March 18, 2008

American Scholar Fights British 'Libel Tourism' Judgment in the U.S.

An American scholar facing libel charges in Britain has turned to the American legal system and the New York State Legislature for help. Rachel Ehrenfeld, author of Funding Evil: How Terrorism Is Financed and How to Stop It (Bonus Books), was hit with a $225,000 judgment in a British libel suit brought against her in 2004 by a Saudi billionaire, Khalid bin Mahfouz.

In her book, Ms. Ehrenfeld asserts that Mr. Mahfouz has been involved in channeling money to Osama bin Laden and Al Qaeda. The financier denied the allegation and took her to court in Britain, where libel claims are far easier to press than they are in the United States. The practice is known as libel tourism.

“That’s the Damocles-sword effect,” Ms. Ehrenfeld told the Chicago Tribune, which ran an update on the protracted legal struggle yesterday. “He’s holding it above my head to intimidate me and others.”

The case has been through several rounds in Britain. After the latest, Ms. Ehrenfeld brought suit in U.S. federal court, hoping to prevent Mr. Mahfouz from enforcing the British judgment in this country, the Tribune reported.

When the federal court decided that it did not have enough jurisdiction to issue such an order, the New York State Legislature introduced a First Amendment-style bill — known as the Libel Terrorism Reform Act or, to some, “Rachel’s Law” — that would protect New York writers such as Ms. Ehrenfeld from foreign libel judgments. The bill won unanimous support in the State Senate but has stalled in the Assembly over worries that it may be unconstitutional, according to the Tribune.

Mr. Mahfouz has been involved in a number of similar actions against authors and publishers. As the Tribune noted, he maintains a Web site on which he lists some of those actions. In August 2007, Cambridge University Press agreed to pulp all remaining copies of its book Alms for Jihad: Charity and Terrorism in the Islamic World in response to a threatened lawsuit by the Saudi banker. —Jennifer Howard

Comments

1. It’s good to see Cambridge University Press adhering to the British tradition of courage under fire. Something of a greatest-generation thingy going on there, wot?

   — S. Britchky    Mar 18, 02:05 PM    #

2. Hey, CHE, how about an article analyzing the legal issues here. You note that the NYS Assembly is concerned about the constitutionality of the proposed law. Some of us would like to know more.

   — jutland    Mar 18, 03:50 PM    #

3. Racist/xenophobic bigotry apart, people have to realise that either you can substantiate what you write when it damages someone’s reputation, or otherwise make clear it’s a case of mere opinion. Slander is so very easy when it concerns “others”. Make sure of the facts, write a decent book, and then you’ll have nothing to fear. What would she be saying now if the banker had threatened her with fatwa?…

   — A middle-aged teacher    Mar 18, 03:56 PM    #

4. So the Redcoats are coming again. I suggest that “middle-aged teacher” (3) and the */%@ British read the resolution of the Declaration of Independence. Why do British courts think they have jurisdiction in the United States of America? I join the call for some legal analysis here.

   — Joseph F Foster    Mar 18, 04:12 PM    #

5. I think it behooves us all to dig a bit deeper and read the Chicago Tribune article. She chose not to defend the case in British court so there never was an actual trial. Additionally, British libel law requires that the author prove that the claims are true. This can involve revealing confidential sources, something that reporters and authors in the US go to jail to prevent. Additionally, the cost of hiring a solicitor in the UK can be prohibitive when the outcome is dubious at best. I do hope that the British court is unable to reach her US based assets since it would undermine our own 1st Amendment protections. If all it takes is to have something published online or a copy of your book sold to someone in another country to have that country’s free speech standards apply to you, then our protections become meaningless.

   — JS    Mar 18, 04:14 PM    #

6. If Ms. Ehrenfeld marketed a book in the U.K. that said I was a terrorist financeer and I knew she was mistaken, I would first contact her to try to elicit the source of her mistaken conclusion and to ask for a retraction. If she persisted, I would call her publisher and repeat the process. If they persisted, I’d haul her into a British court and make her prove the slanderous allegation she made about me. If she would not do that, I’d take the lying, sorry- ass bitch to the cleaners, and I don’t care a rat’s patooey if she had first amendment rights in the US or not. No one is going to slander my good name and get away with it.

   — marci    Mar 18, 04:32 PM    #

7. First off, no one cares, “marci,” what you would do under these circumstances; this is an article that involves complex issues of libel, international law, and first amendment rights, and I too would like to hear more about the legal issues involved. Secondly, your ignorance of the law is notable: the point of contention here involves libel, not slander. The former refers to written communication, the latter to speech. And finally, I am fairly certain that most if not all of CHE’s readers find your language and mode of experession offensive. Please attempt to communicate in a civil fashion in the future.

