The SPEECH Act. Chilling Libel Tourism
A prominent author writes a book on the controversial subject of funding Islamist terrorism. In the course of the book, the name of a prominent Saudi banking family claimed to be involved in the funding of terrorism is exposed.
In an effort to silence any discussion on the subject, members of the Saudi family commence a defamation lawsuit in London, the “libel tourism capital of the world”. The English High Court, presided by Justice Eady, the same judge who has a rather ignominious track record for finding in favor of defamation suit plaintiffs, then determines that the sale of a mere 23 copies of the book through UK online retailers and the availability of the first chapter on an ABC website was sufficient to grant jurisdiction to the English court.
Having secured jurisdiction in England where the burden is upon the defendant to prove that defamatory allegations are true (as opposed to the US where the burden is upon the plaintiff to prove falsity), members of the Saudi family are awarded money damages and an injunction against further publication of the book.
The above recounts the true story of one of the numerous lawsuits commenced by the Bin Mahfouz family in the wake of the publication in 2003 of Funding Evil: How Terrorism is Financed – and How to Stop It authored by Rachel Ehrenfeld an internationally recognized counterterrorism expert.
This was however only the beginning for Ehrenfeld in a seven-year battle that in August culminated in the passing of landmark legislation with the enactment of the Securing and Protecting our Enduring and Established Constitutional Heritage Act (SPEECH Act).
Passed with the bipartisan support of both the House and Senate, the SPEECH Act provides thata foreign defamation judgment is unenforceable against a US person unless the defamation law of the foreign jurisdiction provides at least the same protection of free speech as provided in the US or applying the facts of the case, the person against whom judgment is sought would be found liable for defamation in a US court. Designed to put an end to what has become known as “libel tourism”, the practice of picking a plaintiff-friendly jurisdiction to procure a defamation judgment in order to chill free speech, a person that attempts to enforce a foreign defamation judgment is further deterred by being required to pay the legal fees of the person against whom judgment is sought if the judgment is found unenforceable.
The threats to free speech posed by libel tourism are very real. As international law scholar, Professor Avi Bell, observed writers are forced to “weigh the risk of lengthy and uncertain legal proceedings in England or other pro-plaintiff jurisdictions every time they publish a controversial item. The net effect is almost certainly to deter some valuable and controversial speech.”
The SPEECH Act traces its origins to The Libel Tourism Protection Act, a piece of New York legislation passed in 2008 to protect New York residents against libel tourism. Also known as “Rachel’s Law”, Ehrenfeld was singularly responsible for lobbying the New York legislature to enact law that would prevent Bin Mahfouz and others like him from being able to enforce foreign defamation judgments against New York residents. Encouraged by the enthusiasm with which The Libel Tourism Protection Act was met, Ehrenfeld went on to lobby Congress to cast the net of protection against libel tourism throughout the United States.
The US has a long and rich tradition of upholding the First Amendment and under New York Times v. Sullivan a “public figure” plaintiff that brings a defamation lawsuit must demonstrate that defamatory statements were made with “actual malice”, a standard that only in the rarest of circumstances can be met. With the passing of the SPEECH Act, it virtually assures that except in the most extreme circumstances, the practice of libel tourism is likely to come to an end.
Journalists, bloggers, authors and publishers in the US can breathe a sigh of relief that at least in one country in the world when we say we believe in free speech, we mean it.
Gary Emmanuel is a Contributing Writer for The Propagandist.