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June 14, 2007

British Libel Laws Stifle Reports On Islamic Terrorism

This article by Adrian Morgan (Giraldus Cambrensis of Western Resistance) appeared earlier in Family Security Matters and is reproduced with their permission.

Background To UK Libel Law

Current UK Libel Law is based upon the Libel Act of 1819, which includes clauses against "blasphemous libel" which have not been repealed (the last trials for blasphemy took place in 1929 and 1979). Amendments to the law have been made, importantly in 1988 and 1952. In a move originally designed to assist "ordinary" men and women to prosecute newspapers, the Defamation Act 1996 was introduced.

British libel law differs dramatically from US libel law in that in Britain, the burden of proof lies not upon the plaintiff to demonstrate a libel, but upon the defendant to show that what is written is truthful or has "justification". Almost uniquely in British law, there is no need for a plaintiff to actively prove that a defendant is "in the wrong". Nor is there a requirement to prove malice. Despite the intentions of sections 8 - 10 of the 1996 Defamation Act to "democratize" libel cases and to speed up claims where less than 10,000 pounds is sought by the plaintiff, libel cases are still typically pursued mainly by the wealthy.

An article published on May 14, 2007 by the London Times claimed: "England's libel laws have never been about protecting individuals - at least not poor or helpless individuals. They are about protecting the rich and the powerful. A fair law would be one in which the claimant has to prove falsity, harm and malicious intention, while providing a defense for truth, reasonable care and the public interest. Then both reputations and freedom of expression could be protected."

The Times article, detailing a specific libel case, was removed from the online website. Even reporting critically on such cases can fall foul of the convoluted terms of UK libel laws. The high costs of British court proceedings remain as exorbitant now as they were in the time of Charles Dickens. Those accused of libel only rarely receive legal aid to fight their cases, which can drag on for weeks or months.

Many cases of libel have been pursued in the UK courts by foreign plaintiffs "even when they do not reside there and even when the publication has only minimal circulation in Britain". This is known as "forum shopping" or "libel tourism".

In July 2005, the National Conference of Commissioners on Uniform State Laws (NCCUSL) revised an earlier act from 1962 (amended in 1986), called the Uniform Foreign Money-Judgment Recognition Act. The 1962 Act ensured that a state was "required to recognize a foreign-country money judgment if the judgment satisfied the standards for recognition set out in the Act". The original Act was designed to recognize money judgments from other countries, and has been adopted in all states except Vermont, Indiana and Massachusetts. However, Section 4, clause 3 of the original 1962 Act excludes the need to honor foreign awards if "the [cause of action] [claim for relief] on which the judgment is based is repugnant to the public policy of this state."

As British libel law is fashioned upon a principle which automatically assumes guilt of the defendant, it was successfully argued at a 1997 libel case (Matusevitch v. Telnikoff 347 Md. 561, 598, 702 A.2d 230, 248) that a UK money award could be waived in the state of Maryland as it was against the protections to free speech enshrined in the First Amendment, and against the principles of state law.

Rachel And The Sheikh

It is against the background of these legal principles that an extremely important battle is now taking place in New York State, which could have major ramifications in the pursuance of free speech. Britain's laws on libel are undoubtedly skewed in favor of the plaintiff, and as such do not even begin to conform to US legal or constitutional principles.

Dr Rachel Ehrenfeld is the founder and director of the American Center for Democracy. She is the author of several books, including Evil Money, Narco-Terrorism and Funding Evil.

With a PhD in criminology from the Hebrew University School of Law, Rachel Ehrenfeld has written for major newspapers, she has been a research scholar at New York University, and she has advised the US Defense Department's Threat Reduction Agency. Her book Funding Evil, published by Bonus Books, examines sponsorship of terror, as explained in its subtitle: "How Terrorism is Financed And How To Stop It." In 2005, Rachel was accused of libel in the UK, even though the case did not concern publication of the book in Britain. The subject of the British libel case concerned only 23 copies of her book, which had been purchased by customers in Britain from an online bookstore. Additionally, a single chapter was published in a British newspaper. Even British lawyer Mark Stephens has stated that Dr Ehrenfeld's book is "unobjectionable by American libel standards".

