unanimity of support for this bill in Congress demonstrates the importance of combating libel tourism and its chilling effects on free speech. With a stroke of his pen, signing the bill into law, President Obama will help ensure that authors and publishers maintain the right to freely wield theirs in the pursuit of legitimate research and scholarship.
That day will not come soon enough. But there is more to do.
As Senator Kyl observed; “The Congress needs to pass broader measures that permit U.S. citizens accused of libel in foreign courts to force their accusers to pay for legal fees incurred abroad and, in certain cases, additional damages. Libel tourism will continue to pose problems for Americans until those who bring foreign libel lawsuits are faced with the same kinds of financial risks they seek to inflict on others.”
In the meantime, my efforts against libel tourism have encouraged a libel reform movement in England and have led the British government to propose corrective legislation. I hope that the enactment of the ”Speech’ Act helps spread a new trend toward libel law reform, enabling the media to report safely on matters of national security and public interest globally.
Ehrenfeld is the director of the American Center for Democracy, based in New York