London is considered the “libel tourism” capital of the world because of weak protections of free speech under English libel law. As a consequence, rich, powerful and famous individuals from all over the world have filed hundreds of lawsuits in London against journalists, publishers, scientists and others.
Even though neither plaintiff nor defendant may be from the United Kingdom, judges in London have interpreted jurisdiction broadly – accepting cases in which only small numbers of people in the U.K. read the allegedly offending material in print or over the Internet. English libel law also offers broader protections of a person’s reputation, thereby curtailing what many regard as legitimate and robust free speech on matters of public importance.
The burden of proof, moreover, is shifted from the accuser to the accused – a reversal of normal standards of justice, in which the defendant is entitled to the presumption of innocence until proven guilty.
Also, because litigation costs are vastly higher in England than in the rest of the European Union, the playing field is tilted heavily in favor of the rich. Experts say that merely the threat of a lawsuit is often enough to get news organizations to issue a retraction and a public apology. Other times, defendants have no means to defend themselves and, consequently, end up losing the cases without a fight.
According to the report “Libel Tourism: Silencing the Free Press Through Transnational Legal Threats,” published by the Washington, D.C.-based Center for International Media Assistance, the U.K. laws are ideal for “oligarchs, organized crime figures and wealthy businessmen to punish authors and journalists, regardless of the merit of their cases.”
The growth in defamation claims has sparked a public campaign to change the English law in a way that offers greater protections for speech and curbs the practice of “libel tourism” by foreign plaintiffs.
In January, the campaign got support from British Deputy Prime Minister Nick Clegg, who described the existing law as an “international embarrassment” that is having a “chilling effect on scientific debate and investigative journalism.”
“It is simply not right when academics and journalists are effectively bullied into silence by the prospect of costly legal battles with wealthy individuals and big businesses,” Clegg said. “Nor should foreign claimants be able to exploit these laws, bringing cases against foreign defendants here to our courts – even if the connection with England is tenuous. It is a farce – and an international embarrassment – that the American Congress has felt it necessary to legislate to protect their citizens from our libel laws.”
The British government’s draft legislation is expected in March.
The following are some of the most vivid recent libel cases filed or heard in U.K. courts. They were taken from news reports and the 2009 report “Free Speech Is Not For Sale” by English PEN, a London-based charity which defends the rights of writers, and the Index on Censorship:
Mohammed Hussein al-Amoudi
The Saudi princess (2010)
Plaintiff: Mohammed Hussein al- Amoudi, businessman of Ethiopian descent, Saudi Arabia;
Defendant: Elias Kifle, blogger, USA;
Outcome: Pending.
Elias Kifle, an Ethiopian living in the United States, published a series of articles about Sarah al-Amoudi, the claimant’s 23-year-old daughter who resides in London.
The articles in question, which basically retold articles published in the U.K.’s Daily Mail, suggested that al-Amoudi had been “married off at the age of 13 to an elderly and disabled senior member of the Saudi royal family as a gift.”
In addition, the articles mention al-Amoudi’s alleged financing of organizations linked to terrorist groups, and alleged involvement in the murder of his daughter’s supposed long-term lover in 2004.
The articles also suggested that al-Amoudi “has been hunting for his daughter and his (supposed) granddaughter across London in order to ensure their execution in Saudi Arabia by the way of flogging, stoning to death or otherwise.”
In response, Kifle has launched a legal fund to help fight the lawsuit.
Matthias Rath
Bad science (2007-08)
Plaintiff: Matthias Rath, vitamin pill manufacturer, South Africa;
Defendant: Ben Goldacre, journalist, U.K.; and the Guardian, U.K.;
Outcome: Case dropped.
Matthaias Rath, a vitamin pill manufacturer, had taken out full-page advertisements in South African publications denouncing AIDS drugs as ineffective, while simultaneously promoting his own supplements. Ben Goldacre, a Guardian columnist, raised concerns about these aggressive advertising strategies in articles in January and February 2007. Rath sued for libel.
Although Rath dropped the case a year later, the Guardian had by this time racked up legal costs of more than $750,000 with no guarantee that these would be recovered. While the Guardian was awarded initial costs of over more than $350,000, there can be little doubt that the case was brought by Rath in an attempt to prevent journalists questioning his business activities.
