Libel tourism

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Libel tourism is a term, first coined by Geoffrey Robertson, to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defenses for those accused of making derogatory statements. [1]

Contents

A critic of English defamation law, journalist Geoffrey Wheatcroft attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment and "the caprice of juries and the malice of judges." [2] Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan case. "Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly." [2]

Two other critics of English defamation law, the US lawyers Samuel A. Abady and Harvey Silverglate, have cited the example of Irish – Saudi businessman Khalid bin Mahfouz, who by the time of his death in 2009, had threatened suit more than 40 times in England against those who accused him of funding terrorism. [3] Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor Richard Perle threatened to sue investigative reporter Seymour Hersh in London, because of a series of critical articles Hersh had written about him. [4]

A series of cases involving US citizens being sued in English courts led to new laws in both countries. In the United States, the SPEECH Act unanimously passed the US Congress, which makes foreign defamation judgments unenforceable in US courts if they do not meet US free speech standards. In England and Wales, the Defamation Act 2013 requires plaintiffs to show that England is the proper jurisdiction to hear a case when the defendant does not live in England or Wales.

Case law

Berezovsky v Michaels

In 2000, the House of Lords gave Boris Berezovsky and Nikolai Glushkov permission to sue Forbes for libel in the English courts. [5] In 2003 the case was settled when Forbes offered a partial retraction. [6] [7]

The issues relating to jurisdiction of the English courts in such actions were appealed to the House of Lords, at that time the highest court in England and Wales, making this the key test case on libel tourism. [8] [9] [10]

The Ehrenfeld case

Khalid bin Mahfouz and two members of his family sued Rachel Ehrenfeld, an Israeli-born writer and United States citizen over her 2003 book on terrorist financing, Funding Evil , which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups. [11] The book was not published in Britain,[ citation needed ] although 23 copies of her book had been purchased online through web sites registered in the UK, and excerpts from the book had been published globally on the ABC News web site. Ehrenfeld was advised by English lawyer Mark Stephens to claim that the suit in England violated her First Amendment rights under the U.S. Constitution and chose not to defend the action. Instead, she countersued in the U.S.[ citation needed ] In his 2005 judgment Justice Eady criticised Dr. Ehrenfeld for attempting to cash in on the libel action without being prepared to defend it on its merits and specifically rebutted her suggestion of forum shopping. Eady ruled that Ehrenfeld should pay £10,000 to each claimant plus costs, apologize for false allegations and destroy existing copies of her book. [12]

Eady has been internationally criticized [13] for his perceived bias in the case and his general restrictive approach to free speech. Additionally, the libel laws which were applied came under scrutiny in England, where calls for libel law reform increased after Ehrenfeld's case. Analyzing English libel law, the United Nations Human Rights Committee cautioned that: "practical application of the law of libel has served to discourage 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." The advent of the internet and the international distribution of foreign media also create the danger that a State party's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest." [14]

Laws addressing libel tourism

England and Wales

On January 1st, 2014 the Defamation Act 2013 came into force, requiring plaintiffs who bring actions in the courts of England and Wales alleging libel by defendants who do not live in Europe to demonstrate that the court is the most appropriate place to bring the action. Serious harm to an individual's reputation or serious financial harm to a corporation must also be proven. Good faith belief that a disclosure was in the public interest was made a defense. [15]

United States

Federal

The Free Speech Protection Act of 2008 and 2009 were both bills aimed at addressing libel tourism by barring U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. These protections were passed in the 2010 SPEECH Act which passed unanimously in both the House of Representatives and the Senate before being signed by US President Barack Obama on August 10, 2010. [16] [17]

New York

In late December 2007, the Second Circuit Court of Appeals, based on a decision by the New York State Court of Appeals, ruled that the state's current "long-arm" statutes governing business transactions did not give it jurisdiction to protect author Ehrenfeld. [18] The court noted, however, that if the law were to change, Ehrenfeld could go back to court.