The plaintiff in this case was Saudi billionaire Khalid Salim A. Bin Mahfouz, who is listed by Forbes as having a $3 billion fortune. Accompanying him in the June 2005 libel suit were his two sons. Stephens wrote: "As is her right, she declined to appear in London. Mr Mahfouz, one of a long line of libel tourists to sue in the British courts over minuscule circulations, applied for default judgment and was awarded £10,000, as was each of his sons, who had also sued over how they were presented in the book. Mr Justice Eady, who heard the case, ordered that the Mahfouzs' costs should be paid and - unusually - made an order declaring certain statements in the book false."

Mr Justice Eady is no stranger to controversy, and has managed to virtually reinterpret the UK libel laws according to his own strange reasoning. In other cases, he has circumvented the protection of "public interest" to issue injunctions against newspapers. In December 2006, some wanted to print stories from a cuckolded man about his wife's adulterous relationship with a sporting celebrity. Judge Eady cited the bizarre reasoning that exposure would "distress" the celebrity's wife and children. No representatives of the newspapers were present to argue their case when the injunction was made. Eady's ruling on this case was described by Melanie Phillips: "Once again, human rights law appears to have caused a judge to depart to an entirely different moral and intellectual planet".

Another case involved the chairman of British Petroleum (BP), Lord Browne, who was having an affair with a male Canadian student. Mr Justice Eady ruled that the Mail on Sunday could not publish details of how the two had met (via a gay dating website), and ordered an injunction. Browne lied to the High Court, claiming he had met his boyfriend "while exercising in Battersea Park", and subsequently lost his job. On this case, journalist Stephen Glover of the Independent wrote on May 27: "Mr Justice Eady is beginning to worry me. Is he a friend of a free Press? There are good reasons to believe that he isn't... Newspapers, so fearless in their criticisms of politicians, are sometimes feeble in responding to over-mighty judges. Let me simply say that I regard Mr Justice Eady as a threat to a free Press, and that this won't be the last time I write about him."

In December 2004 Eady awarded £150,000 damages against the Daily Telegraph newspaper, in a libel suit brought by George Galloway. The Telegraph published the contents of documents which had been found in Baghdad, which stated that Galloway had been paid money by Saddam Hussein. Eady said that he was "obliged to compensate Mr Galloway... and to make an award for the purposes of restoring his reputation." At no stage did Eady actually rule that the claims made against Galloway were untrue.

There are defenses in UK libel claims which are called "qualified privilege". These were previously based upon a 1999 case brought by Ireland's former PM, Albert Reynolds, against Times newspapers and relate to the "public interest". The manner in which Eady effectively redrew the terms of "qualified privilege" was explained by the Daily Telegraph's legal editor.

In 2005 Eady allowed another "forum shopper", film-maker Roman Polanski, to mount a libel case in Britain while not being physically present. This was a precedent, made because Polanski is wanted in the US and feared extradition. Polanski appeared by video link and won £50,000 damages against Vanity Fair magazine for an article published in 2002.

Mr Justice Eady ruled in Rachel Ehrenfeld's case on May 3, 2005, and released his full judgment on June 15, 2005. Eady even accused Rachel Ehrenfeld, who has 20 years' experience in researching terrorism, of trying to cash in on the publicity of being sued in London while not appearing in court.

At the time of Eady's 2005 ruling, Khalid bin Mansour had already pursued four libel cases in Britain, and had won all of these. Since then his UK-pursued cases against US publishers and individuals have attained double figures. Mansour's lawyer, Laurence Harris, claimed of the Ehrenfeld case: "Our clients have brought proceedings in England because they maintain residences, transact business and have reputations to protect in this jurisdiction."

