Big Ben, the Tower of London, the Tate Modern: London’s landmarks keep it popular with cultural tourists. But the city has a reputation for attracting less welcome visitors as well: libel tourists, eager to take advantage of British laws that favor plaintiffs in libel actions more than American laws do.
A few highly publicized cases involve American scholars and their publishers. Now some of those publishers have stepped up their efforts to obtain legal protections in the United States against judgments levied in foreign courts. And in Britain, groups concerned that libel actions have become too costly and repressive have started a movement to change the balance.
Some British legal experts, however, say the risk of libel tourism is not as great as news reports make it out to be.
The debate about protection affects scholarly publishers and authors as well as those who write and publish for a general audience. And it has gotten more complicated as the Internet puts more information within the reach of audiences far removed from the context in which a book or journal article was first published.
A few years ago, the phrase “libel tourism” meant little to most American authors and publishers. Two cases involving American academics helped put it on the legal map.
In 2007, Cambridge University Press agreed to pulp all copies of Alms for Jihad, by Robert O. Collins, then an emeritus professor of history at the University of California at Santa Barbara (he has since died), and J. Millard Burr, a retired State Department official. The press was responding to claims by a billionaire Saudi banker, Khalid bin Mahfouz, that the book libeled him by linking him to businesses suspected of channeling money to terrorists. Mr. Mahfouz had already won a judgment in Britain on similar grounds against another scholar in the United States, Rachel Ehrenfeld, director of the American Center for Democracy, over her book Funding Evil.
Since then at least one scholarly society, the College Art Association, has faced the risk of libel tourism. In 2008 the New York-based group settled rather than appear in British court to defend statements made in a review in its publication Art Journal.
‘Libel Capital of the World’
The British are painfully aware of their country’s reputation as the legal forum of choice for anyone who doesn’t like what he reads about himself in a journal, book, or blog post. “I am not proud of reading, as I frequently do, that ‘London is the libel capital of the world,’” the Lord Chief Justice of England and Wales told the Society of Editors’ annual conference in November 2009. “I do not regard it as a badge of honor.”
The United States, with its unique First Amendment culture, has been the source of some of the most stinging criticism. British libel law has also been knocked by a United Nations committee on human rights, which raised concerns that it inhibits “critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as libel tourism.”
British groups representing publishers, writers, and researchers are worried as well, and not just because of the damage to Britain’s international reputation. “We have in the U.K. some of the most, if not the most, draconian laws anywhere,” says Simon Juden, who just stepped down as chief executive officer of the U.K. Publishers Association. “Of course this has had a chilling effect on what publishers are prepared to take.” Roughly equivalent to the Association of American Publishers, the group includes scholarly publishers such as Cambridge University Press as well as trade-oriented ones. It supports the libel-reform efforts being led by English PEN, the British branch of the international nonprofit organization dedicated to literature and human rights, and the Index on Censorship, a British group that promotes free expression.
Jonathan Heawood is English PEN’s director. “The problem now is that the spirit of English libel law is not very conducive to free speech,” he says. “I think most people broadly agree on that point, but the political challenge is to come up with reforms that are going to win cross-party backing.”
PEN and the Index on Censorship have issued a report, “Free Speech Is Not for Sale,” that lays out 10 major concerns with British libel law. Among them: “In libel, the defendant is guilty until proven innocent,” “English libel law is more about making money than saving a reputation,” and “The law does not reflect the arrival of the Internet.” Britain still follows what’s known as the Duke of Brunswick rule, which dates to the 19th century and holds that each fresh publication of libel can be actionable. In an age of electronic archives and digital downloads, that interpretation exposes authors and publishers to multiple legal actions over long periods of time.
“The multiple-publication rule, coupled with the global reach of the Internet, has contributed to the phenomenon of forum shopping and libel tourism,” the PEN-Index report concludes. “A book that would once have been available only in the United States can now be bought here. An online publication or article can be downloaded anywhere. The number of cases that can be, and are, brought to the English courts has multiplied as a result.”
Not everyone agrees with that view, though. Two legal experts, Alastair Mullis, of the University of East Anglia, and Andrew Scott, of the London School of Economics and Political Science, published a paper in January that contests some of the reformers’ claims. Its title, “Something Rotten in the State of English Libel Law? A Rejoinder to the Clamour for Reform of Defamation,” suggests their assessment of the situation.
Mr. Mullis and Mr. Scott agree that the time has come to do away with the multiple-publication rule and to control costs associated with libel actions. But they argue that “the public commentary on libel law has been remarkably one-sided, and in some respects dangerously oversimplified.” For instance, they note, the reformers have ignored cases in which the current laws have helped underdogs—when big media corporations have been successfully sued by “relatively impecunious claimants,” for instance.
The PEN-Index report seems to have captured the popular mood in Britain, however. English PEN and the Index on Censorship have joined forces with a third group, Sense About Science, to form the Libel Reform Campaign. More than 49,000 people, including well-known writers and journalists, have signed the coalition’s petition.
