Andrew C. McCarthy on ‘Libel Tourism’

by Kenneth Anderson

I have blogged in the past about the growing phenomenon of ‘libel tourism’ and its chilling effects upon free expression, as well as some (really, considering the free expression issues under threat, quite modest) New York state and US federal legislative efforts to deal with it.  It amounts to using English courts and their views on libel, together with the interconnectedness of the English-language publishing market, especially the academic market, to allow rich people – in particular, one Saudi billionaire with Irish citizenship, Sheikh Khalid bin Mahfouz – to squelch what, in the United States, would be free expression of an entirely unremarkable kind.  Andrew McCarthy has a welcome essay in the September 2008 Commentary magazine (sub req’d) on the phenomenon and efforts to roll it back.  One thing I hadn’t realized was the extent to which bin Mahfouz has been successful – according McCarthy, citing the late Alms for Jihad author Robert O. Collins, in “three dozen cases in which legal action has been either threatened or carried through to trial, bin Majfouz has succeeded in securing apologies and cash damages.” (emphasis added)  I thought I knew something about the subject, but I had no idea it was so many.  (Update:  Note Ruth Wedgwood’s comment.  Welcome, Ruth!)

One Response

  1. Readers may be interested in the recent Concluding Observations of the United Nations Human Rights Committee, issued in the July 2008 review of the United Kingdom under the International Covenant on Civil and Political Rights.

    The Committee recommendation for a change in British libel laws was covered in the Guardian newspaper on August 14, and the website of the British NGO called “Article 19”.

    In observation 25 of its concluding observations, the Committee recommends as follows:

    “25. 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, as well as limiting the requirement that defendants reimburse a plaintiff’s lawyers fees and costs regardless of scale, including Conditional Fee Agreements and so-called “success fees”, especially insofar as these may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (e.g., requiring a plaintiff to makesome preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered.”

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