Mr Justice Eady denied that the Sheikh was "forum shopping", asserting that this was "tendentious and a misrepresentation of the true position. The claimants are not hiding behind anything and are prepared to meet the defendants head on as to the merits of the claim." According to the Times newspaper: "He ruled that it was false to say that Sheikh bin Mahfouz: supported terrorism; contributed millions of dollars to al-Qaeda; deposited tens of millions of dollars into accounts held by terrorists implicated in the US embassy bombings in Kenya and Tanzania which killed 224; and sponsored Hamas and Hezbollah terrorist atrocities."

Rachel Ehrenfeld responded to Mr Justice Eady's default ruling by launching her own suit in Manhattan, where she is based. She applied to the US District Court for the Southern District of New York, seeking a ruling that declared that the statements she made in the book Funding Evil were not libelous under US law. She also asked for a judgment declaring that the ruling by Mr Justice Eady was not enforceable in the US as it contradicted the constitutional protection of freedom of speech on 15 points.

Without discussing the exact details of Khalid bin Mansour's initial case against Dr Ehrenfeld, there is a case where Eady ruled favorably in a suit brought by Saudi plaintiffs which was subsequently ruled invalid. This libel case was brought by Mohammed Jameel, president of the Abdul Latif Jameel Group, and Abdul Latif Jameel Company Limited, against The Wall Street Journal Europe. On February 6, 2002, WSJ had published an article entitled "Saudi Officials Monitor Certain Bank Accounts". This claimed that the company was one of a number of Saudi businesses which, at the behest of US law enforcement agencies, was being monitored by Saudi banking regulators.

On December 19, 2003 following a jury trial, Mr Justice Eady rejected claims by WSJ that it had acted responsibly in publishing its article. He ordered WSJ to pay £30,000 to Mohammed Jameel and £10,000 to Abdul Latif Jameel Company Limited. On February 6, 2005 the Court of Appeal upheld this ruling. Mohammed Jameel was represented by solicitors Carter-Ruck. The Court of Appeal also forbade WSJ from appealing to the House of Lords. Despite this, the appeal did go to the House of Lords, and on October 11, 2006, the verdict was overturned. Three Law Lords ruled against two others to reach this decision.

Counter-Claims

The situation in Britain, where libel cases do not even follow precedents laid out in earlier trials, as in other areas of law, has created a bizarre situation. Books which are published with impunity in the US are sued in Britain, and then authors in the US are expected to abide by the terms of the Uniform Foreign Money-Judgment Recognition Act. This has led to some US publishers understandably refusing to risk marketing their work in Britain.

One such case involves Random House, who in 2004 withdrew a proposed UK publication of the book House of Bush, House of Saud by Craig Unger, as a direct result of the trends of "libel tourism" or "forum shopping". This happened despite the book being published in the United States with no comparable fears of litigation. According to the Guardian newspaper: The final link asserted by Unger came in 1995 when, he says, Mr Bin Mahfouz's two sons invested $30m (£16m) in the Carlyle Group, a firm linked to the Bush family. What Unger describes in his book is the kind of exploitation of oil-rich Saudis which has often been linked to US and British politicians in the last 30 years.

Mr Bin Mahfouz points out that he neither personally funded Harken nor paid anybody else to do so. On the other alleged business links, his lawyers, Kendall Freeman, say he 'does not propose to comment'. But what gives the book a controversial edge is the linking of this phenomenon with the financing of terrorism. Unger accuses Mr Bin Mahfouz of making donations to Osama bin Laden. Mr Bin Mahfouz has an answer to this: he says Osama's brother, Salem, asked him in 1988 to hand over $270,000 (£150,000) to Osama's cause. He believed it was going to Afghanistan. At that time, as he accurately says, this was entirely in line with US foreign policy."

Faced with the prospect of lengthy and costly court cases, other authors have been forced to withdraw their work. Last year, Jean-Charles Brisard and Guillaume Dasquie paid an undisclosed amount to the Sheikh and his son Abdulrahman for allegations they made in their 2001 book "The Forbidden Truth". The book was set to be withdrawn from sale globally. In 2004, Brisard was ordered by the UK High Court to pay £10,000 damages and £30,000 costs to Mahfouz under the terms of the 1996 Defamation Act. This was for claims the terrorism expert had made in a "UN Report on terrorist financing" In total, as Mr Brisard informs me, he was ordered to pay £462,246 in costs, and £30,000 in damages for the two cases (Action Numbers HQ03X03141 and HQ03X01283) brought in the UK.

