Tuesday, October 06, 2009

Citing Brazil Threat, Business Travel Coalition Urges Passage of Federal Free Speech Protection Act

This letter was issued by the Business Travel Coalition today to its 35,000 worldwide members, as well as members of Congress, by Kevin Mitchell, the chairman of the organization:


"BTC Urges Passage of Free Speech Protection Act of 2009

Journalists, business travelers, organizations that fund travel activities at risk

Business Travel Coalition writes to urge swift action in passing the Free Speech Protection Act of 2009 (S.449) out of the Senate Judiciary Committee. The bill provides protections for Americans sued for libel in foreign countries whose laws are inconsistent with the freedom of speech granted by the U.S. Constitution. In addition to journalists, corporate travelers, university researchers, analysts and organizations that issue travel warnings, including corporate travel departments, are at increasing risk.

As you are well aware, S.449, introduced in February 2009, was in response to cases like the one involving Dr. Rachel Ehrenfeld, an academic who writes on terrorism and lectures all over the world. Her 2003 book, Funding Evil, triggered a lawsuit in the UK by a wealthy Saudi businessman who claimed he was libeled in the book. The differences in American and British libel laws are substantial. For example, UK defendants have to prove allegations are true; in contrast, in the U.S. plaintiffs must prove allegations are false. The Saudi won a judgment of $250,000 against Ehrenfeld; sales of her book were banned in the UK; and she can no longer travel there.

The Ehrenfeld suit has been just the most prominent of cases known under the general rubric "libel tourism" in which foreign nationals, claiming to be offended by something written in the U.S. by journalists, researchers or scientists, travel to pliant courts in third countries and obtain libel judgments against American defendants, even though the allegedly offensive speech would be fully protected under the U.S. Constitution. These suits can have a chilling effect on research and publishing, and on U.S. national security. The objective of S.449 is to ensure that libel judgments issued by foreign courts cannot be enforced in the U.S. unless our legal standards for libel are met.

An Ominous New Twist

U.S. journalist and business travel contributor for The New York Times Joe Sharkey covered a plane crash in Brazil, in which he was involved. On Sept. 29, 2006 there was a midair collision at 37,000 feet over the Amazon between a Brazilian 737 and a business jet, on which Sharkey was a passenger. All 154 on the 737 died; the seven crew and passengers on the badly damaged business jet made an emergency landing in the jungle. Sharkey wrote about it once he returned home in the Times and on his blog and conducted interviews in which he was critical of Brazil’s air traffic control system. He vigorously defended the American business-jet pilots who Brazil had been quick to charge with criminal negligence.

On September 16, 2009 Sharkey was served with a complaint seeking US$279,850 in damages. The plaintiff in the lawsuit is identified as Brazilian Rosane Gutjhar who asserts, in a novel claim, that Sharkey offended her country’s dignity in his writings and interviews. Although Gutjhar’s husband died in the crash, Sharkey did not know her, or mention her name at any time. In other words, the plaintiff doesn't have to claim she was personally libeled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the dignity or honor of Brazil in any case involving a crime -- the pilots, Joseph Lepore and Jan Paladino remain on criminal trial in Brazil, in absentia.

The basis of Gutjhar’s suit is that as a Brazilian citizen she “feels discriminated against" by Sharkey’s forceful reporting and commentary in the U.S. about Brazil's alleged cover-up of the causes of the crash. The accuracy of Sharkey’s writings and comments has never been challenged. Sharkey claims that nothing he said or was alleged to have said would constitute libel in the U.S., or even come close. The Free Speech Protection Act would cover libel judgments in foreign countries where the alleged offense would not meet U.S. standards for libel. With Sharkey’s case, it's clear the scope of what constitutes libel has been broadened to include insulting the dignity of a foreign country.

If Brazil, host of the 2016 Olympics, that will no doubt be attended by many U.S. corporate executives for the purpose of entertaining clients, can claim a ruinous judgment in the U.S. against an American citizen who has "offended" that nation, what is to stop any other country -- Iran, Libya, North Korea -- from pursuing the same course of action? And it could be directed not just against journalists or bloggers, but corporate and university travelers and their travel departments.

The near-perfect reach of the Internet has placed Americans, their free speech and their finances in harm’s way. At risk are travel managers issuing country-specific travel warnings, business travelers posting unfavorable trip reviews on social media sites (or the sites themselves), flight crews posting comments on industry bulletin boards or university researchers publishing negative reports. The Free Speech Protection Act of 2009 needs to be passed into law as soon as possible.

Kevin Mitchell


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