Picture this scenario: you're an American author who's written a well-researched, well-documented book on a topic of broad public interest. Your book's been published in the United States for an American audience. Someone who's mentioned in the book doesn't like what you've written and sues you for libel, but he doesn't sue you here, where the book has been published. He doesn't sue you where you live or where he lives. He sues in England, where the courts have been more than willing to allow foreigners to sue other foreigners over matters that don't involve English interests, and where he won't have to prove that what you've written is false or defamatory. In fact the burden of proof (not to mention the unimaginable financial burden of defending yourself) falls on you. If you think you've fallen down the rabbit hole, welcome to the world of "libel tourism."
A couple of years ago the phrase "libel tourism" would have had little meaning for anyone but a media lawyer. Today, however, there is a growing recognition that the robust public discourse and free speech we take for granted as our First Amendment rights are being seriously threatened by this cynical legal maneuver. The scenario outlined above is not hypothetical. This is exactly what happened to American author Rachel Ehrenfeld soon after her book "Funding Evil: How Terrorism is Financed and How to Stop It" was published. In 2004, Dr. Ehrenfeld, a New York-based author and researcher, was sued for libel by Saudi billionaire banker Khalid bin Mahfouz in a London court under England's notoriously plaintiff-friendly libel laws. (Bin Mahfouz made something of a second career as a libel tourist, successfully suing or intimidating more than 40 authors and publishers, including the venerable Cambridge University Press). The fact that Ehrenfeld's book was never published in England, that neither she nor bin Mahfouz resided there, and that a mere 23 copies of Funding Evil were purchased there over the Internet did not stop the English judge from issuing a ruling against her in absentia (she refused to appear), awarding the Saudi substantial monetary damages and court costs, demanding that Ehrenfeld issue a public apology, banning her book in England, and ordering the destruction of all unsold copies.
Ehrenfeld's response was to ask a federal court in New York to declare the ruling unenforceable in the United States as a blatant violation of her First Amendment rights. The New York court's inability to do so because of jurisdictional limitations in state law prompted swift passage by the New York legislature of a statute that allows New York courts to exercise personal jurisdiction over non-residents who obtain foreign libel judgments against New Yorkers, and prohibits New York courts from recognizing foreign judgments that do not conform to Constitutional guarantees of free speech and free press. Three other states, Illinois, Florida, and California, have followed suit with similar statutes. But this not a problem that can be addressed piecemeal on a state-by-state basis. What we need now is a federal law that will give American authors and publishers who have been hit with foreign libel judgments that could never stand up to First Amendment scrutiny a chance to remove the threat of enforcement and to recoup the often crippling expenses they've incurred. Although the U.S. House of Representatives passed a "libel tourism" bill last June, it is toothless and ineffectual. A bill now pending before the Senate Judiciary Committee--S. 449, The Free Speech Protection Act of 2009-- comes much closer to what's needed.
The use of foreign libel laws to "chill" speech in this country reaches far beyond Rachel Ehrenfeld and the English courts. Joe Sharkey is a New Jersey-based freelance business travel writer who frequently writes for the New York Times. In September 2006 Sharkey survived a mid-air collision between a Brazilian commercial airliner and a business jet on which he was traveling. All of those on the Brazilian plane were killed, but Sharkey and his fellow passengers survived an emergency landing in the Amazon jungle. Writing about the crash in the New York Times and on his blog, Sharkey defended the American pilots, whom he felt were being scapegoated by Brazilian authorities, and criticized the Brazilian air traffic control system (criticism later substantiated by the U.S. National Transportation Safety Board). In September of this year he was served at his home in New Jersey with papers accusing him of libeling the country of Brazil, in a lawsuit filed by a woman whose husband died in the crash. The plaintiff, who was never mentioned in anything that Sharkey wrote, sued under a bizarre Brazilian law that allows any citizen to claim damages for an alleged insult to the country's honor.
Unless we are given the legal tools to fight back, American authors and publishers will find themselves increasingly in harm's way as a result of Internet book sales and Internet speech. Let's tell that to Senate Judiciary Committee Chairman Pat Leahy and ask him to get The Free Speech Protection Act moving.