Dr Rachel Ehrenfeld's American suit against Khalid Bin Mahfouz was initially rejected by the US District Court for the Southern District of New York. On April 26, 2006, Southern District Judge Richard C. Casey acknowledged an application by Khalid bin Mahfouz to dismiss Dr Ehrenfeld's action, claiming a lack of "personal jurisdiction".

Dr Ehrenfeld and her lawyers, Kornstein Veisz Wexler & Pollard, LLP took the case 06-2228-cv to the United States Court of Appeals for the Second Circuit. The claim is made in the appellant-plaintiff's submission that "Her ability to research and write freely about international terrorism has been impeded by the new and pernicious phenomenon of libel tourism."

On Friday, June 8, 2007, Judge Wilfred Feinburg at the Court of Appeals for the Second Circuit, joined by Circuit Judges Pierre N. Leval and Jose A. Cabranes, requested guidance from the New York Court of Appeals on this case. The issue of personal jurisdiction on a case brought against a New York citizen in a non-US jurisdiction may be covered by a New York State statute - CPLR § 302(a)(1). This allows jurisdiction if on his own or through an agent, a person conducts any business within the state. Dr Ehrenfeld has argued that by serving papers and documents upon her, then Mr Bin Mahfouz is conducting business in New York.

As stated in the New York Law Journal, Judge Feinburg wrote: "The question is important to authors, publishers and those, like Mahfouz, who are the subject of books and articles. The issue may implicate the First Amendment rights of many New Yorkers, and thus concerns important public policy of the state. Because the case may lead to personal jurisdiction over many defendants who successfully pursue a suit abroad against a New York citizen, the question before us is also likely to be repeated."

This is certainly not the end of the story. Dr Ehrenfeld will still be unable to travel to the United Kingdom due to Mr Justice Eady's default ruling. The situation of libel suits in Britain being mounted when only a few publications are produced in the UK is ultimately damaging for Mr Khalid Bin Mahfouz. It could appear to naive onlookers that he would rather ignore the more stringent tests of US libel courts, using his immense wealth to silence criticism, without ever proving conclusively that any "malice" was intended by authors. Much of the fault of this situation lies within the convoluted fabric of Britain's libel legislation. Much of the fault must also be blamed upon Mr Justice Eady and his attempts to infuse libel legislation with the terms of Britain's 1998 Human Rights Act. As Melanie Phillips suggests, Mr Justice Eady has departed "to an entirely different moral and intellectual planet."

The situation for writers, publishers and bloggers in Britain is still dire. Under such conditions, it is inevitable that writers and publishers will be cautious and prone to self censorship, even when their writing is considered to be "in the public interest". Mr Justice Eady's 2004 judgment in favor of George Galloway has effectively removed that line of defense. Yet the case of Dr Ehrenfeld signals some hope for those Americans who have been the subject of "libel tourism" rulings in jurisdictions beyond the shores of the US.

As Rachel herself states: "After seven long moths, on June 8, 2007, the Second Circuit Court of Appeals breathed vitality into my case against Saudi billionaire Khaled bin Mahfouz - handing my extraordinary lawyer, Daniel Kornstein (and associates) an important victory - and establishing a legal precedent that henceforward affects every American writer and publisher... When and if the New York Court of Appeals decides that there is jurisdiction over Mahfouz, the case would proceed on the merits. This would allow me to take pre-trial "discovery" of Mahfouz's financial activities to further confirm the accuracy of my reporting on him in "Funding Evil".

The costs of mounting this legal case in the United States are still high. Donations can be sent to the Legal Support Fund at the American Center for Democracy.

Adrian Morgan

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Posted by Giraldus Cambrensis at June 14, 2007 1:23 PM

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Posted by: ewhitton at June 15, 2007 3:13 AM

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