Friday, December 11, 2009

'Libel Tourism' Is Not Just a Problem in the UK ...

The New York Times today has a story out of London that summarizes a hard-hitting series of recent stories in the Times of London about Britain's disgraceful libel courts.

The story describes the issue in the UK in good detail, and reports that political movement is under way in Britain to reform libel laws that encourage aggrieved foreigners to come to England to sue Americans for libel, on charges that never would stand up in a U.S. court.

But there's a new wrinkle being inadvertently introduced by any notion that the problem is now being tackled. That's because these libel cases against Americans for things said or written in the U.S. are turning up elsewhere in the world, and not just in the UK (which has, however, led the way).

Largely in response to the UK "libel tourism" disgrace, Sen. Arlen Spector introduced a bill, the Free Speech Protection Act of 2009, that would prohibit enforcement in the U.S. of libel judgments obtained against Americans in other countries, in cases that would be inimical to the U.S. First Amendment. Spector's bill prominently cited a libel case lost in Britain by Rachel Ehrenfeld, a New York scholar who had been sued by a Saudi billionaire she mentioned in a book she wrote on how money is funneled into terrorism, "Funding Evil."

Spector's bill, S.449, co-sponsored by Sens. Schumer, Lieberman and Wyden, has been stalled in the Judiciary Committee all year. But only last week, some staffers of Judiciary Committee Chairman Sen. Patrick Leahy finally joined efforts by Specter's legal staff to get behind the the languishing bill and possibly move it out of committee.

Now, some wind is going out of those sails -- because of the idea now spreading that the "libel tourism" problem, a phenomenon in Britain, is likely to be addressed and fixed by the British Parliament.

For example, here, rolling up its sleeves, comes the esteemed Scripps Howard News Service to muck the stalls today.

"England finally seems to have wearied over being the favored destination of libel tourists and, according to The New York Times, is considering overhauling its laughably outdated and one-sided libel and defamation laws," says an editorial sent out today by the Scripps Howard News Service. The sages at Scripps Howard do approve of the Free Speech Protection Act, in principle -- but they also note primly that "it would be best if England made it unnecessary for the Senate to act."

Stop the presses! What's "laughably outdated" is the notion that this is just a problem in Britain.

It so happens that "libel tourism" cases against American citizens are occurring in other countries besides Britain, including Ireland and in Canada (where Paul Williams, an American author, is being sued by a Canadian college for some things he wrote in the U.S. about a terrorist cell, on allegations that would never stand up in a U.S. court. The last time I spoke with Paul, he said he and his wife had spent over $100,000 so far on his defense in Canada.)

And, let's see, where else?

Oh, right: Brazil! I, of course, am being sued in Brazil for allegedly libeling the entire nation by my critical (and wholly accurate) reporting and commentary on the way Brazilian authorities botched the investigation of the horrific 2006 mid-air collision that killed 154 over the Amazon (I was one of seven survivors) -- and scapegoated the two American pilots on criminal charges that still stand, even after impartial investigations concluded that errors by Brazilian air-traffic control were the probable cause of the accident.

The Brazil suit against me was filed by a relative of one of those killed, a woman I never even heard of until the suit was announced, and certainly never wrote a word about. She claims she "feels discriminated against" by my reporting on Brazil authorities' xenophobic behavior after the crash, and on the shaky condition of air safety over the remote Amazon.

The lawsuit is based on the assertion that an insult to the "honor" of Brazil constitutes an actionable injury to each and every citizen of Brazil. It claims, in a series of jaw-dropping falsehoods, that I insulted those killed in the accident by questioning Brazilian air safety, and that I called the nation of Brazil bad names such as "most idiot of all idiots."

The Brazilians retained the New York law firm of Grant, Herrmann, Schwartz & Klinger to serve me with the papers at my home in New Jersey, and to try to enforce the Brazilian judgment against me -- which seeks about $300,000 in damages from me and demands an apology in the New York Times and numerous other news organizations, as well as in a separate blog I started right after the crash (and discontinued in Jan. 2008) to report on the aftermath.

If these kinds of cases stand in Brazil or Canada (or North Korea or Iran or Somalia or Switzerland or any other country that feels its "honor" has been impugned by something written or said in the U.S.) -- and if American citizens are subject to foreign libel or criminal judgments in such cases -- the free speech protections of the First Amendment cease to exist.

And the threat is to anyone who says or writes anything -- not just authors and journalists, but bloggers, scientists publishing papers, travel reviewers, comedians, sports writers, even casual users of social networking sites.

So it's good news that England, which is a dependably sensible country, looks as if it might address the problem that has made it an international legal disgrace.

But Congress still needs to act, because these cases are spreading and evolving. The libel tourism devil is busy all over the world, and in places where sense often flies out the window when emotion and politics barge through the door with writs in hand.


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