“For far too long London has been the libel capital of the world,” says Mark Stephens, a London lawyer. A bill passing through the Californian legislature is the latest attempt in the US to outlaw so-called libel tourism, where plaintiffs come to England and Wales to sue writers who do not live there, with work which has sometimes never been published in the UK, for defamation. Propelled by a rare show of bipartisan unity, the bill will head to the governor’s desk for signing and become law in January if it clears the lower house - and last week’s 5-0 committee vote augers well.
Free speech advocates should rejoice. The bill, supported by the American Civil Liberties Union, the California Newspaper Publishers Association and others, tightens the screws on foreign plaintiffs, many of whom come from Hollywood.
Under American law, plaintiffs must show statements are false and that writers knew this to be so. In England the onus is on writers to defend their work, which is a costly challenge. The Californian bill would block foreign defamation rulings that fail to guarantee free speech rights available under state and US law.
The wild card is the internet. The most infamous example of libel tourism is probably the suit by Saudi billionaire Khalid bin Mahfouz levelled at the US author Rachel Ehrenfeld in 2004, when she alleged in her book, Funding Evil, that he funded al-Qaida. But, when 23 copies were sold online in England, local libel law kicked in. Ehrenfeld chose not to appear and lost. Mahfouz won substantial damages. New York responded to the case with the Libel Terrorism Protection Act. Congress is now pondering its own bill, which would allow countersuits against plaintiffs if they used foreign courts to suppress US free speech.
“The issue is just getting started on the federal level,” says Lucy Dalglish, of the Reporters Committee for Freedom of the Press. “We anticipate that we’ll see more states enact laws before Congress.” This raises the question of whether US laws against libel tourism will pressure the UK and other nations to give free speech more clout in the internet era.
