We don’t normally pay much attention to libel laws affecting newspaper reporters because U.S. law and the courts are generally protective of the rights of journalists to responsibly cover the news. But other countries are not so protective, so I applaud State Senate Judiciary Committee Chairwoman Ellen Corbett (D-San Leandro) who has introduced legislation to combat libel tourism. Sponsored by the California Newspaper Publishers Association, her SB 320 would prohibit state courts from recognizing a defamation judgment obtained in a foreign jurisdiction, unless the court determines the defamation law applied in the case provided at least as much protection for freedom of expression as offered by the First Amendment and California Constitution.
Senators Arlen Specter and Joseph Lieberman have introduced similar federal legislation. S. 449 would prohibit federal courts from recognizing libel judgments deemed inconsistent with the First Amendment
Corbett’s 10th Senate District includes much of Alameda County, including Pleasanton and cities west to the Bay. Her bill is intended to stop the increasingly popular practice of suing U.S. journalists and authors in libel-friendly foreign courts, and then attempting to enforce the judgment (usually obtained by default) in a California court. British libel law, for example, presumes a statement is false and places the burden of truth on the defendant. It has become a jurisdictional Mecca for the rich and famous. On the other hand, U.S. law, and especially California, places difficult burdens on plaintiffs to prove falsity and defamatory content, and requires them to clear many other tall hurdles intended to protect free expression under the First Amendment.
The New York legislature enacted protective legislation last year after Rachel Ehrenfeld – an Israeli-born writer living in the United States – was sued by billionaire Saudi entrepreneur Khalid Salim bin Mahfouz in London for her book, Funding Evil, which accused Bin Mahfouz of financing Islamic terrorist groups. Ehrenfeld’s book was not published in London, but Bin Mahfouz was able to establish jurisdiction because 23 copies of the book were purchased there online. Ehrenfeld determined not to submit to the court’s jurisdiction and Bin Mahfouz was awarded a $225,000 default judgment.
While Bin Mahfouz has not attempted to enforce the judgment in the U.S., Ehrenfeld contends it has had an intense chilling impact on writing about terrorism.
"It has not only affected me," Ehrenfeld said in an interview. "Publishers are also afraid to mention any Saudi financier of terrorism, even if the evidence is there. The intimidation factor has worked very well to silence the media."
The Pleasanton Weekly is a member of the CNPA and we join with that organization in hoping that Corbett’s bill will limit the legal exposure of California writers, diminish the chilling impact of libel tourism on aggressive reporting about important international issues, and ultimately, pressure foreign jurisdictions like Britain to change its laws to place greater protections on free speech.