When Rachel Ehrenfeld wrote “Funding Evil: How Terrorism Is Financed and How to Stop It,” she assumed she would be protected by the First Amendment. She was, in the United States. But a wealthy Saudi businessman she accused in the book of being a funder of terrorism, Khalid bin Mahfouz, sued in Britain, where the libel laws are heavily weighted against journalists, and won a sizable amount of money.
The lawsuit is a case of what legal experts are calling “libel tourism.” Ehrenfeld is an American, and “Funding Evil” was never published in Britain. But at least 23 copies of the book were sold online, opening the door for the lawsuit. When Ehrenfeld decided not to defend the suit in Britain, bin Mahfouz won a default judgment and is now free to sue to collect in the United States.
British law is un-American
The upshot is a First Amendment loophole. In the Internet age, almost every American book can be bought in Britain. That means American authors are subject to being sued under British libel law, which in some cases puts the initial burden on the defendant to prove the truth of what she has written. British libel law is so tilted against writers that the U.N. Human Rights Committee criticized it last month for discouraging discussion of important matters of public interest.
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Bin Mahfouz, who has denied financing terrorism, said Ehrenfeld's book contained inaccuracies and demanded a retraction. He also demanded a significant contribution to a charity of his choice – a charity Ehrenfeld said she feared would be one with ties to terrorism. Ehrenfeld, who describes herself as being “in the business of stopping people who fund terrorism,” refused to back down. “I said,” she later recalled, “he's found the wrong victim.”
Ehrenfeld rallied prominent champions of free speech to her cause, including the American Library Association, the Association of American Publishers and the PEN American Center. She also set to work trying to change American law. The New York state Legislature passed a bill that some are calling “Rachel's law,” which blocks enforcement of libel judgments from countries that provide less free-speech protection than the United States. Gov. David Paterson signed it on May 1.
Congress should act
A similar, bipartisan bill has been introduced in Congress. The federal bill would extend protection to the entire country. It would also allow American authors and publishers to countersue, and if a jury found that the foreign suit was an attempt to suppress protected speech, it could award treble damages. There is little opposition to it – and Congress should pass it before it adjourns later this month.
“Libel tourism” is a threat to America's robust free-speech traditions, which protect authors here. If foreign libel judgments can be enforced in American courts, there will be a “race to the bottom”; writers will only have as much protection as the least pro-free-speech nations allow.
Most writers, particularly those who concern themselves with arcane subjects like terrorism financing, are not wealthy. The prospect of a deep-pocketed plaintiff coming after them in court can be frightening. Even if the lawsuit fails, the cost and effort involved in defending against it can be considerable.
The result is what lawyers call a “chilling effect” – authors and publishers may avoid taking on some subjects, or challenging powerful interests. That has already been happening in Britain. Craig Unger's “House of Bush, House of Saud: The Secret Relationship Between the World's Two Most Powerful Dynasties” was a best seller in the United States. But its British publisher canceled plans to publish the book, reportedly out of fear of being sued. (A smaller publisher later released it.)
Britain should rethink its libel laws, as the U.N. committee urged, for the sake of its citizens. But until it does, the United States should ensure that other countries' pro-plaintiff libel laws do not infect this country and diminish our proud tradition of freedom of expression.