Should the U.S. Enforce Stricter Libel Laws?

Angelo Franco

 

In 2003, American academic Rachel Ehrenfeld published Funding Evil, a book about terrorism financing. In it, she stated that Saudi businessman Khalid Salim bin Mahfouz and his family provide financial support to Islamic terrorist groups. Bin Mahfouz then brought a defamation lawsuit in the United Kingdom, even though Ehrenfeld did not live in the UK, had never lived in the UK, and the book had not even been published in the UK.

 

The case brought to light has been coined as “libel tourism,” in which wealthy figures file defamation lawsuits in countries unfriendly to libel, like the UK, because their defamation laws are much more strict than in other Western nations, especially the US, even though the basic definition of defamation is essentially the same in the UK as in the US.

 

In the bin Mahfouz case, the Saudi businessman claimed that Ehrenfeld’s book had harmed his reputation, and filed his suit in the UK because he said that enough people had read the book in that country — an estimated 23 copies had been sold online in the UK. Ehrenfeld, an Israel-born US citizen based in New York, shunned the lawsuit as a refusal to acknowledge the jurisdiction of the UK in this case; and so the British court, seeing that the defense did not show up, defaulted to rule for the claimant and ordered Ehrenfeld to pay approximately $250,000 in fees, apologize to bin Mahfouz, and destroy all remaining copies of the libelous book. None of these things have happened yet. 

 

 

The Ehrenfeld case is significant because Ehrenfeld is an American citizen being held liable for libel in a foreign territory. The case and the subsequent ruling against Ehrenfeld prompted immediate outrage in the US. Ehrenfeld countersued bin Mahfouz in NY to ensure that the British judgment would not be enforced, and the state inevitably found that it had no jurisdiction over the Saudi citizen in a lawsuit taking place in another sovereign nation, and so instead the NY legislation moved to enact laws to protect New Yorkers against defamation judgments in other countries, and passed what has been commonly known as the “Rachel Law,” in honor of the academic.

 

In the US, defamation is a tort claimed when a person is subjected to falsehoods that impugn and harm their character or reputation (in other countries it’s not a tort as it can carry criminal charges). The history of defamation laws in the US is long and storied, especially because the rights of free speech and free press—arguably the strongest in the world—often clash with the interests served by libel and slander laws, although this was not always the case.

 

Until the 1960s, libel was considered as wholly unprotected speech, akin to obscenity or “fighting words,” as defined by a unanimous Supreme Court as recently as 1942 (defamation is inherently unprotected speech, but limitations now exist to avoid a chilling effect on a robust press). In early America, a person faced criminal penalties rather than civil ones if charged with libel, a system modeled after its English counterpart like much of the young criminal code of the colonies. And if someone was charged with libel, even the concept of truth itself could not be used as a defense. In other words, it didn’t matter if what was published was true; all that mattered is whether the claimant’s good name had indeed been tainted. This is a disparity to the romantic ideas that colonial America was a bastion of free thought and speech, when in reality, the concept of free speech itself was so nascent that people could not fully conceive it.

 

 

This was by design, of course. Weakly defined defamation laws had been used to put people in prison for criticizing the church or a monarch, and the US and England were no exception. In colonial America, politicians and other wielders of power could easily sue for seditious libel, which helped ensure that people were not stepping out of line. The Sedition Act of 1798 is perhaps one of the earliest tests of the newly granted freedoms of speech and press in the United States; although in a testament to the new American citizens’ desire for freedom, this law proved to be enormously unpopular and President John Adams, who signed the act into law, lost reelection, and the law eventually expired a couple of years later.

 

It wasn’t until the celebrated landmark case, New York Times Co. v. Sullivan, of 1964 that completely redefined libel laws nationally. The case came up against the backdrop of the civil rights movement, when in 1960 the Times published an editorial ad sponsored by the Committee to Defend Martin Luther King Jr., which included details of brutality and abuses that Black students suffered at the hands of the police, particularly in Montgomery, Alabama. L.B. Sullivan, Montgomery’s police commissioner, sued the Times for defamation and demanded a retraction even though he was not mentioned by name. The Times editorial did contain three factual errors, and Sullivan succeeded in his lawsuit in the local courts, where an all-white jury found in his favor and awarded him $500,000, a ruling and award that the appellate court of the state of Alabama upheld. The Times then appealed to the Supreme Court. For the first time, the Court actually decided that libel laws cannot compete with the freedoms of speech and press, and reversed the Alabama courts’ rulings based on this concept.

