Libel tourism#Berezovsky v Michaels

{{Short description|Defamation litigation chosen based on favorable jurisdiction}}

Libel tourism is a term, first coined by Geoffrey Robertson, to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defenses for those accused of making derogatory statements.[http://www.globaljournalist.org/stories/2004/07/01/libel-tourism/ Libel Tourism Chills Investigative Journalism] {{webarchive |url=https://web.archive.org/web/20101124103658/http://globaljournalist.org/stories/2004/07/01/libel-tourism/ |date=24 November 2010 }}

A critic of English defamation law, journalist Geoffrey Wheatcroft attributes the practice to the introduction of no win no fee agreements, the presumption that derogatory statements are false, the difficulty of establishing fair comment and "the caprice of juries and the malice of judges."{{cite news |title=The worst case scenario |last=Wheatcroft |first=Geoffrey |work=The Guardian |page=32 |url=https://www.theguardian.com/commentisfree/2008/feb/28/pressandpublishing.law |date=28 February 2008 |access-date=17 April 2008}} Wheatcroft contrasts this with United States law since the New York Times Co. v. Sullivan case. "Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly."

Two other critics of English defamation law, the US lawyers Samuel A. Abady and Harvey Silverglate, have cited the example of Irish–Saudi businessman Khalid bin Mahfouz, who by the time of his death in 2009, had threatened suit more than 40 times in England against those who accused him of funding terrorism.{{cite news |title='Libel tourism' and the War on Terror |author=Samuel A. Abady |author2=Harvey Silverglate |work=Boston Globe |url=https://www.boston.com/ae/media/articles/2006/11/07/libel_tourism_and_the_war_on_terror/ |date=7 November 2006 |access-date=17 April 2008}} Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor Richard Perle threatened to sue investigative reporter Seymour Hersh in London, because of a series of critical articles Hersh had written about him.Berlins, Marcel. Index on Censorship, July 2004, Vol. 33 Issue 3, p18-20

A series of cases involving US citizens being sued in English courts led to new laws in both countries. In the United States, the SPEECH Act unanimously passed the US Congress, which makes foreign defamation judgments unenforceable in US courts if they do not meet US free speech standards. In England and Wales, the Defamation Act 2013 requires plaintiffs to show that England is the proper jurisdiction to hear a case when the defendant does not live in England or Wales.

Case law

=''Berezovsky v Michaels''=

In 2000, the House of Lords gave Boris Berezovsky and Nikolai Glushkov permission to sue Forbes for libel in the English courts.{{cite web |url=https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd000511/bere-1.htm |title=Judgments - Berezovsky v. Michaels and Others Glouchkov v. Michaels and Others (Consolidated Appeals) |publisher=publications.parliament.uk |date=11 May 2000 |access-date=19 September 2011}} In 2003, the case was settled when Forbes offered a partial retraction.{{Cite news |url=http://www.economist.com/node/1632864 |title=Shuddup |newspaper=The Economist |date=13 March 2003}}The following statement appended to the article on the Forbes website summarises: 'On 6 March 2003 the resolution of the case was announced in the High Court in London. FORBES stated in open court that (1) it was not the magazine's intention to state that Berezovsky was responsible for the murder of Listiev, only that he had been included in an inconclusive police investigation of the crime; (2) there is no evidence that Berezovsky was responsible for this or any other murder; (3) in light of the English court's ruling, it was wrong to characterize Berezovsky as a mafia boss. [https://www.forbes.com/forbes/2003/0331/022.html "Berezovsky Vs. Forbes"] Forbes 31 March 2003

The issues relating to jurisdiction of the English courts in such actions were appealed to the House of Lords, at that time the highest court in England and Wales, making this the key test case on libel tourism.{{cite book |last1=Delta |first1=George B. |last2=Matsuura |first2=Jeffrey H. |title=Law of the Internet |edition=3rd |volume=1 |year=2008 |publisher=Aspen Publishers |isbn=978-0-7355-7559-2 |pages=3–92 |chapter=Jurisdictional issues in cyberspace |quote=Berezovsky is the leading case in what has come to be known as “libel tourism}}{{cite book |last=Crook |first=Tim |title=Comparative media law and ethics |year=2010 |publisher=Taylor & Francis |isbn=978-0-415-55161-8 |pages=240–241 |chapter=Defamation law}}{{cite journal |last=Taylor |first=Daniel C. |date=November 2010 |title=Libel Tourism: Protecting Authors and Preserving Comity |journal=Georgetown Law Journal |volume=99 |page=194 |issn=0016-8092 |url=http://georgetownlawjournal.org/files/pdf/99-1/Taylor.pdf |access-date=23 September 2011 |url-status=dead |archive-url=https://web.archive.org/web/20140102154742/http://georgetownlawjournal.org/files/pdf/99-1/Taylor.pdf |archive-date=2 January 2014}}

