On Libel And The Law, U.S. And U.K. Go Separate Ways | KERA News

On Libel And The Law, U.S. And U.K. Go Separate Ways

Mar 21, 2015
Originally published on March 27, 2015 3:49 pm

This Sunday, HBO is airing the documentary Going Clear, about the Church of Scientology, to strong reviews. The nonfiction book on which the film is based was short-listed for the National Book Award.

Yet there have been serious challenges to releasing the film and the book in the U.K. That's because Britain does not have the same free speech protections as the United States.

As with many other works of investigative journalism, publishing Going Clear in the U.K. could expose the authors to a much more serious risk of lawsuits than they face in the U.S.

Given how closely the U.S. and Britain align on many topics, the degree to which they differ on the issue of free speech is striking.

Rachel Ehrenfeld never set out to become the face of this issue.

"I just set out to write the truth, to expose those who funded terrorism," she says.

Ehrenfeld runs a think tank in New York called the American Center for Democracy. In 2003, she wrote a book called Funding Evil: How Terrorism is Financed, and How to Stop It.

The book accused a wealthy Saudi businessman of funding al-Qaida. The businessman, Khalid bin Mahfouz, sued Ehrenfeld in a British court.

"I did not live in England, I do not live in England, the book was not published there, so why not come and sue me in the United States?" she asks.

The reason is simple.

"English laws are much more favorable for someone looking to protect their reputation," says Jenny Afia, a lawyer in London who often represents people making libel and privacy claims.

Ehrenfeld's case was an example of "libel tourism," where someone brings a libel claim in a country where he is most likely to win. Often, that country is Great Britain.

"Crooks and brigands from around the world come here to launder their reputations, where they couldn't get exculpation in either their home country or indeed in the United States of America," says Mark Stephens, a London lawyer who often represents media companies in these cases.

In American courts, the burden of proof rests with the person who brings a claim of libel. In British courts, the author or journalist has the burden of proof, and typically loses.

"So you've got the rich and powerful shutting down and chilling speech which is critical of them," says Stephens.

Afia disagrees with that characterization. Journalists "are writing about the wealthy and the powerful, so those are the people who are going to be the victim to more false claims, and they're the people whose families will have their privacy invaded," she says.

U.S. Fights Back With 'Rachel's Law'

When author Rachel Ehrenfeld was sued in England, she didn't show up, and the court issued a default judgment against her, "that I would destroy the book, in addition to the fine" of about $250,000.

Typically, a U.S. court would enforce that ruling. But in this case, something extraordinary happened.

The New York Legislature took up Ehrenfeld's cause and passed a bill called the Libel Terrorism Protection Act. Many referred to it as "Rachel's Law."

Then, the U.S. Congress acted on it. Rep. Steve Cohen, D-Tenn., spoke on the House floor about the bill, known at the federal level as the "Speech Act."

"While we generally share a proud common law legal tradition with the United Kingdom," Cohen said, "it is also true that the United Kingdom has laws that disfavor speech critical of public officials, contrary to our own constitutional tradition."

The bill passed the House and the Senate unanimously, and President Obama signed it into law in 2010. It prevents U.S. courts from enforcing British libel rulings.

"We were quite shocked," says Afia, "because it was sort of raised as a national threat to U.S. constitutional issues, which as an ally was quite shocking to hear."

She thinks British laws strike the appropriate balance between privacy and freedom of speech.

So while Congress has provided a shield to American writers in the U.S., the threat of lawsuits today remains real for many others.

"We help media outlets from places like Zambia or Nigeria, exiled media that have fled their own countries because of repressive regimes and circumstances," says Peter Noorlander of the Media Legal Defense Initiative, a global nonprofit organization based in London. "They come to the U.K. and other places in Europe, and then they get pursued here for libel cases."

Revamped Rules Still Onerous For Defendant

In 2013, the U.K. responded to this outcry by changing the laws, eliminating some of the worst potential for abuses.

Under the new rules, libel tourism is less common. It is no longer as easy for people with little U.K. presence to bring these lawsuits in British courts. The law now says someone making a libel claim must demonstrate that a defamatory statement will cause "serious harm."

But these changes are not enough to persuade many to plunge back into these waters.

Cambridge University Press last year said it would not release a book about Russian President Vladimir Putin in the U.K. for fear of lawsuits.

