Libel tourism or: When the internet is a bad thing for press freedom

In August 2010 President Barack Obama signed into law the Securing the Protection of our Enduring and Established Constitutional Heritage Act (or, if you prefer SPEECH). Why? To protect Americans from being sued in foreign countries for things they say and write in America, for American audiences.

There was one country Congress had in mind when drafting the bill. It wasn’t some far flung outpost of tyranny that had become the enemy of American freedom of speech, but the courts of England and Wales.

How?

The story starts with the publication of Rachel Ehrenfeld’s book Funding Evil in 2003. In it, she describes the complex networks of financiers, banks, fake charities, drug trafficking and money laundering that fund global terrorism. She also makes specific allegations against individuals, including a Saudi businessman named Khalid bin Mahfouz, who was accused of funding Al-Qaeda. (I can write that without fear of being sued, incidentally, since Khalid bin Mahfouz has died since the book came out. English law rules that you cannot libel the dead. So I can say what I like about him.)

Anyway, the book was published in the United States, where constitutional guarantees of free speech ensure that being sued for libel is unlikely. In the US in a defamation case, you have to prove that the allegations aren’t true. In England, the reverse is so, so the burden of proof falls on the person making the accusation. Given that her book was about the complex networks of finance the people who fund Al-Qaeda filter their money through, to make it hard for them to be found out…actually proving her allegations would be difficult.

As a result, Ehrenfeld’s book was published and marketed only in the United States. so she must have been surprised to be sued in…London.

Although the book had not been published in the UK, 23 copies (yes, twenty three) had been bought from America via amazon.com and other US based sites. And a chapter from the book had appeared, for a time, on the website of the ABC television network. Which is accessible from the UK, for anyone who cares to have a look. At no point had a UK organisation either sold the book, or reprinted the allegations. Bin Mahfouz didn’t live in the UK at the time. But he was allowed to sue. And won.

The message the English courts sent, that anyone can be sued for libel in England wherever they’ve made the allegations, was loud and clear and profoundly disturbing. It became something of a cause célèbre in the US, even making it into a South Park episode where a fictional, and robustly heterosexual Tom Cruise shouts “I’ll sue you in England!”

The episode in question still hasn’t been shown on television in England.

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