April 13, 2009
Sometimes it seems that globalization, like some medieval king, has given the world many more unintended offspring than rightful heirs. Miseries are globalized too.
Case in point: The U.S. practice known among lawyers as forum shopping. That’s when your attorney files your suit in a courthouse where the law and the locals will look kindly on your problem, even if it’s a place with the barest connection to your beef.
Forum shopping has come to media law, where it’s called libel tourism or, more harshly, libel terrorism. It’s driven in part by the global accessibility of most everything that’s said, written or thought. That means lawyers can claim a book defamed somebody in a country where it was never actually published, as long as people there can order copies online or download accounts of whatever nastiness it alleges.
Libel tourism is also driven by the fact that U.S. law makes it very hard for people in the public eye to win defamation cases. Courts here give the media leeway to make mistakes and not get nailed—especially on matters of public importance—unless their fact-gathering was so slipshod and their efforts to verify so lazy that they didn’t seem to care whether the reporting was true or not.
It’s not like that elsewhere. England, in particular, has become the favored game preserve for the rich and the angry to hunt the press. English courts give them a good shot at big damages, and they may also get the offending work recanted, recalled and ground into pulp. Best of all, they may not even have to sue, since the threat alone may keep the work from ever seeing light of day.
This isn’t new; London has been the world’s libel capital since at least the early 1990s. But the practice has spread beyond Nicholas Cage suing Kathleen Turner because he didn’t actually steal that dog, as she claimed in her autobiography, or Cameron Diaz collecting from the National Enquirer over a tale in its U.S. edition alleging she cheated on her boyfriend (a story never published elsewhere and downloaded only 279 times to British web addresses.)
The current controversies involve bigger, post-9/11 issues, exemplified in what U.S. legal scholar Richard Winfield called the Arab Effect—a surge of cases brought by wealthy Middle Easterners tied to terrorism funding by Western journalists. The emblematic case involves the 2003 book, “Funding Evil: How Terrorism Is Financed and How to Stop It” by U.S. writer Rachel Ehrenfeld, who was sued by a Saudi businessman she linked to Al Qaeda. Ehrenfeld didn’t contest the suit, and had a $250,000 default judgment entered against her. The book sold 23 copies in Britain.
The examples go on: The threat of a lawsuit in 2007 prompted the Cambridge University Press to trash copies of a second book on terrorism funding and ask libraries to destroy any they had. An Icelandic bank collected from a Danish newspaper over articles allegedly downloaded in Britain. Ukrainian energy billionaire Rinat Akhmetov sued two Ukraine-based, Ukrainian-language Internet publications, successfully.
Why is London appealing as a place to sue?
First, the defamation rules are different. If you’re sued there you must prove what you wrote is true. That sounds reasonable, but it’s a world of difference from this country, where plaintiffs must show the information was false. Worse still, you’re held to courtroom evidence standards: Your sources have to testify and you can’t offer second-hand accounts—invaluable to reporters but barred by courts as hearsay.
Second, English courts no longer prohibit contingency fee arrangements, another U.S. practice gone global. That’s when lawyers front their clients litigation expenses in hopes of a piece of the win, if any, and losers pay all costs. Because costs have soared—losing at trial now runs some $4 million—defendants are keen to settle. The percentage of cases settled rose threefold between 2006 and 2008.
Ehrenfeld’s case prompted legislation in New York State and a bill now before Congress that would protect U.S. citizens from libel judgments originating in foreign courts that provide weaker free speech guarantees than in the United States.
It’s distasteful for this country to show so little respect for another legal system as to find their decisions unworthy of being heeded. But the willingness of English courts to furnish weapons for legal thuggery is unfathomable.
We’ll never know how much valuable investigative work has been halted in its tracks by fear of ruinous litigation by people with inexhaustible legal offense funds.