On January 13, 2008, two members of the New York State Legislature, Assemblyman Rory I. Lancman (D-Queens) and Senator Dean Skelos (R-LI), introduced a "Libel Tourism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B) [19] to amend the New York civil procedures in response to the Ehrenfeld case. The bill passed the New York State legislature on a rare unanimous vote. [20] and on April 29, 2008, Gov. Paterson signed the bill into law. [21] The Libel Tourism Protection Act enables New York courts to assert jurisdiction over anyone who obtains a foreign libel judgment against a New York publisher or writer, and to limit enforcement to those judgments that satisfy "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions." [22]

California

In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act) that took effect January 1, 2010. The Act provides that California courts shall not recognize a foreign-country judgment if "the judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions" (C.C.P. sec. 1716(c)(9)) and other protections. [23] The law received significant bi-partisan support. [24]

Illinois

In August 2008, Illinois enacted a libel tourism law that is similar to the statute passed in New York. [25] [26]

Florida

In May 2009, Florida also enacted a libel tourism law similar to the law passed in New York. [27]

See also

Related Research Articles

Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal definition of defamation and related acts as well as the ways they are dealt with can vary greatly between countries and jurisdictions.

Strategic lawsuits against public participation, or strategic litigation against public participation, are lawsuits intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

<span class="mw-page-title-main">Paul Klebnikov</span> American journalist and historian of Russia

Paul Klebnikov was an American journalist and historian of Russia. He worked for Forbes magazine for more than 10 years and at the time of his death was chief editor of the Russian edition of Forbes. His murder in Moscow in 2004 was seen as a blow against investigative journalism in Russia. Three Chechens accused of taking part in the murder were acquitted. Though the murder appeared to be the work of assassins for hire, as of 2022, the alleged organizers of the murder had yet to be identified. According to another version, widely reported in Russian media, Klebnikov was killed by a close associate to the high-ranking member of Lazansky organized criminal gang linked both to Russian FSS service and Boris Berezovsky, a Russian oligarch.

Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.

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<i>Alms for Jihad</i>

Alms for Jihad: Charity and Terrorism in the Islamic World is a 2006 book co-written by American authors J. Millard Burr, a former USAID relief coordinator in Sudan, and historian Robert O. Collins which discusses the role of Islamic charities in financing terrorism.

Khalid bin Mahfouz was a Saudi Arabian billionaire, banker, businessman, investor and former chairman of the National Commercial Bank (NCB). Khalid is the son of Salem Bin Mahfouz, a Saudi entrepreneur who rose from being a small-time moneychanger to becoming the founder of the NCB, the first private Saudi bank.

<i>Funding Evil</i> 2003 book by Rachel Ehrenfeld

Funding Evil: How Terrorism is Financed and How to Stop It is a book written by counterterrorism researcher Dr. Rachel Ehrenfeld, director of the American Center for Democracy and the Economic Warfare Institute. It was published by Bonus Books of Los Angeles, California in August 2003.

Sir David Eady, KC is a retired High Court judge in England and Wales. As a judge, he is known for having presided over many high-profile libel and privacy cases.

Modern libel and slander laws in many countries are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as the Statute of Gloucester in the reign of Edward I (1272–1307). The law of libel emerged during the reign of James I (1603–1625) under Attorney General Edward Coke who started a series of libel prosecutions. Scholars frequently attribute strict English defamation law to James I's outlawing of duelling. From that time, both the criminal and civil remedies have been found in full operation.

The origins of the United States' defamation laws pre-date the American Revolution; one influential case in 1734 involved John Peter Zenger and established precedent that "The Truth" is an absolute defense against charges of libel. Though the First Amendment of the U.S. Constitution was designed to protect freedom of the press, for most of the history of the United States, the U.S. Supreme Court failed to use it to rule on libel cases. This left libel laws, based upon the traditional "Common Law" of defamation inherited from the English legal system, mixed across the states. The 1964 case New York Times Co. v. Sullivan, however, radically changed the nature of libel law in the United States by establishing that public officials could win a suit for libel only when they could prove the media outlet in question knew either that the information was wholly and patently false or that it was published "with reckless disregard of whether it was false or not". Later Supreme Court cases barred strict liability for libel and forbade libel claims for statements that are so ridiculous as to be obviously facetious. Recent cases have added precedent on defamation law and the Internet.