   — podon    Mar 18, 05:05 PM    #

8. Ah, but what if her allegations are not libelous? If the book was published in the US, why did Mr. Mahfouz not prosecute his case in the U.S.? Certainly a lack of means cannot be at issue if he is as wealthy as he is described as being. Is it possible that his lodging his action in England is an instance of venue shopping just as plainly as is her response?

   — another view    Mar 18, 05:17 PM    #

9. British law on this issue contradicts American law, which holds that one must prove that an allegedly libelous statement is both false and maliciously motivated. As for constitutionality, the Supremacy Clause says that the Constitution and all laws made in pursuance thereof [including U.S. laws about libel] shall be the supreme law of the land. In this country, at least, U.S. law on libel trumps the libel laws of every other counry on the face of the globe. Let him prove her false in a U.S. court, AND let him prove as well that she was maliciously motivated. If he can do both of those in a U.S. court of law, then he can collect damages. Otherwise, he doesn’t have a prayer. . .

   Landrum Kelly, Jr., Ph.D., Political Science, Florida, 1978

   — Landrum Kelly    Mar 18, 05:45 PM    #

10. I am very troubled by the attitude expressed by several contributors that Americans are above the law in other countries, or that American law should apply everywhere. The world is not an American colony. If a book making false allegations is published in Britain, one should expect to be subject to British law as surely as if one took someone else’s car in Britain. Theft of someone’s reputation should be every bit as serious as theft of their physical property. Libel chill is very serious and deserves our attention, but surely the crux of the matter is whether the writings are true. Disseminating falsehoods steals a reputation whether it was done maliciously or not. British law recognizes that and puts more emphasis on truth than intent, but launching a libel suit in Britain is dangerous to the plaintiff if the allegations are true, as Oscar Wilde (among many others) discovered.

    — Troubled    Mar 19, 03:44 AM    #

11. Bonus Books seems to be a US publisher based in Santa Monica, CA.

    — Ken    Mar 19, 08:26 AM    #

12. I think it’s disturbing that UK laws can result in a publisher destroying copies of a book that is only being marketed in the US (and can lead to the publisher sending pages that “correct” the record – that is, give the litigant’s side – to libraries telling them to either withdraw the books or insert the page). The suit was brought on the basis of a few books sneaking across the border, as books will. This is a book published in the US for a US audience being destroyed because of a lawsuit in another country.

    What she wrote would stand up in a US court as adequately substantiated for our laws. This is an effective form of censorship by threatening publishes with prohibitive legal costs.

    No doubt it would have all quietly gone away had the author not decided to take legal action herself to seek discovery – so she could not just defend herself, but could further substantiate her claims.

    — BarbaraFister    Mar 19, 08:31 AM    #

13. I like marci. I find her posts eye opening and refreshing even if I don’t always agree with them. I commend her suggestions to attempt an informal, collaborative approach to resolving the situation before going bullistic. It doesn’t matter whether it is slander or libel, either involves saying troubling things about a person that may get the writer or speaker in trouble. No one needs be a legal expert to understand that and understanding that was not necessary to Marci’s post. I am concerned about podon, who’s seems to have an appreciation of the law yet engages in an attempt to squelch marci’s first amendment rights and does it in a way that is pompous and hypocritical (assuming podon believes in the law). (I have vetted the prior statement with my lawyer who assures me that it is not libelous ;) ).

    — Daisy    Mar 19, 09:37 AM    #

14. Troubled, (#10) — American Law does not apply everywhere. But it does apply in the United States and we are sovereign. The author is an American citizen, resident in the United States, and the book was published primarily in the United States. The idea that a British Court could touch her American assest is repugnant to the Sovereignty of these United States. Now your say “but surely the crux of the matter is whether the writings are true.”. Well no. In American law, libel is largely removed from ordinary tort law, particularly where “public persons” (not just public officials) are the plaintiffs. In NY Times v Sullivan (1964) the Supreme Court of the United States held that a public official to recover damages must prove “actual malice” (as distinct from ““simple malice”), the Court defining ACTUAL MALICE as publication of a FALSE defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” The plaintiff in Sullivan was a county official, as I recall. Ariel Sharon was unsuccessful in his suite against Time Magazine because the court found that while Time had published some false allegations, they had not acted with “actual malice”. So Mr. Troubled, simple truth is not the primary consideration where the plaintiff is a public figure, and one can be a public figure/person without being a public official or a celebrity who seeks public adulation. It is very likely that bin Mahfouz is a “public figure” in the sense of American libel law. Even our “Marci” risks becoming a “limited public figure” (as do I) as far as her voluntary posts on public “blogs” are concerned. For a “limited public figure”, actual malic must be proved in matters pertaining to our public actions, with a lesser burden obtaining for our other, private, actions.