Their cause has been helped by a handful of high-wattage cases closely followed in the British press, most notably that of Simon Singh, a British science writer. Mr. Singh was sued for libel by the British Chiropractic Association after he wrote an article in The Guardian suggesting that certain chiropractic treatments for childhood ailments were not based on sound scientific evidence. The first court to hear the case found in favor of the association. This month an appeals court overturned that ruling. Mr. Singh hailed the outcome but made it clear that it came at a high price. “It is extraordinary this action has cost £200,000 to establish the meaning of a few words,” he said, speaking of the legal fees incurred in his defense. And the appeals court, in its ruling, judged that Mr. Singh’s published comments were “expressions of opinion” and that for plaintiffs to ask the court to have a defendant prove such arguments “is to invite the court to become an Orwellian ministry of truth.”
Such cases, along with the criticism from abroad, helped fire the interest of Parliament. A committee in the House of Commons has published two reports on press standards, privacy, and libel, the more recent in February 2010. It includes commentary and recommendations on libel tourism, the press’s right to fair comment, and the high costs of libel actions. It cites anecdotal evidence submitted by Sense About Science indicating that the threat of libel actions has thrown a shadow over science-journal editors as well as science writers like Mr. Singh. Journal editors, the group says, back away from papers that might trigger costly libel actions.
Big or Small Problem?
But such claims have been hard to pin down and put numbers to. In January, Jack Straw, the minister of justice, convened a working group to look into libel reform. The group included people from all sides, including solicitors who handle libel cases, legal specialists from the BBC and The Guardian, and representatives of the groups leading the libel-overhaul campaign. It also included one scholar, Gavin Phillipson, a professor at Durham Law School.
“There was quite a lot of debate” among the working group’s members about how big a problem libel tourism really is, he said in an interview. “It actually turned out to be hard to establish the fact. Very few cases come to trial in London” because so many get settled outside the courts.
Although he sees a need to amend the current system, Mr. Phillipson, taking a view more strongly held in Britain than in America, places a high value on preserving reputations as well as protecting what the British call “fair comment.” If the Internet puts authors more at risk of libel suits, it also makes spreading libel easier. “Now anyone can be on to hundreds of American newspapers and journals in a matter of seconds,” he said. “You can damage someone’s reputation across many, many countries.” (Interestingly, the appeals court in the Singh case noted that several British Commonwealth countries have begun to use the concept of “honest opinion” rather than “fair comment,” a change that the court said “better reflects the realities” of public discussion and debate.)
The working group handed its report to Mr. Straw last month. With a general election scheduled in May, however, it’s all but certain that no action will be taken until a new government is in place. Prospects look good, however. All three major British parties have now said they support changing libel law.
American authors and publishers, for their part, are looking to the American system for even more protection. When Rachel Ehrenfeld, author of Funding Evil, was sued in Britain by Khalid bin Mahfouz, she did not go there to contest the suit, and Mr. Mahfouz won a $225,000 judgment against her. Instead Ms. Ehrenfeld sought help in U.S. federal court to block the British court’s judgment. The U.S. court decided that it did not have jurisdiction, so in 2008 the New York State Legislature passed the Libel Tourism Protection Act, also known as “Rachel’s Law.” It gives New York courts jurisdiction over foreign litigants who win judgments against New York-based authors and publishers; those judgments can be enforced only if they meet the free-speech protections guaranteed by the U.S. and New York State constitutions.
Three other states—California, Florida, and Illinois—have passed similar laws, while Arizona, Hawaii, and New Jersey are working on their own versions, says Judith Platt, director of communications and public affairs at the Association of American Publishers and director of its Freedom to Read project.
For broader protection, the association wants a strong federal law in place. Last year Sen. Arlen Specter, Democrat of Pennsylvania, introduced the Free Speech Protection Act of 2009, citing Ms. Ehrenfeld’s case as an example of the risks posed by libel tourism. It is being redrafted this spring by the Judiciary Committee, says Ms. Platt. “If we can get a bill out, it’s going to send an awfully strong statement that we’re not looking to change laws in foreign jurisdictions, but we are extraordinarily protective of our own First Amendment rights, and rightly so,” she says.
Could such a law really shelter American authors and publishers from legal storms that come from abroad? “Even if every problem in England was resolved, the problem wouldn’t go away,” Ms. Platt says. “An American publisher, an American author, can be sued anywhere in the world and is wide open for that kind of suit because of Internet sales.”
What Congress can’t do is legislate away the very real differences in how different countries approach freedom of expression. Mr. Heawood, of English PEN, points out that both Britain and the United States are anomalies in the realm of free speech. “Seen in one way, it’s a real national embarrassment that U.S. legislatures and the Senate are considering laws to protect citizens against U.K. libel laws,” he says. “But in another way, that shows how out of step American laws are with international laws. British libel law is unusually punitive on free speech, but American libel law is unusually liberal.”
