U.K. exports censorious libel laws
Just in time for Banned Books Week, which runs until Oct. 6, The New York Times reports how a loophole in English law, combined with the globalized booktrade, may have a deleterious effect on freedom of speech outside of U.K. borders.
At the centre of the controversy is Saudi banker and businessman Sheik Khalid bin Mahfouz, who wrangled an apology and undisclosed damages from Cambridge University Press for publishing Alms for Jihad, which alleges that bin Mahfouz is an Al Qaeda financier. Bin Mahfouz also recently won damages from U.K. publisher Pluto Press, U.S. author Rachel Ehrenfeld, and the newspaper The Mail on Sunday for making similar allegations.
The concern is that stringent libel laws in the U.K., where the burden of proof falls on the defendant, will affect foreign publishers, since, as the article points out, English libel law technically applies not just to U.K. titles, but to all books on sale in the U.K.:
Today, any book bought online in England, even one published exclusively in another country, can ostensibly be subject to English libel law. As a result, publishers and booksellers are increasingly concerned about “libel tourism”: foreigners suing other foreigners in England or elsewhere, and using those judgments to intimidate authors in other countries…
Incidently, the article points out that one of the original “libel tourists” may be Roman Polanski, who in 2005 used the English courts to sue Vanity Fair, which published allegedly slanderous comments by former Harper’s editor Lewis Lapham.
Though this is true about the UK, Canada’s libel laws are worse. Not only, as in the UK, do we have reverse onus laws for libel, and not only does the plaintiff not have to prove damages in order to receive an award, we also lack a clear defense for the criticism of public figures. The UK at least has the Reynolds defense which allows for that.
Google “wayne crookes” to pick up on the risk in Canada.
Kudos to the New York Times for the finally explaining how foreign libel suits are undermining First Amendment protections in the United States.
As a New York author whose work on international terrorism has been chilled by one such libel tourist, Khalid bin Mahfouz, I want to clarify some aspects which are misrepresented in the article.
The NYT writes that Mahfouz “won damages” against me in England, which could be interpreted to mean that he achieved victory in an adversarial process. In fact, Mahfouz received a default judgment against me because I chose on principle not to defend myself in England, where my book was never published and where I would not have received the equivalent of First Amendment protections.
Donadio also states, in the paragraph following the description of Mahfouz’s lawsuits against me and others, that “[i]n each case, defendants have paid settlements before trial.” I have neither apologized nor paid any settlements to Mahfouz.
Instead, I have sued Mahfouz in New York for a declaratory judgment that his English judgment is unenforceable here and that he could not prevail on a libel claim against me in New York.
As far as I know, I am the only author who has taken affirmative legal action against Mahfouz. On November 15, 2007, the New York Court of Appeals will hear oral argument on whether a New York court has jurisdiction over Mahfouz in my case.