Overseas Venue Shopping

Floyd Abrams notes the rise of a troubling new trend:

In recent years, English libel law has come to have a disturbing impact on the right of Americans to speak out.

England has become a choice venue for libel plaintiffs from around the world, including those who seek to intimidate critics whose works would be protected in the U.S. but might not in that country. That English libel law has increasingly been used to stifle speech about the subject of international terrorism raises the stakes still more.

The case against Rachel Ehrenfeld in England by Saudi banker Khalid Bin Mahfouz is illustrative. Her 2003 book “Funding Evil: How Terrorism is Funded and How to Stop It” dealt at length with one of the most significant (and difficult and dangerous to research) topics — the funding of terrorism. The conduct of Mr. Bin Mahfouz as a possible funder of terrorism was one of the subjects discussed in the book, which was published in New York.

Twenty-three copies of the book were sold in England. On that slim basis, Mr. Bin Mahfouz sued there, claiming that his reputation had been gravely harmed.

Ms. Ehrenfeld (on the advice of English counsel) refused to appear before the English courts, and a judgment against her was entered in the amount of $225,000. At any time, Mr. Bin Mahfouz could seek to enforce that judgment. Whether or not he does, the harm to Ms. Enhrenfeld’s reputation remains real.

Abrams argues that protection against such suits, or at least liability, should be enshrined in American law. I’m strongly inclined to agree.

My only hesitation is that we want Americans to be able to sue, in U.S. courts and under the common principles of our law, for relief against damages caused by outrageous conduct by foreign governments, firms, and individuals. We can’t very well demand absolute immunity for Americans while simultaneously claiming jurisdiction over foreigners.

Is there a way to balance these interests?

FILED UNDER: Law and the Courts, World Politics,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. John Burgess says:

    A couple of points:

    First, it’s not a trend. Second, it’s not growing.

    UK courts have been used for libel actions (enforceable in the UK, and sometimes in the EU) for years.

    There’s no particular rise in the numbers that I’ve been able to find. What has risen, perhaps, is Bin Mahfouz willingness to actively defend his name. He’s won in British courts, in French courts, and in US courts.

    Maybe, just maybe, he has a case. His principle argument has been with books that take the presence of his name on the so-called ‘Golden Chain’ as some sort of proof that he ‘funds terrorism’. The problem with that, as even US courts have acknowledged, is that the list has no context and no proven provenence.

    I’ve been following this issue for some time at Crossroads Arabia, particularly as it pertains to the case of Rachel Ehrenfeld. [It’s the most recent and ‘most American focused.]

    There’s certainly a conflict between laws and comity does not seem to be working well. A US law immunizing American authors/publishers against enforcement of foreign courts’ verdicts/sentences that do conflict with the First Amendment might solve it.

    That law, of course, would have no effect on enforcement in the country involved. So yes, American authors could be jailed upon setting foot in another country. Publishers could face economic sanctions–in the country whose law is in question. But that’s the case for any foreign law that one chooses to ignore.

    After all, I can chew gum on any American street. In Singapore, it’s a crime.

  2. yetanotherjohn says:

    I think the balance is that you sue in the court where the libel takes place. If the author and publisher are here in the US, then let him sue and win in the US (and the forum shopping legislation becomes moot). Likewise, US citizens who are harmed in other countries should sue in those other countries. If you can’t trust the courts in those countries, why are you doing business there?

  3. Anthony says:

    “We can’t very well demand absolute immunity for Americans while simultaneously claiming jurisdiction over foreigners.”

    No offence, James, but given the record of the current administration, I’m pretty sure you could…

  4. John Burgess says:

    yetanotherjohn: Does the harm take place when it is initially written (say, the US) or where it was read (say, the UK) or where it hurt the plaintif (say, globally)?