For U.S. authors and publishers, “libel tourism” is no vacation, and a U.S. House of Representatives committee met on Thursday to discuss possible remedies.
“Libel tourism” refers to bringing libel suits against U.S.-based defendants in foreign countries that have weaker protection for speech than does the United States. The United Kingdom, for example, has nothing analogous to the actual-malice requirement in the United States that protects speech involving public officials or public figures.
Rep. Steve Cohen (D-Tenn.), Rep. Howard Coble (R-N.C.), and Rep. Trent Franks (R-Ariz.) of the House Judiciary Subcommittee on Commercial and Administrative Law met on Thursday to explore ways American authors, journalists, and publishers could protect themselves against such foreign libel suits. They heard from a panel of three legal experts and a U.S. author who was sued in the United Kingdom after 23 of her books were purchased online there.
The U.S. author, Rachel Ehrenfeld of the American Center for Democracy, wrote the book Funding Evil about the financing of terrorist organizations, including al-Qaida and Hamas. One Saudi billionaire named in the book brought suit in the United Kingdom and won a $225,000 verdict.
Nearly 10 similar suits have been brought in the United Kingdom by foreign businessmen who were implicated by journalists and authors in terrorist funding networks, according to the Media Law Resource Center in New York. Many publishers have “had to issue abject apologies and pay damages because they couldn’t prove it true,” MLRC senior staff attorney Dave Heller said.
People performing what many would see as a critical task of investigating terrorist networks have to think about such foreign suits, and their speech can be chilled through self-censorship, warned libel lawyer Bruce Brown, a partner at Baker and Hostetler. “You go into it today assuming that you have to keep an eye on U.S. law as well as British,” Brown said.
Another legal expert, Laura Handman, a partner at Davis Wright Tremaine, supported passing a federal law to fix the patchwork of state laws governing the enforceability of foreign judgments. She says that such a law would ensure “as a national matter, that First Amendment rights trump.”
In the discussion, Rep. Cohen suggested drafting measures under federal law to allow U.S. defendants to recover legal fees from foreign plaintiffs. “Maybe they’d be tiny, baby teeth, but they’d be teeth,” he said.