Monday, September 01, 2008

"Libel Tourism": Vigorous bipartisan support needed in Congress to counter this practice


An op-ed by Clifford May in The Washington Times, on Sunday Aug. 31, on p B3, discusses the progress of the Free Speech Protection Act of 2008, introduced into both houses in the 110th Congress with bipartisan support. This bill specifically addresses the problem of “libel tourism.”

What happens is that a book or article is published in the United States and is vetted (by author and publisher due diligence) to fall well within the parameter of American tort law with regard to libel, where truth is an absolute defense. Then, a party named in the book, often associated with radical Islam, purchases a few copies in Britain by mail, and then files a libel lawsuit under British law. Libel suits are much harder to defend in the United Kingdom. If the author and publisher do not appear (at their own expense) a default judgment is ordered. If the parties do not pay, they cannot enter Britain and some other Commonwealth countries that honor British judgments. I’m not sure about Canada, but both Canada and Britain are important in making films about terrorism.

The bill would allow the American defendant to counter-sue in an American court if the suit would be frivolous or unfounded in the US and is advanced to suppress American First Amendment rights.

Britain is notorious in attracting “libel tourism” cases. Kitty Kelly noted that ten years ago in reference to Princess Diana. Furthermore, British law tends to encourage some cases domestically that would be silly in the United States. This may extend to other areas, like copyright, where author Dan Brown won a case defending “The Da Vinci Code” and may be helping changing the practice of intellectual property law in Britain to be closer to American ideas.

The bills are HR 5814 (introduced by Peter King (R-NY) and Anthony Weiner (D-NY). The link is here. The same bill was introduced in the Senate by Arlen Specter (R-PA) as S 2977. Thought supposedly bipartisan, the support is much stronger on the Republican side. If properly argued, this could be helpful to McCain and Palin this fall, but the issues may not be clear to many American voters outside the writing and “creative” community (who have often tended to be Democratic or liberal). Potentially, they are important to national security. Clifford May points out that Saudi oil interests might try to lobby against it. Another somewhat, if distantly, related issue is the practice of data brokers with releasing and selling ordinarily private or unlisted (and legally irrelevant) information about ordinary Americans. I have discussed this with my own representative (a Democrat) and may say more later about it.

The Washington Times "Voices" op-ed by Clifford May is called “Free Speech under Fire” and the link is here. The op-ed notes the reluctance of publishers to deal with Roger Kimball's "Andy McCarthy's Willful Blindness: A Memoir of the Jihad" and the publishers' fears of "offending" and "Saudis living in England".

The visitor can check the profile for my international issues blog and see pieces on this problem Oct. 11, 2007 and Aug. 27, 2008, with a more distant related “free speech” article Aug. 6, 2008. I also discuss the book "Funding Evil" by Dr. Rachel Ehrenfeld on the books blog (Oct. 14, 2007) and the concerns expressed by the publishing industry about this problem, documented, for example, in an article "Libel Tourism: Where Terrorism and Censorship Meet [on Khalid bin Mahfouz, Robert O. Collins, "Alms for Jihad," Cambridge University Press]", for the original article by Cinnamon Stillwell in the San Francisco Chronicle, Aug. 29, 2007, link here (also stored at Campus Watch Research here).

It's curious that the Washington Times and Washington Post had articles about tourism yesterday (see entry Aug 31 here), but the Post's were about the more mundane "vacationing" or "running around" kind.

Update: Sept 30, 2008

The New York Times today has an important editorial, "Bringing an End to ‘Libel Tourism’", link here. The Times urges the Senate to pass a companion bill to what the House passed this week. The editorial points out that major publishers are afraid of books and articles on the financing of terrorism, for fear of being dragged into British courts for frivolous litigation, even when the facts published are true. Truth is a less absolute defense to libel in Britain (as Kitty Kelly has noted). It also notes that New York State has a law, but that writers in other states need protection by federal law.

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