South African members of the Treatment Action Campaign, including traditional healers, march on May 26, 2005 in front of Cape Town’s High Court against Dr. Matthias Rath, a controversial doctor and AIDS researcher. (AFP)
Land grab (2007-08)
Plaintiff: Rinat Akhmetov, businessman, Ukraine;
Defendant: Kyiv Post, Ukraine;
Outcome: Out-of-court settlement
Rinat Akhmetov, Ukraine’s richest citizen with a fortune recently estimated at nearly $24 billion, sued the Kyiv Post (then under different ownership with different editorial leadership) in London over allegations contained in an article published in October 2007. The opinion article alleged that Akhmetov had acted unlawfully in real estate transactions. While the newspaper had only 100 subscribers in the U.K. at the time, the paper apologized as part of an undisclosed out-of-court settlement in February 2008.
Obozrevatel loses (2007-08)
Plaintiff: Rinat Akhmetov, businessman, Ukraine;
Defendant: Obozrevatel, two of its editors and one of its journalists, Ukraine;
Outcome: Default judgment.
Obozrevatel is a Ukraine-based Internet news site that publishes in Russian, with only a few dozen readers in Britain. This case was brought by Akhmetov in relation to a series of four articles about Akhmetov’s youth, published in January and February of 2007. A default judgment in Akhmetov’s favor was obtained, along with damages of more than $75,000 and costs, in June 2008.
Al-Arabiya (2007)
Plaintiff: Sheikh Rashid Ghannouchi, Tunisia;
Defendant: Al Arabiya, Satellite News Channel, Dubai;
Outcome: Judgment awarded.
A satellite television network, Al Arabiya, based in Dubai and broadcasting in Arabic, was successfully sued in London by Tunisian Sheikh Rashid Ghannouchi, the leader of the exiled An Nahda party, over a news broadcast that linked him to al-Qaeda and suggested that he was among Islamic figures being targeted in Britain in the wake of the July 2005 bombings in London.
The importance of the case is that the program was broadcast in Arabic, but was available via satellite receivers in the U.K. jurisdiction. Ghannouchi was awarded more than $250,000 in November 2007.
Cambridge University issued a public apology and destroyed this book after a libel lawsuit.
Alms for Jihad (2007)
Plaintiff: Sheikh Khalid bin Mahfouz, businessman, Saudi Arabia;
Defendant: J Millard Burr and Robert O Collins, authors; Cambridge University Press, U.K.;
Outcome: Retraction and public apology received.
Khalid bin Mahfouz brought a libel claim in August 2007 against Cambridge University Press over “Alms for Jihad,” a book written by two Americans, J. Millard Burr and Robert O. Collins. The book examined how Islamic charities were used to channel money to Al Qaeda operations and linked Mahfouz to terrorism funding.
Although the authors disputed Mahfouz’s claims, Cambridge University Press decided to withdraw the book, rather than defend the action. Their intellectual property director, Kevin Taylor, told the Bookseller website that “it would not be a responsible use of our resources, nor in the interests of any of our scholarly authors, to attempt to defend a legal action [in this case].”
Cambridge University Press posted an apology on its website, calling the claims made in the book “manifestly false,” wrote to libraries around the world to request that they remove the book from their shelves and paid out unspecified damages and legal costs. Tellingly, neither Burr nor Collins agreed to put their names to the apology.
An Icelandic Chill (2006-2008)
Plaintiff: Kaupthing, Investment Bank, Iceland
Defendant: Ekstra Bladet, Denmark
Outcome: Retraction and public apology received.
The Danish tabloid Ekstra Bladet was sued in London by Kaupthing, an investment bank in Iceland, over articles it had published that criticised advice the company had given to wealthy clients about tax shelters.
Kaupthing, through its solicitors Schillings, successfully claimed U.K. jurisdiction because some of the critical articles had been posted on the paper’s website, and had been translated into English. It was also noted that the chairman of the bank, Sigurdur Einarsson, about whom some of the articles were written, was resident in London.
Ekstra Bladet initially refused to retract the articles, but was eventually forced to settle the case before it went to trial. The paper had to pay substantial damages to Kaupthing, cover Kaupthing’s reasonable legal expenses, and was forced to carry a formal apology on its website for a month.
Jameel (2006)
Plaintiff: Mohammed Yousef Jameel, businessman, Saudi Arabia;
Defendant: Dow Jones/Wall Street Journal Europe;
Outcome: Defendant prevails.
