Fifth Ebsworth Memorial Lecture “Libel Tourism”  2010

By Lord Hoffmann

Dr Rachel Ehrenfeld is the principal director of the American Centre for Democracy, which declares itself to “fight[s] for the freedom to expose and monitor threats to the national security of the US and Western democracies.” She was born in Israel but lives in the United States. Dr Ehrenfeld has firm views on the Palestinian question and considers the British to be soft on terrorism. Towards the end of 2003 she published a book called Funding Evil, How Terrorism is Financed and How to Stop It. It contained allegations that a well-known Saudi businessman named Khalid Bin Mahfouz had contributed millions of dollars to Al Qaeda and other terrorist organizations. It is hard to think of more serious allegations which could be made against an Arab doing business with the West. The book was not an international best seller but it appears that 23 copies were sold to persons in the UK by internet sellers like Amazon. In addition, a chapter of the book containing some of the allegations was put on the internet by ABCnews.com and accessed by people in this country. Mr Mahfouz and his sons were known in financial and energy circles in London; they owned at least one house here and one of their business interests at the time of publication was an oil exploration company which had its headquarters in London.

Mr Mahfouz commenced proceedings for libel in London on 30 June 2004. Dr Ehrenfeld and her publisher were served out of the jurisdiction. She instructed English solicitors but did not acknowledge the proceedings. Instead, she started proceedings against Mr Mahfouz in New York for a declaration that her allegations were not actionable under US law and that an English judgment against her would not be enforced. The judge in New York dismissed the action on the ground that he had no jurisdiction over Mr Bin Mahfouz and his decision was upheld by the New York Court of Appeals.

Dr Ehrenfeld did not defend the action when it came before Eady J on 3 May 2005. It is perhaps worth pausing at this point and asking what defences would have been open to her on the merits or whether she could have challenged the jurisdiction of the court to hear a case against her, a non-resident, at the instance of Mr Mahfouz, who owned a house in London but was not ordinarily resident here. As to the merits, her preface suggested that she intended to plead justification, but given that her sources were likely to have been confidential, it might not have been an easy defence to run. She could however have relied upon the public interest defence created by Reynolds v Times Newspapers Ltd. This enables the publisher of a defamatory statement to plead that it concerned a matter of general public interest and that he or she acted responsibly in checking his sources and, where appropriate, giving the person defamed a reasonable opportunity to rebut the allegation. An example of a successful defence was Jameel v Wall Street Journal, decided by the House of Lords a year after Dr Ehrenfeld’s case which, as it happens, also concerned the alleged funding of terrorism. The House of Lords decided that the subject was one of considerable public importance and that the Wall Street Journal had acted responsibly in checking and publishing its story.

The subject of Dr Ehrenfeld’s book was likewise of undoubted public importance. Nevertheless, she did not put forward the Reynolds defence. One can only speculate about why she did not. Perhaps she had some doubts about whether she would satisfy the English test of responsible publication.

Jurisdiction

As for jurisdiction, the old rule was that a single publication within the jurisdiction is sufficient to give rise to a cause of action (Duke of Brunswick v Harmer). But that is no longer English law. In Jameel v Dow Jones Co Inc the Court of Appeal decided that if the damage to reputation in this country was insignificant, the court could out the proceedings as an abuse of process. In Shevill v Presse Alliance SA the Court of Justice of the European Communities decided that Article 5(3) of the Brussels Convention conferred jurisdiction in libel cases on the courts of any Member State “in which the publication was distributed and where the victim claims to have suffered injury to his reputation.” It was for the national law to decide what counted as distribution and injury to reputation. In that case, Miss Fiona Shevill who lived in Yorkshire wanted to sue France-Soir, which sold 237,000 copies a day in France, 230 in the United Kingdom and 5 in Yorkshire. The House of Lords, following the decision of the Court of Justice, held that she was entitled to do so. In such a case, governed by the Brussels I Regulation, the United Kingdom is obliged to take jurisdiction. In other cases, it can still apply the doctrine of forum non conveniens and decline jurisdiction on the ground that there is another clearly more appropriate forum in which justice can be done between the parties.

