Libel tourism is a term, first coined by
Geoffrey Robertson, to describe
forum shopping
Forum shopping is a Colloquialism, colloquial term for the practice of litigants taking actions to have their legal case heard in the court they believe is most likely to provide a favorable judgment. Some jurisdiction (area), jurisdictions hav ...
for
libel
Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
suits. It particularly refers to the practice of pursuing a case in
England and Wales
England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
, in preference to other jurisdictions, such as the United States, which provide more extensive defenses for those accused of making derogatory statements.
A critic of
English defamation law
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 th ...
, 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."
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."
[
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. Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor ]Richard Perle
Richard Norman Perle (born September 16, 1941) is an American political advisor who served as the Assistant Secretary of Defense for Global Strategic Affairs under President Ronald Reagan. He began his political career as a senior staff member to ...
threatened to sue investigative reporter Seymour Hersh
Seymour Myron Hersh (born April 8, 1937) is an American investigative journalist and political writer. He gained recognition in 1969 for exposing the My Lai massacre and its cover-up during the Vietnam War, for which he received the 1970 Pulitzer ...
in London, because of a series of critical articles Hersh had written about him.[ Berlins, Marcel. Index on Censorship, July 2004, Vol. 33 Issue 3, p18-20]
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
In the philosophy of language and linguistics, a speech act is something expressed by an individual that not only presents information but performs an action as well. For example, the phrase "I would like the mashed potatoes; could you please pas ...
unanimously passed the US Congress, which makes foreign defamation judgments unenforceable
An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid ...
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
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the lower house, the House of Commons of the United Kingdom, House of Commons, it meets in the Palace of Westminster in London, England. One of the oldest ext ...
gave Boris Berezovsky and Nikolai Glushkov permission to sue ''Forbes
''Forbes'' () is an American business magazine founded by B. C. Forbes in 1917. It has been owned by the Hong Kong–based investment group Integrated Whale Media Investments since 2014. Its chairman and editor-in-chief is Steve Forbes. The co ...
'' for libel in the English courts. In 2003, the case was settled when ''Forbes'' offered a partial retraction.
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.
The Ehrenfeld case
Khalid bin Mahfouz and two members of his family sued Rachel Ehrenfeld
Rachel Ehrenfeld is an American political commentator on terrorism and political corruption, corruption-related topics, and serves as director of a conservative think tank, the American Center for Democracy, and its Economic Warfare Institute.
Ehr ...
, an Israeli-born writer and United States citizen, over her 2003 book on terrorist financing
Terrorism financing is the provision of funds or providing financial support to individual terrorists or non-state actors.
Most countries have implemented measures to counter terrorism financing (CTF) often as part of their money laundering law ...
, ''Funding Evil
''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 Boo ...
'', which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups. The book was not published in Britain, although 23 copies of her book had been purchased online 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. 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.[Full text of the High Court judgment](_blank)
3 May 2005
Eady has been internationally criticized 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."
Laws addressing libel tourism
England and Wales
On 1 January 2014, the Defamation Act 2013 came into force, requiring plaintiffs who bring actions in the courts of England and Wales
England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...
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.
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
In the philosophy of language and linguistics, a speech act is something expressed by an individual that not only presents information but performs an action as well. For example, the phrase "I would like the mashed potatoes; could you please pas ...
which passed unanimously in both the House of Representatives
House of Representatives is the name of legislative bodies in many countries and sub-national entities. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often ...
and the Senate
A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
before being signed by US President Barack Obama
Barack Hussein Obama II (born August 4, 1961) is an American politician who was the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, he was the first African American president in American history. O ...
on 10 August 2010.
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. The court noted, however, that if the law were to change, Ehrenfeld could go back to court.
On 13 January 2008, two members of the New York State Legislature
The New York State Legislature consists of the Bicameralism, two houses that act as the State legislature (United States), state legislature of the U.S. state of New York (state), New York: the New York State Senate and the New York State Assem ...
, Assemblyman Rory I. Lancman (D-Queens) and Senator
A senate is a deliberative assembly, often the upper house or Legislative chamber, chamber of a bicameral legislature. The name comes from the Ancient Rome, ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior ...
Dean Skelos (R-LI), introduced a "Libel Terrorism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B) 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, and on 29 April 2008, Gov. Paterson signed the bill into law. The Libel Terrorism 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."
California
In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act) that took effect 1 January 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. The law received significant bi-partisan support.
Illinois
In August 2008, Illinois enacted a libel tourism law that is similar to the statute passed in New York.
Florida
In May 2009, Florida also enacted a libel tourism law similar to the law passed in New York.[Florida Statutes 55.605 (2)(h); 55.6055]
See also
* Defamation
Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
* Forum shopping
Forum shopping is a Colloquialism, colloquial term for the practice of litigants taking actions to have their legal case heard in the court they believe is most likely to provide a favorable judgment. Some jurisdiction (area), jurisdictions hav ...
* Khalid bin Mahfouz
* Investigative journalism
Investigative journalism is a form of journalism in which reporters deeply investigate a single topic of interest, such as serious crimes, racial injustice, political corruption, or corporate wrongdoing. An investigative journalist may spend m ...
* Simon Singh
References
Further reading
* Barbour, Emily C. The SPEECH Act: The Federal Response to "Libel Tourism". Washington, D.C.: Congressional Research Service, Library of Congress, 2010.
* Bell, Avi. Libel Tourism: International Forum Shopping for Defamation Claims. Jerusalem: Jerusalem Center for Public Affairs, 2008.
* Brower, Amy J. Libel Tourism and Foreign Libel Lawsuits. New York: Nova Science Publishers, 2011.
* Henning, Anna C., and Vivian S. Chu. "Libel Tourism" Background and Legal Issues. Washington, D.C.: Congressional Research Service, Library of Congress, 2009.
* Melkonian, Harry. Defamation, Libel Tourism and the SPEECH Act of 2010: The First Amendment Colliding with the Common Law. Amherst, NY: Cambria Press, 2011.
* Packard, Ashley. Digital Media Law. Chichester: Wiley-Blackwell, 2013.
External links
THE LIBEL TOURIST
A short documentary detailing one such case involving bin Mahfouz
{{DEFAULTSORT:Libel Tourism
Conflict of laws
Defamation
English defamation law
Pejorative terms