Censorship

Pulped Nonfiction

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In a recent New York Times op-ed piece, Michael Broyde and Deborah Lipstadt, professors of law and Jewish studies, respectively, at Emory University, decry "libel tourism," in which unhappy book subjects use plaintiff-friendly defamation laws to punish, silence, and intimidate their critics. They cite a 2004 suit that Saudi billionaire Khalid bin Mahfouz filed against Rachel Ehrenfeld, author of a 2003 book, Funding Evil, that charges him with financing Osama bin Laden and other terrorists:

Mr. bin Mahfouz sued Ms. Ehrenfeld for libel in Britain, where libel laws impose an onerous burden on authors to prove the truth of their statements, and in 2005 won a default judgment ordering her to apologize, destroy all copies of the book and pay the sheik roughly $230,000 in damages.

The book had never been published or sold in Britain, but about 20 people had ordered it online and had it shipped there. British courts asserted jurisdiction, and Ms. Ehrenfeld found herself subject to the laws of another country.

The touchy Bin Mahfouz—co-founder of the Muwafaq Foundation, which the U.S. Treasury Department considers an Al Qaeda front—was also behind a decision by Cambridge University Press to pulp the 2006 book Alms for Jihad: Charity and Terrorism in the Islamic World, an outcome he achieved simply by threatening legal action. Look for an interview with a co-author of that book in the December issue of reason.

But the Ehrenfeld decision goes further, since Alms for Jihad at least had a British publisher. Under the logic of this ruling, books never officially released in the U.K.—including books whose publishers decided against releasing them there precisely because they feared the legal peril that doing so would entail—are still subject to British libel laws if people in the U.K. (say, would-be libel plaintiffs or their friends) happen to order the book online. As Broyde and Lipstadt note, "it appears that wealthy and powerful people who object to a book can simply find a country with sympathetic laws, have a book shipped there and sue." U.S. courts have yet to decide whether the order against Ehrenfeld can be enforced here.

Oddly, Broyde and Lipstadt's piece does not mention Lipstadt's own brush with British libel law, in which she triumphed over revisionist historian David Irving, who sued her over her 1993 book Denying the Holocaust. In that case, Lipstadt's publisher, Penguin, stood by her, unlike Cambridge in the Alms for Jihad case.

Earlier this month Michael Moynihan noted David Irving's comeback tour.

[Misspelled name fixed.]

NEXT: Laws Are Made To Be Broken

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  1. What happens if Ms. Ehrenfeld just gave the Brits the finger? She’s not a citizen, has no earnings there and they have no jurisdiction over her. I highly doubt the US would extradite her for this and may even back her up.

  2. @MO – if a U.S. court decides that the judgment from Engald should be given “comity,” then the judgment can be enrolled her and Ms. Ehrenfeld’s assets and wages attached until the $223K judgment is satisfied. The big question, as I understand comity, is whether the foreign law is “repugnant” to U.S. public policy. See Telnikoff v. Matusevich, 347 Md. 561 (1997), where Maryland courts decided that English libel law violated Maryland public policy and a judgment there would not be enforced here.

  3. Mo:

    What if she could not go back to Merry Ol’ England?
    Oh god! To never again see the…umm whats that thing people go to Britain to see? Mutton? Tweed? Rain? Wigs? Whigs?

    Yeah, I think a big finger for English jurisprudence is in order. I’m sure the libel laws are still slanted towards protecting Royalty from exposes and the like. And by “I’m sure”, I mean I have no concrete reason to believe this, but still do.

  4. Did we lose a war or something?

  5. You misspelled Rabbi Broyde’s name, Jacob. He happens to be my parent’s Rabbi. Small world.

  6. England blows goats.

  7. And that’s that.

  8. You misspelled parents’, Micha, unless you meant only one of them.

  9. I whole heartedly agree that libel tourism is rediculous. It is the most absurd grab for international jurisdiction since the US congress banned overseas internet gambling.

  10. To avoid this sort of thing in the future, should scholars insist that their works not be shipped to England? The resulting unpleasantness might get the Brits to rethink their position.

  11. You misspelled parents’, Micha, unless you meant only one of them.

    Is it misspelled or mispuncuated? Does anybody care?

  12. Jolly ol’ England can jolly well fuck right the jolly well off.

  13. With apologies in advance to Ms. Ehrenfeld, why couldn’t some of the sheikh’s pals order the books from Saudi Arabia or wherever he is, then prosecute her THERE and have her sentenced to death? Then abduct her from the US with special crack spy teams? Just a thought…

  14. We arrest British subjects for our gambling laws and they return the favor on the libel end.

  15. I agree that 40 Internet orders (especially orders engineered by the plaintiff) shouldn’t be enough to trigger a foreign court’s jurisdiction over an American.