=The Ehrenfeld case=

Khalid bin Mahfouz and two members of his family sued Rachel Ehrenfeld, an Israeli-born writer and United States citizen, over her 2003 book on terrorist financing, Funding Evil, which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups.{{Cite web |url=http://www.iht.com/articles/2008/01/20/business/libel21.php |title=Britain, a destination for "libel tourism" |access-date=6 March 2008 |archive-date=23 January 2008 |archive-url=https://web.archive.org/web/20080123142744/http://www.iht.com/articles/2008/01/20/business/libel21.php |url-status=dead}} The book was not published in Britain,{{Cite journal |last=Hartley |first=Trevor C. |date=2010 |title='Libel Tourism' and Conflict of Laws |url=https://www.jstor.org/stable/25622268 |journal=The International and Comparative Law Quarterly |volume=59 |issue=1 |pages=25–38 |doi=10.1017/S0020589309990029 |jstor=25622268 |issn=0020-5893}}{{Rp|page=31}} although 23 copies of her book had been purchased online in the UK,{{cite news |title=New York state lawmakers offer legislation to protect authors |url=https://www.fosters.com/story/lifestyle/2008/01/14/new-york-state-lawmakers-offer/52668475007/ |work=Foster's Daily Democrat |date=14 January 2008 |access-date=9 September 2023 |url-status=live |archive-url=https://web.archive.org/web/20230909045326/https://www.fosters.com/story/lifestyle/2008/01/14/new-york-state-lawmakers-offer/52668475007/ |archive-date=9 September 2023}} and excerpts from the book had been published globally on the ABC News web site. Ehrenfeld was advised by English lawyer Mark Stephens to claim that the suit in England violated her First Amendment rights under the U.S. Constitution and chose not to defend the action.{{citation needed|date=February 2021}} Instead, she countersued in the U.S.{{cite news |last=Pallister |first=David |url=https://www.theguardian.com/world/2007/nov/15/books.usa |title=US author mounts 'libel tourism' challenge |work=The Guardian |date=15 November 2007 |access-date=9 September 2023 |url-status=live |archive-url=https://web.archive.org/web/20230408175104/https://www.theguardian.com/world/2007/nov/15/books.usa |archive-date=8 April 2023}} In his 2005 judgment, Justice Eady criticised Dr. Ehrenfeld for attempting to cash in on the libel action without being prepared to defend it on its merits and specifically rebutted her suggestion of forum shopping. Eady ruled that Ehrenfeld should pay £10,000 to each claimant plus costs, apologize for false allegations and destroy existing copies of her book.[http://www.binmahfouz.info/news_20050503_full.html Full text of the High Court judgment], 3 May 2005

Eady has been internationally criticized{{Cite web |url=https://www.theguardian.com/commentisfree/libertycentral/2009/oct/19/eady-libel-tourism-free-speech |title=How our senior libel judge stamps on free speech – all over the world | George Monbiot |website=TheGuardian.com |date=19 October 2009}} for his perceived bias in the case and his general restrictive approach to free speech. Additionally, the libel laws which were applied came under scrutiny in England, where calls for libel law reform increased after Ehrenfeld's case. Analyzing English libel law, the United Nations Human Rights Committee cautioned that: "practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as 'libel tourism.' The advent of the internet and the international distribution of foreign media also create the danger that a State party's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest."{{Cite web |url=http://hrlibrary.umn.edu/hrcommittee/ireland2008.html |title=Concluding Observations of the Human Rights Committee |work=University of Minnesota Human Rights Library |date=30 July 2008 |access-date=15 July 2010 |url-status=live |archive-url=https://web.archive.org/web/20110607222024/http://www1.umn.edu/humanrts/hrcommittee/ireland2008.html |archive-date=7 June 2011}}

Laws addressing libel tourism

=England and Wales=

On 1 January 2014, the Defamation Act 2013 came into force, requiring plaintiffs who bring actions in the courts of England and Wales alleging libel by defendants who do not live in Europe to demonstrate that the court is the most appropriate place to bring the action. Serious harm to an individual's reputation or serious financial harm to a corporation must also be proven. Good faith belief that a disclosure was in the public interest was made a defense.{{cite news |title=Libel Cases Now Harder to Bring in England |url=https://www.nytimes.com/2013/04/26/world/europe/new-law-makes-suing-for-libel-harder-in-england.html |access-date=26 April 2013 |newspaper=The New York Times |date=25 April 2013 |author=Sarah Lyall}}