"Even if the Press was ultimately successful in defending such a lawsuit, the disruption and expense would be more than we could afford," the publisher wrote in a letter to the author, Karen Dawisha.

And although the Church of Scientology is easy to spot in London, the book and documentary about the church, Going Clear, are far less so.

Copyright 2017 NPR. To see more, visit http://www.npr.org/.

SCOTT SIMON, HOST:

The United States and the United Kingdom stand shoulder-to-shoulder on most issues. Yet, when it comes to free speech, the two countries have some differences. Britain does not have the same protections as the U.S., so best-sellers in America are sometimes never released in the UK. This issue has driven a wedge between the two countries, as NPR's Ari Shapiro reports from London.

ARI SHAPIRO, BYLINE: Libel tourism is when people bring a court case in a country of their choice where they are most likely to win. Rachel Ehrenfeld never set out to become the face of this issue.

RACHEL EHRENFELD: No, I didn't set out to do it. I was - I just sent out to write the truth, to expose those who funded terrorism.

SHAPIRO: Ehrenfeld runs a think tank called the American Center for Democracy. In 2003, she wrote a book called "Funding Evil: How Terrorism Is Financed And How To Stop It." She accused a wealthy Saudi businessman of funding al-Qaida, and the businessman sued her for libel in a British court.

EHRENFELD: I did not live England. I do not live in England. The book was not published there, so why not come and sue me in the United States, right?

SHAPIRO: The reason is simple.

JENNY AFIA: English laws are much more favorable for someone looking to protect their reputation.

SHAPIRO: Jenny Afia is an attorney who often represents people who say they've been libeled. Free-speech lawyers agree with her assessment, though they spin the situation differently. Mark Stephens represents a lot of media companies in the UK.

MARK STEPHENS: Crooks and brigands from around the world come here to launder their reputations where they couldn't get exculpation in either their home country or indeed in the United States of America.

SHAPIRO: In U.S. courts, the burden of proof rests with the person who says he has been libeled. In British courts, the author or journalist has the burden of proof, and typically loses, says Stephens.

STEPHENS: So you've got the rich and powerful shutting down and chilling speech which is critical of them.

SHAPIRO: When Rachel Ehrenfeld was sued in England, she didn't show, up and the court issued a default judgment against her.

EHRENFELD: The court ordered that I would destroy the book in addition to the fine.

SHAPIRO: The fine was around a quarter million dollars. Typically, a U.S. court would enforce that ruling. But in this case, something extraordinary happened. The New York Legislature took up the cause, and then the U.S. Congress acted on it. Tennessee Congressman Steve Cohen spoke on the House floor about the bill known as the Speech Act.

(SOUNDBITE OF ARCHIVED RECORDING)

CONGRESSMAN STEVE COHEN: While we generally share a proud common law legal tradition with the United Kingdom, it is also true the United Kingdom has laws that disfavor speech critical of public officials and public figures, contrary to our own constitutional tradition.

SHAPIRO: The bill passed the House and Senate unanimously, and President Obama signed it into law in 2010. It prevents U.S. courts from enforcing British libel rulings. Privacy lawyer Jenny Afia in London couldn't believe it.

AFIA: We were quite shocked because it was sort of raised as a national threat to U.S. constitutional issues, which as an ally was quite shocking to hear.

SHAPIRO: She thinks British laws strike the right balance. So while Congress has provided a shield to American writers in the U.S., for many others, the threat of lawsuits remains real. Peter Noorlander runs the Media Legal Defense Initiative, a global nonprofit organization based in London.

PETER NOORLANDER: We help media outlets from places like Zambia or Nigeria, exiled media that have fled their own countries because of the repressive regimes and circumstances. And they come to UK and other places in Europe and then they get pursued here for libel cases.

SHAPIRO: The UK recently changed its libel laws, eliminating some of the worst potential for abuses. But the changes are not enough to persuade many to plunge back into these waters. Cambridge University Press last year said it would not release a book about Russian President Vladimir Putin in the UK for fear of lawsuits. The publisher wrote a letter to the book's author saying even if the Press was ultimately successful in defending such a lawsuit, the disruption and expense would be more than we could afford. Ari Shapiro, NPR News, London. Transcript provided by NPR, Copyright NPR.