 

Importantly, the Supreme Court also said that in a free debate, factual error are bound to occur, and punishing critics who may make accidental factual errors would go against the tenets of public interest and chill free speech. In this way, the Court also established what has become known as the “actual malice” rule; this is what makes US libel rules unique and incredibly lenient. The Times v. Sullivan ruling did two important things: It placed the burden of proof on the public figure suing for defamation, and they must prove that the allegedly libelous text was written with actual malice, which the Court defined as being published with knowledge that the statement was false or “with reckless disregard of whether it was false or not.” (In subsequent rulings in the late 1960s and early 70s, the Court also established different standards of “actual malice” and burden of proof for public figures and private persons; notably, a private individual does not have to prove actual malice to win damages for libel).

 

 

Prior to the Times v. Sullivan ruling, a person accused of defamation could be liable even if they expressed a view as an opinion; and in many states, the allegedly libelous text was already considered false until proven otherwise. In other words, it placed the burden of proof on the defendant, and the accused had to prove that the statements made were indeed true. This is the way libel laws still work in the UK. If a person brings libel charges against someone else, it is up to the accused to prove that the statements written were inherently true, regardless of whether or not those statements actually caused any harm to the accuser’s reputation, and it’s one of the reasons that the UK has become a hot destination for libel tourism.

 

The Ehrenfeld case is not unique in the UK. Kaupthing, an investment firm from Iceland, sued a Danish tabloid in London over critical remarks about the firm’s advice to wealthy clients about tax havens. Russian business tycoon Boris Berezovsky successfully sued Forbes Magazine, an American publication, in the UK over its assertion of Berezovsky’s allegedly inappropriate involvement with the Kremlin --  even though Berezovsky’s lived in Russia and the magazine’s article solely concerned Berezovsky’s rise to power and business dealings in Russia. Armand Hammer filed a lawsuit over the publication of a biography critical of him, but he only sued the UK publishers of the book in the UK; he did not sue the US publishers of the same book in the US.

 

Forbes was also the target of another libel suit from Prince Alwaleed bin Talal, who sued in the UK because he said the magazine had underquoted how rich he was (by about 9.5 billion dollars, he alleged), even though the prince lives in Saudi Arabia. This case raised some alarm because it came at the heels of the UK’s attempt to abate its defamation laws and deter libel tourism. The 2013 Defamation Act introduced a new defense of “honest opinion.” It now required that accusers show that their reputation had actually suffered serious harm (rather than just stating it did) and that England was indeed the best forum to take up their claim. In the case of bin Talal, Forbes did include him in its list of the wealthiest people on the planet; his grievance was that the magazine apparently did not place him high enough on the list. The Saudi prince’s grounds to file his case was that the magazine had accused him of manipulating his companies’ share prices to inflate his actual worth, a claim which the British Court itself dismissed. Prince bin Talal and Forbes magazine eventually settled out of court in 2015.

 

 

The apparent frivolity of the bin Talal case stands in stark contrast with the recently decided case between actor Johnny Depp and the British tabloid The Sun. Depp sued The Sun in the UK for defamation after the tabloid published a headline and an article describing him as a wife beater. The judge found that out of the 16 instances of domestic abuse that The Sun had described, 14 had indeed happened and so the description of “wife beater” was essentially true. The Court, in an unexpected turn of events, ruled for The Sun after practically deciding what specific occurrences counted as domestic abuse to gauge whether Depp qualified as a wife beater. 