<span class="mw-page-title-main">Canadian defamation law</span> Commonwealth jurisdictions

Canadian defamation law refers to defamation law as it stands in both common law and civil law jurisdictions in Canada. As with most Commonwealth jurisdictions, Canada follows English law on defamation issues.

<span class="mw-page-title-main">SPEECH Act</span>

The Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act is a 2010 federal statutory law in the United States that makes foreign libel judgments unenforceable in U.S. courts, unless either the foreign legislation applied offers at least as much protection as the U.S. First Amendment, or the defendant would have been found liable even if the case had been heard under U.S. law.

<i>Richardson v Schwarzenegger</i>

Richardson v Schwarzenegger was an internet defamation case heard in the English High Court of Justice, on 29 October 2004. Claimant Anna Richardson, a British television presenter, claimed to have been libelled in the 2 October 2003 issue of the US publication Los Angeles Times, which was available in print and online in the UK, as a result of statements made by the gubernatorial campaign manager of Arnold Schwarzenegger, an Austrian-American actor and politician.

<i>Berezovsky v Michaels</i>

Berezovsky v Michaels is an English libel decision in which the House of Lords allowed Boris Berezovsky and Nikolai Glushkov to sue Forbes for libel in UK courts, despite the allegedly libelous material relating to their activities in Russia.

<i>The Libel Tourist</i> 2007 American film

The Libel Tourist is a short-form documentary film about how the advantageous litigative environments that exist in certain jurisdictions are used by powerful individuals to suppress unfavorable information about them by bringing forth unjustified libel suits against writers and publishers. The seeking out of such favorable environments, most notably the courts of England and Wales, has been dubbed libel tourism.

<i>Obsidian Finance Group, LLC v. Cox</i> Case concerning online defamation

Obsidian Finance Group, LLC v. Cox is a 2011 case from the United States District Court for the District of Oregon concerning online defamation. Plaintiffs Obsidian Finance Group and its co-founder Kevin Padrick sued Crystal Cox for maintaining several blogs that accused Obsidian and Padrick of corrupt and fraudulent conduct. The court dismissed most of Cox's blog posts as opinion, but found one single post to be more factual in its assertions and therefore defamatory. For that post, the court awarded the plaintiffs $2.5 million in damages. This case is notable for the court's ruling that Cox, as an internet blogger, was not a journalist and was thus not protected by Oregon's media shield laws, although the court later clarified that its ruling did not categorically exclude blogs from being considered media and indicated that its decision was based in part upon Cox offering to remove negative posts for a $2,500 fee. In January 2014 the Ninth Circuit Court affirmed in part and reversed in part the district court's judgment awarding compensatory damages to the bankruptcy trustee. It also ordered a new trial on the blog post at issue.

British Chiropractic Association (BCA) v Singh was an influential libel action in England and Wales, widely credited as a catalytic event in the libel reform campaign which saw all parties at the 2010 general election making manifesto commitments to libel reform, and passage of the Defamation Act 2013 by the British Parliament in April 2013.

<span class="mw-page-title-main">Defamation Act 2013</span> United Kingdom law reforming defamation law

The Defamation Act 2013 is an Act of the Parliament of the United Kingdom, which reformed English defamation law on issues of the right to freedom of expression and the protection of reputation. It also comprised a response to perceptions that the law as it stood was giving rise to libel tourism and other inappropriate claims.

