By Dale McFeatters
Scripps Howard News Service
The United States, with its constitutional guarantees of freedom of speech and press, has a long and robust tradition of free expression, far too robust and free for some. Thus began the unfortunate custom of "libel tourism," shopping for foreign courts that will muzzle U.S. journalists, authors and publishers in a way American courts will not.
Unfortunately, one of the favored venues for restrictive and chilling judgments is England, where libel laws are heavily weighted toward the plaintiff, placing on the defendant the entire burden of proving that a statement was not false and injurious.
The poster author for this abusive libel shopping is American author Rachel Ehrenfeld, who in 2003 wrote a book, "Funding Evil: How Terrorism Is Financed ― and How to Stop It," in which she alleged that a certain wealthy Saudi businessman was indeed a financer of terrorism.
Khalid bin Mahfouz probably knew that in an American court he would have to prove that Ehrenfeld recklessly published statements that did him actual injury ― financial losses, humiliation, etc. ― and she did so knowing or suspecting that the statements might be false.
Finding this rather daunting, Mahfouz elected to sue in England, where a few copies of the book had been sold over the Internet, enough for an English court to give him standing to sue.
Ehrenfeld elected not to go to England to defend herself ― it would have taken deep pockets to do so ― so an English court entered a default judgment against her of $230,000 in damages and legal fees. This caused great outrage among American authors, journalists and publishers, and several states passed laws barring their courts from enforcing such judgments.
But what was really needed was a federal law, and now Congress is on the verge of enacting one. This past week, the Senate unanimously and by voice vote passed a bill that bars U.S. courts from recognizing or enforcing defamation judgments by foreign courts if they are "repugnant" to the First Amendment and U.S. legal standards for libel proceedings. The House had earlier passed a similar bill.
Now if England ― and Singapore and Australia and Indonesia ― would only do likewise.