    USA! USA! USA!

    OK, now what about the difference between English and U.S. libel law.

    The American law of libel used to be the same as the English law, until Earl Warren and his buddies on the Supreme Court decided that the law needed to be rewritten in order to protect poor, innocent media corporations which print damaging accusations which they are unable to prove.

    Warren and his buddies formulated the equivalent of the “asked for it” doctrine which used to be seen in rape law – if someone ventured into the spotlight of public controversy (for example, by holding public office, or by committing the sin of being famous), the media would have a license to print falsehoods against that person, unless the person could prove that the media outlet in question either knew the charge was false or showed reckless disregard of truth or falsity.

    This was called “actual malice,” in an Orwellian gesture, because “actual malice” is different from the previous concept of “malice” (ill-will) in libel law.

  16. Great movie, even if it does star Sally Field.

  17. I whole heartedly agree that libel tourism is rediculous. ridiculous

    Is it misspelled or mispuncuated? mispunctuated

  18. English libel law is horrific, it was also (until recently no doubt) the only area of UK law where the burden of proof is on the defendant.

    Another recent example is the treatment of several blogs by their webhost after threats were made on behalf of Alisher Usmanov.
    It lead to several unrelated websites being shut down (including that of Tory candidate for Mayor of London, Boris Johnson).

    The events a chronicled here and it seems to have started something of a grassroots campaign against the libel laws from liberals and libertarians (naturally the conservatives of the Tory and Labour party hierarchy are not so keen for reform)

  19. The rule of law (and us lawyers) is what keeps the little person from being overwhelmed by giant corporations. Britain should be so lucky.

  20. Couple of things: It’s English libel law, not British. Scotland has its own civil legal system, quite different.
    Reugnant: quite right, there’s been at least one case where US courts refused to enforce a libel judgement.
    But the real cracker is that all of this applies to each and every blog post, wherever written and wherever hosted! It’s the act of downloading it which is the act of publication. So one reader in England (or Wales, wherre the law is the same) and you’re subject to the libel law there.
    The actually happened to Dow Jones in Australia.

  21. For the curious, there was an essay on this subject last week in TNR by the author of a similar book. Fortunately, the (US) publisher stood by him.

  22. Well, on the positive side, it’s good to see someone actually getting value from a government. I mean I would be pissed if I had paid as much in bribes and he has and they ruled against me.

    Good thing the Saudis aren’t in bed with the government of the good ol’ US of A, though.

  23. “and he has” = as he has

  24. This was called “actual malice,” in an Orwellian gesture, because “actual malice” is different from the previous concept of “malice” (ill-will) in libel law.

    No, actual malice is not the issue. The traditional American rule has always been that the burden of proof is on the plaintiff in a libel case to prove falsehood. New York Times v. Sullivan merely increased the plaintiff’s burden of proof as to media outlets and “famous” people. The English rule, by contrast, actually puts the burden of proof on the person accused of libel to prove the truth of their statement, which is a very odd way of doing things.

    I strongly doubt that American courts will enforce the judgment against Ehrenfeld, given widespread hostility toward the English libel rule by the bench and bar in the USA.

  25. “No, actual malice is not the issue. The traditional American rule has always been that the burden of proof is on the plaintiff in a libel case to prove falsehood. New York Times v. Sullivan merely increased the plaintiff’s burden of proof as to media outlets and ‘famous’ people.”

    Until the 1960s, American courts followed the so-called “English” rule, which is more commonly called the common-law rule, by which whoever publishes a damaging accusation has to prove truth.

    The Warren Court carved out exceptions for public officials and “public figures,” and the Burger Court carved out more limited exceptions for other plaintiffs, in *Rosenbloom v. Metromedia.* See a concurring opinion in that case, summarizing the various positions, at

    http://tinyurl.com/2dk67y

    Please note, this case doesn’t fit into the paradigm of oppressive government versus courageous, dissenging media. The radio station in this case had uncritically reported the cops’ and prosecutors’ accusations that plaintiff, publisher of nudist magazines, was a smut-peddler who had published obscene material. Plaintiff was ultimately acquitted of obscenity charges. Could he require the defendant radio station to prove the accusations it had uncritically recycled from cops and prosecutors?

    Where does libertarian analysis come down on that issue?

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