References

  1. ↑ Libel Tourism Chills Investigative Journalism Archived 2010-11-24 at the Wayback Machine
  2. 1 2 Wheatcroft, Geoffrey (28 February 2008). "The worst case scenario". The Guardian . p. 32. Retrieved 17 April 2008.
  3. ↑ Samuel A. Abady; Harvey Silverglate (7 November 2006). "'Libel tourism' and the War on Terror". Boston Globe . Retrieved 17 April 2008.
  4. ↑ Berlins, Marcel. Index on Censorship, July 2004, Vol. 33 Issue 3, p18-20
  5. ↑ "Judgments - Berezovsky v. Michaels and Others Glouchkov v. Michaels and Others (Consolidated Appeals)". publications.parliament.uk. 11 May 2000. Retrieved 19 September 2011.
  6. ↑ "Shuddup". The Economist . 13 March 2003.
  7. ↑ The following statement appended to the article on the Forbes website summarises: 'On 6 March 2003 the resolution of the case was announced in the High Court in London. FORBES stated in open court that (1) it was not the magazine's intention to state that Berezovsky was responsible for the murder of Listiev, only that he had been included in an inconclusive police investigation of the crime; (2) there is no evidence that Berezovsky was responsible for this or any other murder; (3) in light of the English court's ruling, it was wrong to characterize Berezovsky as a mafia boss. "Berezovsky Vs. Forbes" Forbes 31 March 2003
  8. ↑ Delta, George B.; Matsuura, Jeffrey H. (2008). "Jurisdictional issues in cyberspace". Law of the Internet. Vol. 1 (3rd ed.). Aspen Publishers. pp. 3–92. ISBN   978-0-7355-7559-2. Berezovsky is the leading case in what has come to be known as “libel tourism
  9. ↑ Crook, Tim (2010). "Defamation law". Comparative media law and ethics. Taylor & Francis. pp. 240–241. ISBN   978-0-415-55161-8.
  10. ↑ Taylor, Daniel C. (November 2010). "Libel Tourism: Protecting Authors and Preserving Comity" (PDF). Georgetown Law Journal . 99: 194. ISSN   0016-8092. Archived from the original (PDF) on 2 January 2014. Retrieved 23 September 2011.
  11. ↑ "Britain, a destination for "libel tourism"". Archived from the original on 23 January 2008. Retrieved 6 March 2008.
  12. ↑ Full text of the High Court judgment, 2005-05-03
  13. ↑ "How our senior libel judge stamps on free speech – all over the world | George Monbiot". TheGuardian.com . 19 October 2009.
  14. ↑ "University of Minnesota Human Rights Library".
  15. ↑ Sarah Lyall (25 April 2013). "Libel Cases Now Harder to Bring in England". The New York Times. Retrieved 26 April 2013.
  16. ↑ Meisel, Aylana (3 August 2010). "Congress Unites to Pass Bill Protecting American Authors and Publishers". The Cutting Edge . Retrieved 11 August 2010.
  17. ↑ Greenslade, Roy (11 August 2010). "Obama seals off US journalists and authors from Britain's libel laws". The Guardian . Retrieved 11 August 2010.
  18. ↑ N.Y. Court of Appeals ruling, Dec. 20, 2007
  19. ↑ Alyssa A. Lappen, "America's First Amendment lifeline", Human Events, Jan. 25, 2008
  20. ↑ Matthew Pollack (1 April 2008). "New York strikes back against libel tourism". Reporters Committee for Freedom of the Press.
  21. ↑ "Gov. Paterson signs legislation". 1 May 2008. Archived from the original on 29 January 2010.
  22. ↑ Samuel A. Abady & Harvey Silverglate (25 February 2008). "Rachel's Law: NY's 'Libel-Tourism' Fix". New York Post.
  23. ↑ Cal. Code of Civil Procedure sections 1716 and 1717, as amended by Chapter 579, Statutes of 2009 (SB 320 - Corbett). http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0301-0350/sb_320_bill_20091011_chaptered.pdf
  24. ↑ CA Leg Counsel bill/vote records
  25. ↑ 735 Ill. Comp. Stat 5/12-621 (b)(7) (2009)
  26. ↑ 735 Ill. Comp. Stat. 5/2-209 (b-5) (2009)
  27. ↑ Florida Statutes 55.605 (2)(h); 55.6055

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