Change in British Law a Victory for Free Speech Worldwide
Britain is about to change its libel laws. This development rates as world news for a few reasons: Britain will no longer be the favored site for "libel tourism," which will have an impact on publications covering topical issues such as terrorism and those who fund it. Secondly, it demonstrates that when the United States changes its laws to right an injustice, other countries, even those with venerable legal traditions like Britain, have to follow suit.
Under the current law, one could bring suit against someone who published a book in the United States or an English Internet site, however obscure, for libel. The plaintiff did not have to demonstrate that he had sustained any actual loss. He just had to say that he was likely to do so. British libel laws placed the burden of proof on the defendant rather than on the plaintiff.
The British decision can be viewed as a victory for Doctor Rachel Ehrenfeld, an Israeli-American counterterrorism expert. She published a book entitled Funding Evil: How Terrorism Is Financed and How to Stop It, in which she accused Khalid bin Mahfouz, a banker to the Saudi royal family and one of the world's plutocrats. of setting up a banking system to assist Osama bin Laden and using his charitable foundations as a front for terrorist organizations.
Bin Mahfouz took Ehrenfeld to court, not in New York where the book was published, but in England. It sufficed that 23 copies of the book had been ordered on the Internet in Britain to allow the British courts to assume jurisdiction. The British libel laws gave wealthy plaintiffs a tremendous advantage because the huge court costs – insignificant for someone like bin Mafhouz, could not be borne by average defendants, even if they were eventually exonerated by the court. Publishers usually preferred to settle, but even worse, adopted a policy of self-censorship to avoid the slightest exposure to lawsuits.
Ehrenfeld took the Saudi foreign financier to court in New York, seeking a judgment that the English libel decision was a violation of the First Amendment to the U.S. Constitution and therefore void. The federal court dismissed her case for lack of jurisdiction and Ehrenfeld went to the Court of Appeals, which upheld the lower court, but suggested a remedy. It declared that the issue of jurisdiction could be defined by the legislature.
The New York State Legislature acted by limiting the enforcement of foreign label libel judgments to those which satisfied "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions." Other states followed suit, and last year Congress made it a national law by passing the Speech Act. In the words of Senator Patrick Leahy , "this bill is a needed first step to ensure that weak free-speech protections and abusive legal practices in foreign countries do not prevent Americans from fully exercising their constitutional right to speak and debate freely.”
Britain has now been forced to follow suit. A person submitting a libel suit will have to prove, according to Kenneth Clark, the Secretary of Justice, that England and Wales are "clearly the most appropriate place in which to bring an action."
According to Deputy Prime Minister Nick Clegg, "We are addressing libel tourism by tightening the rules, so that it is much harder to bring overseas claims to our courts when there is little connection to the UK. If such a link can't be demonstrated our judges will simply turn the case away."
English may eventually be supplanted by Mandarin Chinese, but as of now it is the world's lingua franca and therefore this is far more than a legal nicety. It is a victory for free speech worldwide.