    — Joseph F Foster    Mar 19, 10:08 AM    #

15. At least there is one person who likes marci. Podon is not trying to squelch her first amendment rights in any way. He is merely asking that she actually know something about the subject that she is commenting on and or provide substantive input. Daisy’s penchant for hyperbole will probably get her into trouble at some point down the road.

    — D    Mar 19, 10:13 AM    #

16. I think we should air this case on Jerry Springer’s show, put forth the case and let the audience vote. Now that’s good old American justice, right?

    — BC    Mar 19, 10:15 AM    #

17. D, I’m confused. Please state the hyperbole. (To the rest of you, I beg your indulgence. I know the comments section really isn’t for this purpose but I also really feel that understanding what D finds to be hyperbolic in my statement would be very helpful to me). D, I don’t intend to be combative or obtuse here. Your comment really did throw me.

    — Daisy    Mar 19, 10:37 AM    #

18. It’s nice to see that British Justice is not cowed by another attempted extra-territorial application of US law.
    As for the incident itself, if you cannot or will not prove that what you maliciously publish about another is true, then you should be found guilty of libel.

    Too many persons have suffered damage from published lies that have subsequently been protected by the 1st Amendment.

    — Ian    Mar 19, 11:42 AM    #

19. One problem we have in America as well as in the U.K. is wealthy and powerful people and corporations exploiting the courts to silence critics.

    British libel law sometimes lends itself to this kind of abuse. But America has several suit machines that have been exploiting American law for years.

    The problem isn’t so much America versus Britain as it is the use of judicial power to squelch criticism — and the availability of laws that protect the powerful from their critics.

    — GLM    Mar 19, 12:46 PM    #

20. We have not adequately dealt with the central issue of the work’s factual basis, nor has there been a complete discussion of libel laws, First Amendment provisions, or the relationship between American and British jurisprudence.

    What we do appear to know is that there is an effort to intimidate authors and publishers through legal attack-dog methodology. This is not new in Britian or the United States. Organizations like the ACLU and people like Jesse Jackson and others have been doing this for years in the US and I presume the same is approximately true in Britain.

    The only solution in this case is for the author and publisher to work together to reject this kind of bullying cowardice.

    — R2    Mar 19, 01:07 PM    #

21. Firstly, let me join the call for a clear presentation of the legal issues. Secondly, this sounds similar to the David Irving case of about a decade ago, in which the trail blew up in his face.
    Finally, a hypothetical. Suppose country X were to pass a law that it is libel to write anything negative their president/premier etc. If I write a book in which I document his policy of genocide against a part of his country’s population, would the courts in X, have the right to convict me of libel and then seize my US assets? If so, farewell to newreporting and scholarhip. Help from a legal scholar???

    — shimon    Mar 19, 01:35 PM    #

22. “I am very troubled by the attitude expressed by several contributors that Americans are above the law in other countries, or that American law should apply everywhere.” No one is arguing that, that I am aware of. What some of us are arguing is that British laws should not be allowed to take precedence over American law, especially when the American law in question is friendlier to freedom of expression.

    — Landrum Kelly    Mar 19, 03:03 PM    #

23. Going to my previous statment, the “crux” of the matter is that the book was not published or marketed in Britain. It was published and marketed in the United States. A few copies were purchased and shipped to British addresses by a bookstore in the US (not the publisher), which was the basis of the British court’s declaration of jurisdiction. I am in agreement that if the publisher had either published in Britain, or attempted to market the book in Britain, then British libel law should apply. This was not the case. To take the argument that British Law should apply in this case to it’s logical conclusion, then all publishers must obey the law in any country in which a work might be sold, regardless of whether or not the publisher intended for the book to be sold there. This means that all books criticizing the governments of quite a few nations should be immediately removed from bookshelves as well as quite a few other works deemed inappropriate. I do not see this interpretation as being held in any esteem by a US court since the effect would be to limit the U.S. Constitution’s 1st ammendment to the lowest common international denominator and subject US domestic publications to foreign approval. The legal concepts involved are not overly complicated given these facts. What is difficult to understand is a knee jerk reaction claiming that the protection of US citizens from foreign law while they are acting entirely within the boundaries of US sovereign territory is somehow an over-extension of US law into the sovereign affairs of another nation.

    — JS    Mar 20, 04:09 PM    #

Previous: Graduation Rates Among Teams in NCAA Women's Basketball Tournament Show Racial Gap
Next: John Updike to Deliver 2008 Jefferson Lecture