The Wall Street Journal reported on U.S. and Saudi government surveillance of the bank accounts of prominent Saudi citizens who were suspected of channelling funds to terror groups. On a supplementary, hyper-linked web page, Yousef Jameel was among those named as being monitored. He subsequently brought proceedings against the American publisher in London.
During the case, it transpired that only five people in the U.K. had downloaded the list of names, three of whom were associated with the claimant. Despite this, jurisdiction was accepted by the English courts, and a jury found that the article was defamatory of Jameel.
On final appeal to the House of Lords, it was held that the Court of Appeals had denied the Wall Street Journal the chance to show its article was in the public interest. Baroness Hale, in her judgment, said that serious journalism is to be encouraged.
Mende Naver’s book Slave became the subject of a libel lawsuit in London.
Slave (2005-08)
Plaintiff: Abdel Mahmoud Al Koronky, former diplomat, and his wife, Sudan;
Defendant: Little, Brown, publishers, U.K.;
Outcome: Case dismissed.
Mende Nazer published an account of her experiences in Khartoum and London, in which she described her life as a modern slave to a Sudanese businessman, Abdel Mahmoud Al Koronky, a former Sudanese diplomat, and his wife. The claimants, both residents of Sudan, brought proceedings for libel in London, denying that they had kept Nazer as a slave.
The court ordered the plaintiffs to provide more than $500,000 security for costs, to be paid into court before the case could continue. The case was stayed pending this payment, but the plaintiffs appealed the order, first in the Court of Appeals and then to the House of Lords. This process took more than two years.
Both appeals were unsuccessful, and the case was dismissed. The defendants were awarded costs, but these proved impossible to recover from the claimant.
Human Rights Watch (2005)
Plaintiff: Unnamed;
Defendant: Human Rights Watch, NGO, USA;
Outcome: Mediated settlement.
In the aftermath of the Rwandan genocide, Human Rights Watch produced an investigative report into the massacres, “Leave None to Tell the Story.” The report presented eyewitness testimony alongside Rwandan government documents and named numerous persons who played a role in the genocide.
In 2005, one of the men named in the report threatened a defamation suit against Human Rights Watch in the U.K., although only a handful of the reports were in circulation at that time and an extremely small number of people had even accessed the report online from the U.K.
Human Rights Watch reviewed the evidence behind its report, going to Rwanda to reconfirm facts and locate sources at great expense. At the time of the research of the report, the complainant, like many in the former government, had fled the country and his whereabouts were unknown. Human Rights Watch paid for mediation of the claim, despite the individual being under investigation for genocide by the Rwandan government.
The mediation resulted in Human Rights Watch clarifying certain details of the report, but not changing the substance of the main allegations.
Rachel’s Law (2004-08)
Plaintiff: Sheikh Khalid bin Mahfouz, businessman, Saudi Arabia;
Defendant: Rachel Ehrenfeld, journalist, USA;
Outcome: Judgment entered, but unenforced; case spurs U.S. law change.
Rachel Ehrenfeld is the author of “Funding Evil: How Terrorism Is Financed – And How To Stop It.” The book, published in 2003 in New York, argued that money from drug trafficking and wealthy Arab businessmen was funding terrorism. The book made several allegations about the Saudi billionaire Khalid bin Mahfouz, who also featured in the Alms for Jihad case.
Despite “Funding Evil” having been distributed overwhelmingly in the United States, the few copies sold in the U.K. jurisdiction allowed Mahfouz to claim reputational harm in the U.K.
Ehrenfeld refused to acknowledge the jurisdiction of the U.K. courts in this matter and took no steps to participate in the case. A U.K. judge then made a summary ruling that the allegations in her book were unsubstantiated. Judgment in default was granted in favour of Mahfouz and his two sons. Each was awarded more than $15,000 in damages and their legal fees.
Although Mahfouz did not seek to enforce the judgment, Ehrenfeld counter-sued Mahfouz in New York, seeking a declaration that to enforce the U.K. judgment would be “repugnant” to her First Amendment rights.
The New York Court of Appeals decided that it could not rule on the matter because Mahfouz (a Saudi citizen and resident) had not conducted business in the state of New York. This was a significant finding, given Mahfouz’s use of the English courts, despite Ehrenfeld’s almost non-existent connection to that jurisdiction.
