'Repugnant' Britain lures libel tourists

WHEN FILM-MAKER
Roman Polanski won £50,000 damages from Vanity Fair in a libel case in
Britain in July, it was a stark reminder – if any were needed – that
our libel laws can have a chilling effect on American writers and
publishers as much as on British ones. The Polish director, who lives
in France (and who has been a fugitive from the USA since 1977 after he
allegedly committed statutory rape), was able to sue a US publication
in the High Court in London, and win. It showed that “libel tourism”,
where well-known figures choose to sue under England’s stringent and
pro-plaintiff libel laws, is alive and well.

Yet as Vanity Fair
pays Polanski 50 grand, another American writer is refusing to play
ball with the English libel courts. Indeed, she has launched a very
public fightback against a ruling recently made against her in the High
Court, and is pitting America’s First Amendment – which states that
there shall be no law “abridging the freedom of speech, or of the
press” – against what she refers to as England’s “repugnant” libel laws.

It’s
a transatlantic spat, and journalists in Britain who value free speech
and a free press should seriously consider siding with the Americans
against the Brits on this one.

Rachel Ehrenfeld is an
Israeli-born American citizen. She is a journalist, author and academic
based in New York and has been researching and commenting on terrorism
for 20 years. She specialises in tracing the money behind terrorist
organisations and has rattled more than a few cages with her exposés of
where the cold hard cash for terrorist acts comes from. After the
events of 11 September 2001 (which she witnessed from her flat in
midtown New York), Ehrenfeld wrote a book titled Funding Evil: How
Terrorism Is Financed, and How to Stop It, in which she made
allegations about a Saudi billionaire and his sons.

After
publication, Ehrenfeld started to receive demands for retractions from
British lawyers representing the billionaire. She refused, so in 2004
she was sued in London. On 3 May this year, Mr Justice Eady (the judge
who ruled in the Polanski case) ordered that Ehrenfeld and Bonus Books
should pay both the father and his sons £10,000 each – a total of
£30,000 – as well as £30,000 in costs, because statements made in the
book were “defamatory of the claimants, and false”.

Ehrenfeld did
not turn up to the High Court because she says it is “very difficult
and expensive to defend oneself” in the English libel courts – though
she points out that everything in her book is carefully referenced.
“Half of the book is references,” she says. And she refuses to
recognise the ruling made against her. Even now she will not discuss
the details of the case, because “I do not recognise the court’s
jurisdiction over me”.

She says: “I am an American citizen and he
is a Saudi, and my book was published in America. Yet he sues me in
London. If he has any qualms with me, he should come and sue me in the
United States.”

Ehrenfeld points out that her book was not
published in Britain, and was not even available to buy in British
bookshops. Yet she was sued in London on the basis that 26 copies of
her book were bought by individuals based in Britain via internet
booksellers. The first chapter of the book was also published on the
web, and was apparently accessed by numerous Britons. “It’s
ridiculous,” says Ehrenfeld. “This is an American book by an American citizen. I see no reason for my being sued in England. Except, of course, that English libel laws are favourable to plaintiffs.”

In June, Ehrenfeld launched a counterclaim against the London ruling in a court in New York.

She
applied to the United States District Court for the Southern District
of New York for a declaratory judgment saying that what she wrote was
not libellous under American law, and that Mr Justice Eady’s order was
unenforceable in the United States because it was contrary to the
American Constitution’s protection of freedom of speech.

The
memorandum filed by Ehrenfeld’s lawyers in the District Court in New
York, says that writers should be free “to ferret out and publish the
facts without fear of expensive lawsuits and huge judgments in foreign
countries whose defamation laws and commitment to freedom of expression
and public discourse are ‘repugnant’ and antithetical and ‘contrary’ to
our fundamental public policy”.

That’s England they’re talking about, when they refer to “foreign countries” that have “repugnant” laws
which are “antithetical” to free speech. It has become fashionable in
Britain to look down one’s nose at America under President Bush – “Bush
country”, where people are apparently a bit thick and gung-ho – yet
many in America look down their noses at our backward attitudes to
freedom of speech and freedom of the press. The use of the word
“repugnant” comes from an American court case from 1997. The US
Maryland State Appeals Court had been asked to enforce an English libel
ruling against an American citizen, as American courts routinely do.
But in this instance the court refused, arguing that “the principles of
English libel law fail to measure up to the basic human rights
standards and are repugnant to public policy and the constitutional
ideal of free speech”.

Ehrenfeld points out that had she been
sued in America, “the case would probably have been thrown out of
court”. The law of defamation in America is a far more progressive
affair than it is in London. Under English libel law, the claimant does
not need to prove that the allegedly defamatory statement was false,
only that it was potentially damaging to his or her reputation; under
American law, claimants do have to prove falsity. And in America,
following the landmark ruling of New York Times v Sullivan in 1964,
there is a “public figure defence”, which makes it very difficult for
people in the public eye to sue for libel. In order to succeed,
claimants would have to show not only that the allegations were false,
but that they were made maliciously or with reckless disregard for
truth.

“Your libel laws have a pernicious chilling effect,” says
Ehrenfeld. “I know of two publishers who have cancelled books that
cover similar issues to mine – books they had already commissioned and
bought – because they don’t want to get involved in lawsuits.”

She
hopes her counterclaim in New York will set a precedent that will stop
English libel rulings being enforced against American citizens. “We
don’t want the English legal system imposed on us anymore,” she says.

Brendan O’Neill is deputy editor of spiked (www.spiked-online.com)

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