Sunday, December 20, 2009

Libel Tourism Gets Its Passport Checked

At long last, some ground is being gained in the ongoing battle of Islamofascism versus free speech. Our English cousins don't have a First Amendment, but they've built a lot of protections into their basic documents and common law. That wasn't the problem. It was England's very archaic and pro-plaintiff libel laws that were getting attention from the free nations of the West.

Nearly every news article or editorial exposing the facts surrounding militant Islam was immediately targeted for suppression either as libel against Islam or libel against a particular Muslim who was mentioned in the article. That kind of suit went pretty much nowhere in the United States where the First Amendment protects free expression of ideas, and where defamation law makes it a requirement for the plaintiff to show malice, intended or negligent. When it comes to public figures, American law makes it even more difficult by requiring a showing of actual malice (either intentional or so reckless in its disregard for the truth that it rises to the level of malice).

Not so for England, where libel laws haven't changed much since the trial of Oscar Wilde. In a reversal of the common law concept of innocent until proven guilty, libel laws require the defendant to prove his innocence once he has been charged with defaming anyone or anything. And there's no exception made for religious or political speech. The Islamic radicals certainly don't want their agenda exposed, so they have used the lenient English courts to obtain huge judgments and suppression orders to prevent writers and speakers from uttering a single discouraging word about the religion of peace or any of its leading practitioners. Then they trot off with their judgments, demanding they be enforced universally.

The Americans rebelled. Some of the harshest criticism of the worldwide jihad has come from American sources which were printed and broadcast in other parts of the world, including England. When Khalid bin Mahfouz (see below) came to America seeking to enforce his English judgment, we told him to take a hike. First there were the constitutional arguments that such enforcement would "shock the conscience" of a nation with ironclad guarantees of free religious and political speech built on a foundational document called the Constitution. Then came the flurry of proposed federal and state statutes nullifying any English libel judgment against an American that didn't rise to the American standard of defamation. Americans (and their lawyers and judges) of all political and religious stripes (except one) generally rallied together to stop this nonsense in its tracks.

Until America acted, the threat to worldwide reporting of atrocities and terror planning were real and immediate. Major sources of information including American newspapers were on the verge of abandoning distribution in England and installing firewalls to block access to their overseas websites. If you think the National Enquirer is a scandal-sheet, you should read some of the English tabloid press. But there the press goes after minor celebrities and those with little financial backing because the risks are exceeded by the increase in readership. But they don't take on the big boys--like the Saudi-funded Islamic octopus.

The New York Times printed an article about Simon Singh, the author of "Fermat's Enigma" who was sued for libel in England for his efforts to expose the British Chiropractic Association for promoting bogus treatments. Said Singh: "It's quicker and easier and simpler to apologize or settle," which he knows well because he has refused to do so and is spending everything he has to defend himself. That kind of courage is rare.

The first case of its kind to be brought to America for enforcement was that of Rachel Ehrenfeld who accused Saudi billionaire Khalid bin Mahfouz of channeling money to Al Qaeda in a book written and printed in the United States entitled "Funding Evil." There was certainly enough evidence to lead anybody to the same conclusion, but not enough to satisfy the English demand for absolute proof. The book sold exactly 23 copies in England, but that was enough for the English courts to take jurisdiction. Mahfouz was awarded $225,000 in damages (which he didn't need but could use as a bludgeon to silence Ehrenfeld). Ehrenfeld had refused to submit to English jurisdiction or to participate in the trial.

By the time Mahfouz's lawyers came knocking on Ehrenfelds's door, the state of New York had already passed legislation making the English judgment impossible to enforce. Congress has not yet passed similar legislation (too busy trying to pass socialized medicine and cap 'n tax), but it is in the hopper. Many other states have followed New York's example. If the judgment doesn't rise to the basic constitutional requirements of American jurisprudence, it will not be enforced.

The English law journals abound with examples like this. But apparently not for much longer. These laws have not only been used to promote Islamic libel terrorism, but have affected the standing of English courts over completely unrelated matters as well. A recent case involved a a professor at the University of Iceland who made disparaging remarks about a the competence of an Icelandic businessman. No lawsuit, because Icelandic law allows fair comment (much like ours). So when the professor moved to London five years later, the businessman sued him there. And won, although the judgment was later reversed on procedural grounds of inadequate service of process.

Litigious Americans have not been above using this dirty trick of libel tourism. A British cardiologist criticized a clinical trial of a drug produced by NMT Medical of Boston at a conference in Washington, D.C. The suit would have gone nowhere in either Boston or D.C., so NMT merely waited until the doctor returned to England, and sued him there. The doctor has refused to yield, and at this point the litigation goes on, with the doctor already having spent over 100,000 pounds sterling of his own money rather than cave in to a false charge.

Tired of being an international laughingstock, members of Parliament are finally proposing to bring the English libel laws into conformity with the free speech provisions of other Western nations. It was an Englishman who gave this kind of backdoor suppression of free speech the moniker of libel tourism. Members of Parliament are now proposing to go the whole nine yards and pass legislation which will make libel much more difficult to prove when legitimate (even if ultimately wrong) matters of public interest are discussed openly and in good faith. A mere allegation of defamation followed by a huge award of damages will no longer suffice.