This decision therefore left open the questions of whether the U.K. judgment could be enforced in the U.S., and whether writers had adequate protection against foreign libel judgments.
The decision provoked an outcry, and the New York State Assembly acted. In February 2008, New York state passed the Libel Terrorism Protection Act, nicknamed “Rachel’s Law.” This legislation declares foreign libel judgments unenforceable unless the foreign law grants the defendant the same First Amendment protections available in New York State. Similar protections came into place nationally with the Free Speech Protection Act of 2009, approved by Congress and signed into law last year by U.S. President Barack Obama.
Frequent flyer (1997-2003)
Plaintiffs: Boris Berezovsky and Nikolai Glouchkov, businessmen, Russia;
Defendants: Forbes Magazine, U.S.;
Outcome: Settlement reached.
The House of Lords allowed Russians Boris Berezovsky and Nikolai Glouchkov to sue the American Forbes magazine over an article concerned with their business activities in Russia, which contained numerous accusations. Around 780,000 copies of the magazine were sold in the United States, while only around 6,000 copies were accessed in print or via the Internet in the U.K.
PEN notes that English courts have certain tools available to them to combat libel tourism. These include refusing permission to serve court documents out of the jurisdiction as an abuse of process, if the claimant has only a minimal reputation to defend in this jurisdiction. The second weapon is that a claim may be dismissed if a defendant can demonstrate that another jurisdiction is more appropriate.
The trial judge initially ruled that Russia or the United States would be a more appropriate jurisdiction in which to hear the case, not least because Berezovsky’s reputation was primarily founded in Russia. In a landmark 3-2 majority decision, the House of Lords overruled on the grounds that Berezovsky’s daughter was in Cambridge and because of the frequent business trips he made to this jurisdiction. A majority of the Lords decreed that, in fact, he did have a reputation to defend in the U.K., and that a Russian judgment would not be sufficient to clear his reputation in this jurisdiction.
Forbes and Berezovsky settled in 2003 with a reading of a statement in the High Court, a retraction of the offending article and the publication of a correction.
Vladimir Matusevitch of Russia got sued for a letter to the editor.
Letter to the editor (1984-97)
Plaintiff: Vladimir Telnikoff, journalist, Russia;
Defendant: Vladimir Matusevitch, journalist, U.S.;
Outcome: Judgment won, but unenforced.
A spat between two Russians in 1984 sparked a decade-long libel case, which brought into clear focus the differences between English and American libel law. Vladimir Telnikoff, a journalist, complained in an article in the Daily Telegraph that the BBC’s Russian Service employed too many Russian-speaking ethnic minorities.
Another journalist, Vladimir Matusevitch, a U.S. citizen, wrote a letter to the editor in response. Telnikoff sued, claiming that Matusevitch had imputed “racialist views” to him, comments which he said were libelous.
Matusevitch refused to apologize for his letter, claiming he was making “comment” and not stating fact. Although this argument initially prevailed in the High Court in 1989, the case was eventually decided in Telnikoff’s favor in 1991, following an appeal to the House of Lords.
It was found that what had to be considered was Matusevitch’s letter in itself, rather than in the context of the original article by Telnikoff. It was found that the letter to the editor conveyed the “fact” that Telnikoff was a racialist. Damages of more than $360,000 were awarded.
Matusevitch then moved to Maryland, in the United States, where Telnikoff sought to enforce his U.K. judgment. The Maryland Court of Appeals, in a 6-1 majority judgment, found that recognition of the English judgment would be “repugnant to the public policy of Maryland.”
The court said that “American and Maryland history reflects a public policy in favor of a much broader and more protective freedom of the press than ever provided for under English law,” and that “the importance of [the] free flow of ideas and opinions on matters of public interest” meant that Maryland could not enforce the English libel judgment.
Kyiv Post, again (2010)
Plaintiff: Dmytro Firtash, Ukraine;
Defendant: Kyiv Post, Ukraine;
Outcome: Pending.
Ukrainian billionaire Dmytro Firtash filed a libel lawsuit in London last fall, alleging that a July 2 Kyiv Post story made it appear that he was “engaging in massive criminal corruption.” The story, according to the complaint, damaged Firtash’s “personal and professional reputation” in the United Kingdom.
The Kyiv Post disputes this and stands by the story.
Source: PEN report: “Free Speech Is Not For Sale”; Kyiv Post research