In Berezovsky v Michaels, Lord Steyn said that it was right to take jurisdiction because “the distribution in England of the defamatory material was significant and the plaintiffs have reputations in England to protect.” As it happens, I dissented because the judge had found that Mr Berezovsky has not suffered substantial damage to his reputation in England and I did not think that the Court of Appeal should have reversed him. But there was no dispute over the principle to be applied. Whether Dr Ehrenfeld could have obtained a stay on the ground that only 23 copies of her book had been sold here must be a nicely balanced question. But then there is the internet publication. The internet is a means of publication in every country in the world and therefore a means of causing damage to a person’s reputation, if he has one, in any country in the world. Logically, therefore, the courts have decided that the tort is committed where the material is downloaded (Godfrey v Demon Internet; Dow Jones and Co Inc v Gutnick). The website ABCnews.com appeared from the evidence to have a substantial readership in England and Dr Ehrenfeld may therefore have found it difficult to persuade the court that the claimants were not alleging a real and substantial tort in this country.

The claimants were aware of Dr Ehrenfeld’s claim in the New York proceedings that they were “hiding the truth behind the screen of English libel law” and therefore did not rely upon the burden of proof being upon a defendant to justify a libel or put forward some other defence. They applied under the summary disposal procedure in sections 8 to 10 of the Defamation Act 1996 and dealt in detail with the grounds upon which the book alleged that they had been supporting terrorism. It is not easy to prove a negative but Eady J said: “I think it is fair to say that they have done everything they can to demonstrate the falsity of the allegations and to vindicate their reputations.” The judge made a declaration of falsity and awarded £10,000 damages, the maximum allowed under the summary procedure, and costs.

The Libel Tourism Protection Act

The Ehrenfeld judgment created a great stir in the US. Dr Ehrenfeld and her supporters campaigned for legislation to protect Americans against foreign libel laws. In 2008 the State of New York passed the Libel Terrorism Protection Act, an odd name which presumably implies that Eady J is a libel terrorist. It provides that a foreign judgment in defamation proceedings should not be enforceable in the US unless the foreign law provides “as least as much protection for freedom of speech and the press as would be provided by both the US and New York constitutions.” It does not seem to matter whether the claimant is a national of the foreign jurisdiction, suing to vindicate his reputation in his home country or even whether the defendant submitted to the foreign jurisdiction. Similar legislation has been passed in California, Illinois, New Hampshire, Florida and Hawaii. A Bill has been introduced into the US Senate by Senators Arlen Specter and Joseph Lieberman which goes further and gives the defendant a cause of action in the US to recover any damages he has paid and costs he has incurred in the foreign proceedings, as well as damages for “the harm caused to the US person due to decreased opportunities to publish, conduct research or generate funding.”

To be a beneficiary of this cause of action, you must be a “United States person”, which is defined to mean a US citizen, an alien admitted for permanent residence or a business entity lawfully doing business in the US and the publication must have been “primarily” in the US. It is important to notice that these provisions, if they become law, will impose liability upon British citizens suing in British courts for libels affecting their reputations in Britain. They can hardly be described as tourists. All that can be said is that they have had the temerity to sue an American. The lesson for all foreigners is clear. If you have assets in the US, beware of trying to defend your reputation in the country in which you live and have been libelled by an American. You may find yourself on the receiving end of a counter-suit for damages. No doubt publication on the internet through an American server will count as publication primarily in the US, however many people may access the libel in your own country.

The World’s Most Illiberal Libel Laws?

The American reaction to Dr Ehrenfeld’s case has been seized upon by some of the media in this country as support for a campaign to introduce the New York Times v Sullivan rule here. Is it the case that we have the democratic world’s most illiberal libel laws? The rule in New York Times v Sullivan was adopted to deal with a very special and local political situation which existed in the US in the early 60s of the last century. Racist politicians and juries in the southern states were using the law of libel to punish any expression of support for the civil rights movement. The Supreme Court decided that the only practical remedy was virtually to abolish the law of defamation for “public figures”, an expression which came to include not only politicians but anyone who involved themselves in public life and even “involuntary public figures” who had became caught up in some newsworthy incident. For such people, the bar against liability is set so high as to be virtually insurmountable. The social conditions which gave rise to the rule have long passed away and it has not escaped both scholarly and judicial criticism, even in the US, although this has tended to be drowned out by the approval which it naturally receives from the media.