In The Times of India, reporter Sarah Lyall said "Russian oligarchs, Saudi businessmen, multinational corporations and American celebrities all have their way in the courts of London where jurisdiction is easy to obtain and libel laws are heavily weighted in favour of complainants. The justice secretary, Jack Straw, said recently that he was alarmed about 'libel tourism.' And in the House of Commons, a committee has listened to a parade of witnesses denounce the current law as perverse, unfair, prohibitively expensive, contemptuous of free speech and an anachronism in an age when access to articles on foreign websites can be obtained anywhere." As a matter of fact, it looks like Parliament is even considering going one step farther and adopting America's laws forbidding frivolous lawsuits which are filed solely to suppress public opinion (SLAPP suits--strategic lawsuits against public participation). The monetary damages may soon be worn on the other foot.

It looks like libel tourism and suppression of the free exchange of ideas is on its last legs in England, unless their notoriously cowardly ministers are afraid it will offend the emergence of sharia law. For the immediate future, it looks like those who would have their horrible reputations laundered in the courts must look elsewhere.

12 comments:

StanH said...

We’ll see Lawhawk. The British had better assert their identity or become an oppressed majority. It seems the world has learned Alinsky’s “Rules for Radicals,” use the system against system.

Joel Farnham said...

LawHawk,

Change is in the Air. Not the hopey changie thing from BO, but the kind that is saying enough is enough. NO MORE!!!!

AndrewPrice said...

Lawhawk, I just read an interesting article on this -- about a Danish doctor whose patients have experienced really severe side effects with a drug produced by GE. He revealed these side effects at a medical seminar, and GE launched a libel lawsuit against him -- spending over 300,000 pounds so far to shut him up. From the sound of it, the whole suit is frivolous, but that doesn't seem to matter in England.

So much for freedom of speech!

LawHawkSF said...

StanH: I think this realization that they are lagging behind the western legal world my be a first step in the right direction.

LawHawkSF said...

Joel: I think you're right. The Brits are coming to understand that the law can be both a sword and a shield. And they're finally catching on to the idea that certain portions of their society are using the law solely as a sword (a scimitar?). We owe so much to the English for our system of law that I'm pleased to see them fixing this large hole in an otherwise wonderful system of law.

LawHawkSF said...

Andrew: That was Doctor Henrik Thomsen, a highly-respected radiologist. A Danish doctor makes a speech at a medical conference in Oxford, England questioning the use of American corporation GE's Omniscan equipment. His facts were certainly sufficient to raise serious questions, and as a result, medical warnings were issued. Did GE analyze and attempt to fix the equipment or accept the perfectly reasonable warnings? Nope--they took the easy route. Sue in England. The doctor's legal costs have now reached almost 400,000 pounds, and climbing. But I'm sure that's all great comfort to the twenty kidney patients who have developed a deadly condition from it, as well as the families of the five who have died from the same treatment.

Needless to say, the doctor will not be making any speeches about his area of medical expertise in England until the law is changed.

LawHawkSF said...

NOT SO BREAKING NEWS: Dear Khalid bin Mahfouz died on August 18, shortly after his lawsuit died its final death here in America.

The British legal community (with the American legal community soon to follow) has created a special subset of libel tourism for the bin Mahfouz type of lawsuit. Since it is specifically designed to protect Muslim terrorism and hide the truth behind Koranic fundamentalism, they have dubbed it "Islamic lawfare." Unlike the individual and specific tactics used in the other examples we've mentioned, Islamic lawfare is part of a grand strategy to suppress all criticism of the religion of peace worldwide.

Libertarian Advocate said...

LawHawk:

Great piece. Encouraging to see signs that some semblance of sanity is beginning to clear the endemic brainfog that has so long afflicted our cousins across the pond.

LawHawkSF said...

Libertarian Advocate: Many thanks. The English system has many good points, including not awarding multi-million pound damages to people too stupid to know you don't put a cup of hot coffee between your legs and drive away with the lid off. And they don't allow juries to consider the speeches of lawyers channeling dead babies to drive up punitive damages in frivolous medical malpractice cases while cheating on their cancer-stricken wives (philanderer John Edwards). But their libel laws were a truly huge hole in an otherwise very sensible system.

HamiltonsGhost said...

Lawhawk--Does that mean that the founders of the Islamic college in Berkeley can't sue for defamation when the opposition to the college calls it nothing but a madrassah for training future sharia despots?

LawHawkSF said...

HamiltonsGhost: As we legal beagles say, "anybody can sue--winning is the trick." Even in goofball California, it would be unlikely that any judge would let such a case get past the preliminary stages, and nearly impossible to find a jury that would award damages even if the judge did allow the case to go forward. Unlike certain districts in Michigan, our Muslim radicals haven't yet gained enough power to intimidate public officials into imposing crypto-sharia law for special districts.

LawHawkSF said...

NOTE: Apropos of this column, and while many of us were watching in amused horror as Obama again made a fool of himself in Copenhagen, a somewhat positive development was happening at the UN. Although the Muslim lobby still got its way on "defaming religion," support for such measures was falling off rather substantially at the uber-tolerant UN. See: Support for Religious 'Defamation' Measures Continues to Erode.

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