=United States=

==Federal==

The Free Speech Protection Act of 2008 and 2009 were both bills aimed at addressing libel tourism by barring U.S. courts from enforcing libel judgments issued in foreign courts against U.S. residents, if the speech would not be libelous under American law. These protections were passed in the 2010 SPEECH Act which passed unanimously in both the House of Representatives and the Senate before being signed by US President Barack Obama on 10 August 2010.{{cite web |url=http://www.thecuttingedgenews.com/index.php?article=12432 |title=Congress Unites to Pass Bill Protecting American Authors and Publishers |author=Meisel, Aylana |publisher=The Cutting Edge |date=3 August 2010 |access-date=11 August 2010}}{{Cite news |url=https://www.theguardian.com/media/greenslade/2010/aug/11/medialaw-barack-obama |title=Obama seals off US journalists and authors from Britain's libel laws |author=Greenslade, Roy |work=The Guardian |date=11 August 2010 |access-date=11 August 2010}}

==New York==

In late December 2007, the Second Circuit Court of Appeals, based on a decision by the New York State Court of Appeals, ruled that the state's current "long-arm" statutes governing business transactions did not give it jurisdiction to protect author Ehrenfeld.[http://www.nycourts.gov/ctapps/decisions/dec07/174opn07.pdf N.Y. Court of Appeals ruling], 20 December 2007 The court noted, however, that if the law were to change, Ehrenfeld could go back to court.

On 13 January 2008, two members of the New York State Legislature, Assemblyman Rory I. Lancman (D-Queens) and Senator Dean Skelos (R-LI), introduced a "Libel Terrorism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B)Alyssa A. Lappen, "[http://www.humanevents.com/article.php?id=24649 America's First Amendment lifeline]", Human Events, 25 January 2008 to amend the New York civil procedures in response to the Ehrenfeld case. The bill passed the New York state legislature on a rare unanimous vote,{{Cite web |url=http://www.rcfp.org/newsitems/index.php?i=4878 |title=New York strikes back against libel tourism |author=Matthew Pollack |date=1 April 2008 |work=Reporters Committee for Freedom of the Press}} and on 29 April 2008, Gov. Paterson signed the bill into law.{{Cite web |url=http://www.state.ny.us/governor/press/press_0501082.html |title=Gov. Paterson signs legislation |date=1 May 2008 |url-status=dead |archive-url=https://web.archive.org/web/20100129204027/http://www.state.ny.us/governor/press/press_0501082.html |archive-date=29 January 2010}} The Libel Terrorism Protection Act enables New York courts to assert jurisdiction over anyone who obtains a foreign libel judgment against a New York publisher or writer, and to limit enforcement to those judgments that satisfy "the freedom of speech and press protections guaranteed by both the United States and New York Constitutions."{{Cite news |author1=Samuel A. Abady |author2=Harvey Silverglate |url=http://www.nypost.com/seven/02252008/postopinion/opedcolumnists/rachels_lawnys_libel_tourism_fix_99158.htm |title=Rachel's Law: NY's 'Libel-Tourism' Fix |work=New York Post |date=25 February 2008}}

==California==

In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act) that took effect 1 January 2010. The Act provides that California courts shall not recognize a foreign-country judgment if "the judgment includes recovery for a claim of defamation unless the court determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and California Constitutions" (C.C.P. sec. 1716(c)(9)) and other protections.Cal. Code of Civil Procedure sections 1716 and 1717, as amended by Chapter 579, Statutes of 2009 (SB 320 - Corbett). http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0301-0350/sb_320_bill_20091011_chaptered.pdf The law received significant bi-partisan support.CA Leg Counsel bill/vote records

==Illinois==

In August 2008, Illinois enacted a libel tourism law that is similar to the statute passed in New York.735 Ill. Comp. Stat 5/12-621 (b)(7) (2009)735 Ill. Comp. Stat. 5/2-209 (b-5) (2009)

==Florida==

In May 2009, Florida also enacted a libel tourism law similar to the law passed in New York.Florida Statutes 55.605 (2)(h); 55.6055

References

External links

[https://web.archive.org/web/20080712163538/http://www.libeltouristmovie.com/ THE LIBEL TOURIST]. A short documentary detailing one such case involving bin Mahfouz

Category:Conflict of laws

Category:Defamation

Category:English defamation law

Category:Pejorative terms