U.K. Libel Laws Chill Another American Book
By Rachel EhrenfeldFortune Magazine
June 8, 2009
The most recent casualties of Britain's pernicious libel laws are New York-based best-selling author Michael Gross and his intriguing and well-researched book Rogues Gallery: The Secret History of the Moguls and the Money That Made the Metropolitan Museum. It was published in May by Broadway Books, an imprint of Crown, which is owned by Random House.
The unauthorized book describes, among others, a New York socialite named Anne E. de la Renta, who serves on the influential boards of trustees of New York's Metropolitan Museum of Art and the New York Public Library.
Mrs. de la Renta did not appreciate her portrayal. She hired an international law firm in New York with offices in London and tried to suppress publication of the book, and Random House received a letter threatening a libel lawsuit it.
"When that failed," says Mr. Gross, "a credible threat of a lawsuit in England was made publicly … similar threats were issued to at least two tabloids in New York, and other major media outlets mysteriously canceled reviews of the book and interviews."
Mr. Gross fell victim to the chilling effect of what has become a booming business for the British Bar: libel tourism.
It all began in 2003, when Bonus Books, a small California-based publisher, released my third book, Funding Evil: How Terrorism is Financed and How to Stop It. In the thoroughly documented book, I showed how, among many others, Saudi billionaire Khalid bin Mahfouz funded al-Qaeda, Hamas and other radical Muslim organizations.
Mahfouz, who does not live in England, sued me in London for libel. But I live in New York, and my book was not published or marketed in England. Nonetheless, the English court accepted jurisdiction because 23 copies of Funding Evil arrived in England via Internet purchases.
Although Mahfouz's suit has never been tried on merit, the British court, in a landmark decision, granted Mahfouz a judgment by default, awarding him hundreds of thousands of dollars in cost and damages. As Britain's Sunday Times observed, "This judgment almost single-handedly launched the American freedom of speech backlash against U.K. libel laws."
Mark Stephens, a prominent British advocate of free speech told the Times, "Our libel laws have made Britain a place where any of the world's bullies and wealthy celebrities can wander into court ... and launder their reputations."
In response to Mahfouz' lawsuit, I sued him in New York to declare his English judgment violated my rights under the First Amendment. That litigation led the New York Legislature last May to enact the "Libel Terrorism Protection Act" which has sometimes been called "Rachel's Law." It was signed into law in May 2008.
Although "Rachel's Law" protects Mr. Gross in New York State from the enforcement of foreign libel judgments, the law does not protect Random House, which operates in Britain.
Upon receiving the hand-delivered threatening letter, the publisher asked the author, who reserved the English publication rights, to request that Amazon U.K. immediately block the sale of the book in England. The traumatized author complied, and the book is unavailable there.
Thus far, Mrs. de la Renta has not filed a lawsuit in New York or in London against Random House. However, the mere threat of such a suit in London was enough to chill its promotion in the U.S. and kill its sales in Britain.
An editorial in the New York Times on May 26 called for a federal law, which like New York State's "Rachel's Law" would protect publishers and writers against the enforcement of foreign libel judgments.
"Congress needs to pass a law that makes clear that no American court will enforce libel judgments from countries that provide less protection for the written word," said the Times.
In addition to New York's law, anti-libel-tourism laws have already passed unanimously in Illinois and Florida, and are pending before the legislatures in California, New Jersey and Hawaii.
At the federal level, a "Free Speech Protection Act" is now before Congress. It is sponsored by Sens. Chuck Schumer, D-N.Y., Arlen Specter, D-Pa., Joe Lieberman, I-Conn., and Ron Wyden D-Ore., and Reps. Peter King R-N.Y., Anthony Weiner, D-N.Y., and 10 others. The proposed bill would allow writers to counter-sue for damages.
Despite a lively media campaign to change U.K. libel laws, the British legal establishment does not seem to see anything wrong with the current ones. Not even the warning issued last summer by the U.N. Committee on Human Rights, that Britain's libel laws violate human rights, caused the well-established and very lucrative libel tourism industry to change.
In the U.S., meanwhile, most free speech organizations support the Free Speech Protection Act and have called upon Congress to protect American authors and publishers by holding hearings and passing the bill as soon as possible. Without this bill, foreign libel laws will continue to intimidate the freedom of expression as provided by the Constitution and deprive the American public from finding out the truth.
Dr. Rachel Ehrenfeld, author of Funding Evil: How Terrorism is Financed and How to Stop It (banned in the U.K.), is director of the American Center for Democracy.