 

It is exactly this wishy-washy approach that the UK still takes with defamation laws, even after it amended them in 2013, that makes it such a desirable destination for libel suits. Donald Trump himself has said that he wanted to strengthen defamation laws in the US and model them after the British ones, especially after the publication of the book, Fire and Fury. In his view, the First Amendment is too permissive, trumping on alleged falsehoods that don’t paint him in a good light — because in the US, the truth is an ironclad defense regardless of whether or not someone’s reputation suffered or not (within the ethical parameters of journalism and public interest, bien sur). And this is either widely ironic or foolishly shortsighted, because if defamation laws were strengthened, Trump himself would be the target of numerous defamation lawsuits for things said and written even before his presidency and, we imagine, for things that will be said and written after he leaves office.

 

Case in point, the potential defamation lawsuits that right-wing news organizations faced after the 2020 presidential election. True to form, conservative news organizations like Fox News, Newsmax, and OAN went on record to insinuate irregularities throughout the election prompted by the same baseless claims Trump put out.

 

When, on November 14, Rudy Giuliani tweeted that Dominion Voting Systems were a front for Smartmatic, right-wing news commentators were quick to run with that story, asserting that the Smartmatic system has a backdoor that allowed bad actors to mess with the election results in states like Michigan, Arizona, and Georgia. Smartmatic and Dominion, companies that provide voting and election services including voting booths and systems, are actually completely separate entities, and the Smartmatic system was not even used in the US elections; in fact, the company has not been used in the US since 2007 because of its founder’s Venezuelan roots, except once recently, when it was contracted to assist Los Angeles County run an election there.

 

 

Both companies threatened to sue and sent cease-and-desist letters, and defamation lawsuits are threats that even organizations as large as Fox News take seriously. Plus, a defamation lawsuit against smaller broadcasters like Newsmax and OAN would be a blow to their emerging popularity for right-wing propaganda and their potential to become the so-called “Trump TV” that appeals to his base. In light of only the potential of a lawsuit, both Fox News and Newsmax aired extraordinary segments practically debunking their own lies and walking back their claims about Smartmatic and Dominion. This was an attempt to ensure that they did their due diligence by literally stating they had reported false claims. Very recently, Dominion, a Canadian company and one of the largest manufactures of voting equipment in the US, did file a defamation lawsuit against Sydney Powell, one of Trump’s lawyers, seeking over $1 billion in damages. The company plans to add more defendants and file more lawsuits in the coming weeks, apparently not ruling out naming Trump as one of the perpetrators.

 

It is difficult to imagine that an organization like Newsmax would do well in a country like the UK without running afoul of defamation laws. Fox News itself aired in the UK from shortly after the 9/11 attacks until 2017 when British TV regulator Ofcom began investigating the conservative news channel for violating the country’s impartiality rule, although the official reason Fox News gave for ceasing transmission in the UK was low viewership.

 

And the UK is not unique when it comes to oppressive defamation laws, of course. Russia, China, and Vietnam can still bring criminal charges against a person accused of defamation. But so can liberal bastions like France, Germany, and Spain. In fact, a 2015 report found that more than half of the EU bloc had convicted a journalist of criminal defamation in the prior five years. To be sure, prison time is very rare in Western nations, although some may argue that’s likely because a country does not want to face international backlash from jailing members of its press.

 

This is what sets US defamation laws apart. After NY state passed the “Rachel Law” as a result of the Ehrenfeld ruling in Britain (which the state provocatively named “The Libel Terrorism Protection Act”), the law served as a model that eventually made its way to the federal government. In 2010 President Obama signed into law the “Speech Act,” which makes foreign defamation rulings virtually unenforceable in the US, unless the foreign country has free speech protections that parallel those of the US (which is practically never the case). This was an astonishing move from the Unites States, which not only managed to snub one of its greatest Western allies, but it also made already forgiving libel and slander laws even more lenient, aiming to continue the extraordinary legacy of protecting First Amendment rights set by the Times v. Sullivan case almost six decades ago.

 

Author Bio:

 

Angelo Franco is Highbrow Magazine’s chief features writer.

 

For Highbrow Magazine

 

Image Sources:

 

--Harald Krichel (Wikimedia, Creative Commons)

--Multiequator

--Wpkbwc (Wikimedia, Creative Commons)

--gdcgraphics (Wikipedia, Creative Commons)

--Wikimedia (Creative Commons)

--Nick Youngson (Blue Diamond Gallery, Creative Commons)

 

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