As evidenced by the Ehrenfeld affair, Americans tend to believe that their way is the only way for the whole world. The United Kingdom is obliged under Article 40 of the International Covenant on Civil and Political Rights to submit periodic reports on its compliance with the Covenant. In 2007 it submitted its report. On 8 July 2008 the representatives of the United Kingdom were summoned to appeared before the Committee in Geneva and explain our position. The American representative on the committee was Professor Ruth Wedgwood of John Hopkins University, Washington. When it came to the Committee’s concluding observations, there was a rap over the knuckles for the United Kingdom for its failure to adopt the American law of libel. In a passage which I imagine was drafted by Professor Wedgwood, since she quoted it on an internet blog in support of Dr Ehrenfeld’s campaign, the Committee said: “The Committee is concerned that the State party’s 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 (Art 19). The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called “public figure” exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures…”

The suggestion in this passage is that failure to follow American practice may be a breach of this country’s international obligation under the Covenant to uphold freedom of speech and the press. This is a remarkable proposition, because if state practice is any evidence of international law, it must be of some significance that the rule in New York Times v Sullivan appears to prevail nowhere except in the US. The Supreme Court of Canada gave it careful consideration in Hill v Church of Scientology of Toronto but rejected it on a number of grounds, one of which was that it was unduly skewed in favour of people who published defamatory statements and gave too little protection to reputation. As Binnie J said in WIC Radio Ltd v Simpson, “An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy”. In Australia the High Court in Theophanous v Herald and Weekly Times likewise gave careful consideration to the New York Times v Sullivan defence and rejected it for much the same reasons as in Canada. It has been rejected in New Zealand. In the United Kingdom a proposal to introduce the defence was rejected by the Neill Committee in 1991 and not argued by the appellants in Reynolds v Times Newspapers Ltd. In the common law world, therefore, the US is the only country in step.

Justification

The other criticism of English libel law is that a defendant, if he chooses to run a defence of justification, has the burden of proving that the defamatory allegation is true. This rule is frequently expressed in America by saying that in England the defendant is guilty unless provided innocent. The European Court of Human Rights has several times been invited to rule that it infringes the freedom of speech and the press under article 10 of the Convention. It has consistently refused to do so. The most recent occasion arose out of the Jameel case, in which the Wall Street Journal petitioned the Strasbourg court after losing in the Court of Appeal. Not satisfied with their victory in the House of Lords, they pressed on with their complaint about the burden of proof. The court dismissed it as manifestly ill-founded. They pointed out that the Reynolds defence does not require the defendant to prove the truth of the statement. It is only if the article is not about a matter of public interest or the defendant has not acted responsibility that any question of the truth of the statement arises at all.

And then, what does the burden of proof in practice mean? If a newspaper alleges that Mr Smith, a school teacher, has sexually assaulted a child, what can Mr Smith do to prove the negative if the burden is upon him? True, he can go into the witness box and deny it. But in practice he will do that even if the burden is upon the newspaper. Any libel practitioner knows that he cannot afford not to put his client in the witness box. Whichever party bears the burden of proof, the newspaper will then be at risk of losing unless it brings some evidence to rebut the denial and support its allegations. The burden of proof only becomes relevant if the jury are left in doubt. How often does this happen? Anyone who has sat as a judge will know that cases which turn upon the burden of proof are very rare. Usually, one makes up one’s mind one way or the other, whoever has the burden of proof. And in those rare cases, what should one tell the jury? As Mr Eady J remarked in a talk which he gave in December, do we really want the judge to say to the jury: “This is a case in which there is no public interest in publication, or the newspaper has not acted in accordance with the standards of responsible journalism, but their right to publish is so important that if you are in doubt as to whether he assaulted the child or not, you are to find that he did it”?

Conclusion

I do not want to suggest that English libel law is perfect. No doubt there are improvements to be made and in relation to costs in particular, Lord Justice Jackson has made some helpful proposals. But the complaints about libel tourism come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation. And naturally the American view is enthusiastically supported by the media in this country. But before we are stampeded into changing our law, we should bear in mind that the points about which complaint is made are either binding on us as a matter of European law, as in the Shevill case, or have been approved by the Strasbourg court as compliant with the right to freedom of speech under the Convention. Finally, we ought to inquire into whether in practice libel tourism is a serious problem, not just for the odd American who would prefer us to have the rule in New York Times v Sullivan, but for the administration of justice and the public interest in this country.

This, abridged, Fifth Ebsworth Lecture was delivered by Lord Hoffmann on 2 February 2010. Dame Ann Ebsworth (1937-2002) was the sixth female High Court judge to be appointed and the first to be assigned to the QBD. She left a lasting impression on the legal world and the SEC