Libel tourism is a term, first coined by

Geoffrey Robertson Geoffrey Ronald Robertson (born 30 September 1946) is a human rights barrister, academic, author and broadcaster. He holds dual Australian and British citizenship.

, to describe

forum shopping Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so h ...

for

libel Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...

suits. It particularly refers to the practice of pursuing a case in

England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...

, in preference to other jurisdictions, such as the United States, which provide more extensive defenses for those accused of making derogatory statements. A critic of

English defamation law Modern libel and slander laws in many countries are originally descended from English defamation law. The history of defamation law in England is somewhat obscure; civil actions for damages seem to have been relatively frequent as far back as t ...

, journalist

Geoffrey Wheatcroft Geoffrey Albert Wheatcroft (born 23 December 1945) is a British journalist, author, and historian. Early life and education Wheatcroft is the son of Stephen Frederick Wheatcroft (1921–2016), OBE, and his first wife, Joyce (née Reed). He w ...

attributes the practice to the introduction of

no win no fee A contingent fee (also known as a contingency fee in the United States or a conditional fee in England and Wales) is any fee for services provided where the fee is payable only if there is a favourable result. Although such a fee may be used in many ...

agreements, the presumption that derogatory statements are false, the difficulty of establishing

fair comment Fair comment is a legal term for a common law defense in defamation cases (libel or slander). It is referred to as honest comment in some countries. United States In the United States, the traditional privilege of "fair comment" is seen as a prot ...

and "the caprice of juries and the malice of judges." Wheatcroft contrasts this with United States law since the ''

New York Times Co. v. Sullivan ''New York Times Co. v. Sullivan'', 376 U.S. 254 (1964), was a landmark U.S. Supreme Court decision ruling that the First Amendment to the U.S. Constitution's freedom of speech protections limit the ability of American public officials to sue for ...

'' 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 Irish may refer to: Common meanings * Someone or something of, from, or related to: ** Ireland, an island situated off the north-western coast of continental Europe ***Éire, Irish language name for the isle ** Northern Ireland, a constituent unit ...

– Saudi businessman

Khalid bin Mahfouz Khalid bin Mahfouz ( ar, خالد بن محفوظ; December 26, 1949 – August 16, 2009) was a Saudi Arabian billionaire, banker, businessman, investor and former chairman of the National Commercial Bank (NCB). Khalid is the son of Salem Bin Ma ...

, 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. Mahfouz also took legal action in Belgium, France and Switzerland against those repeating the accusations. George W. Bush advisor

Richard Perle Richard Norman Perle (born September 16, 1941) is an American political advisor who served as the Assistant Secretary of Defense for Global Strategic Affairs under President Ronald Reagan. He began his political career as a senior staff member to S ...

threatened to sue investigative reporter

Seymour Hersh Seymour Myron "Sy" Hersh (born April 8, 1937) is an American Investigative journalism, investigative journalist and political writer. Hersh first gained recognition in 1969 for exposing the My Lai Massacre and its cover-up during the Vietnam Wa ...

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 In the philosophy of language and linguistics, speech act is something expressed by an individual that not only presents information but performs an action as well. For example, the phrase "I would like the kimchi; could you please pass it to me?" ...

unanimously passed the US Congress, which makes foreign defamation judgments

unenforceable An unenforceable contract or transaction is one that is valid but one the court will not enforce. Unenforceable is usually used in contradiction to void (or ''void ab initio'') and voidable. If the parties perform the agreement, it will be valid, ...

in US courts if they do not meet US free speech standards. In England and Wales, the

Defamation Act 2013 The Defamation Act 2013 (c 26) is an Act of the Parliament of the United Kingdom, which reformed English defamation law on issues of the right to freedom of expression and the protection of reputation. It also comprised a response to perception ...

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 The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...

gave Boris Berezovsky and

Nikolai Glushkov Nikolay Alekseevich Glushkov (russian: Николай Алексеевич Глушков; 24 December 1949 – 12 March 2018) was a Russian businessman who was the deputy director of Aeroflot and a finance manager for AvtoVAZ who died in ...

permission to sue ''

Forbes ''Forbes'' () is an American business magazine owned by Integrated Whale Media Investments and the Forbes family. Published eight times a year, it features articles on finance, industry, investing, and marketing topics. ''Forbes'' also re ...

'' for libel in the English courts. In 2003 the case was settled when ''Forbes'' offered a partial retraction. The issues relating to jurisdiction of the English courts in such actions were appealed to the

, at that time the highest court in England and Wales, making this the key test case on libel tourism.

The Ehrenfeld case

Khalid bin Mahfouz and two members of his family sued

Rachel Ehrenfeld Rachel Ehrenfeld is an expert on terrorism and corruption-related topics. These include terror financing, economic warfare, and narcoterrorism. She has lectured on these issues in many countries, and has advised banking communities, law enforcemen ...

, an Israeli-born writer and United States citizen over her 2003 book on

terrorist financing Terrorism financing is the provision of funds or providing financial support to individual terrorists or non-state actors. Most countries have implemented measures to counter terrorism financing (CTF) often as part of their money laundering l ...

, ''

Funding Evil ''Funding Evil: How Terrorism is Financed and How to Stop It'' is a book written by counterterrorism researcher Dr. Rachel Ehrenfeld, director of the American Center for Democracy and the Economic Warfare Institute. It was published by Bonus Bo ...

'', which asserted that Mahfouz and his family provided financial support to Islamic terrorist groups. The book was not published in Britain, although 23 copies of her book had been purchased online through web sites registered in the UK, 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. Instead, she countersued in the U.S. 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. Eady has been internationally criticized 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."

Laws addressing libel tourism

England and Wales

On January 1st, 2014 the

came into force In law, coming into force or entry into force (also called commencement) is the process by which legislation, regulations, treaties and other legal instruments come to have legal force and effect. The term is closely related to the date of this t ...

, requiring plaintiffs who bring actions in the courts of

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.

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

which passed unanimously in both the

House of Representatives House of Representatives is the name of legislative bodies in many countries and sub-national entitles. In many countries, the House of Representatives is the lower house of a bicameral legislature, with the corresponding upper house often c ...

and the

Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

before being signed by US President

Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party, Obama was the first African-American president of the U ...

on August 10, 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. The court noted, however, that if the law were to change, Ehrenfeld could go back to court. On January 13, 2008, two members of the

New York State Legislature The New York State Legislature consists of the two houses that act as the state legislature of the U.S. state of New York: The New York State Senate and the New York State Assembly. The Constitution of New York does not designate an official ...

, Assemblyman Rory I. Lancman (D-Queens) and

Senator A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

Dean Skelos Dean George Skelos (born February 16, 1948) is an American former politician from Long Island, New York. A Republican, Skelos served in the New York State Assembly and later represented the Ninth District in the New York State Senate from 1985 t ...

(R-LI), introduced a "Libel Tourism Protection Act" in both legislative houses (bills no. A09652 and S 6676-B) 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. and on April 29, 2008, Gov. Paterson signed the bill into law. The Libel Tourism 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."

California

In October 2009, California Governor Arnold Schwarzenegger signed into law protections against libel tourism (California's Libel Tourism Act) that took effect January 1, 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. The law received significant bi-partisan support.

Illinois

In August 2008, Illinois enacted a libel tourism law that is similar to the statute passed in New York.

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

THE LIBEL TOURIST
A short documentary detailing one such case involving bin Mahfouz {{DEFAULTSORT:Libel Tourism Conflict of laws Defamation English defamation law Pejorative terms Types of tourism Ethically disputed judicial practices