Legal Update 18.11.05

A Saudi
businessman has obtained an English libel ruling against a French
author on the American edition of a book where UK rights were
specifically excluded.

This worrying decision for publishers was
made against Jean- Charles Brisard, author of Forbidden Truth: US
Taliban Secret Oil Diplomacy and the Failed Hunt for Bin Laden.

The book was originally published in France by Editions Denoël; Nation Books bought exclusive US rights, which excluded the UK.

Unhappily for Brisard, 456 copies of his books were shipped into the UK by US wholesaler Ingrams and Amazon (.com and .co.uk).

The
claimant, Sheikh Khalid Bin Mahfouz, is a frequent visitor to our libel
courts and had even sued Brisard once before, in 2004, in respect of
material posted on Brisard’s website abroad, but downloaded in this
country. The Sheikh obtained damages of £10,000 and costs of £65,000.

The
issue in the most recent Brisard case was whether he was liable for
sales into England of the translated American edition, even though the
agreement between the French and US publishers clearly excluded the UK.

Brisard
was not a party to that contract. He had assigned his rights to Denoël
without a written exclusion of the UK in his contract. Not surprisingly
he thought his book was being published in the USA, not in the UK.

The
judge pointed out that, in the law of libel, publication occurs simply
when defamatory words are read and understood by someone other than the
writer and the claimant to whom the words refer.

This, he noted,
was different from publication in the sense used by book publishers –
namely, preparing and putting a text into circulation.

By
permitting Denoël to put the translation into circulation anywhere in
the world, Brisard had, the judge concluded, authorised publication in
this libel sense in England. The agreement between Denoël and Nation
Books was, he said, simply concerned with intellectual property rights.

This
is a worrying decision for publishers. Authors, it seems, should now
insist upon being a party to any licensing agreement with US
publishers, forbidding the book to be published in the UK and requiring
that this be drawn to the attention of US distributors.

Whether
these pigs will fly and exclude the jurisdiction of the English courts
remain to be seen. It is unrealistic to expect a Frenchman to put terms
into a contract with an American to avoid liability in England.

The
Brisard case indicates that the English courts are prepared to assume
wide jurisdiction in cases with only marginal links with the UK. Online
retailing means that anything can be published in the UK. The harsh
English libel laws and the apparent encouragement of libel tourism is
likely to place the English publishing industry at a distinct
disadvantage.

Likewise, if our courts allow our strict libel laws
to be imposed on foreign publications, this country may cease to be at
the centre of publishing in favour of more level playing fields in
mainland Europe.

David Hooper is a partner with City law firm Reynolds Porter Chamberlain, which acted for Monsieur Brisard

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