Anti-free speech? UK courts can help

Comment is free

Here’s another piece I have just had published at Comment is Free…  Later, I will publish a selection of comments I’ve received, and try and respond as best I can.

After the article was published, I and the Guardian were contacted by lawyers for Khalid Bin Mafouz.  I had incorrectly stated that the Sheikh sought to have damages awarded in the USA, but this was not correct.  It was the fear that he would seek damages, which promoted US legislators to action.  You can see the correction made, below.

While various campaigning groups spring up left, right and centre with the aim of reforming Britain’s mangled political system, it seems that our friends abroad have already grown tired of waiting for us to get it right. It is time, they have decided, to take matters into their own hands.

On Monday, the US House of Representatives passed a bill designed to protect American citizens (and others within its jurisdiction) from the effect of libel judgments handed down by the British high court. The US Senate will now consider the legislation.

The bill erects a legal barricade for Americans against the growing problem of “libel tourism”, the phenomenon whereby foreigners sue each other in British courts, sometimes on the most spurious of grounds.

When the concept of a “gentleman’s good reputation”, devised in the 18th century to avoid the problem of duels, is applied uncritically in the globalised and connected 21st century, Her Majesty’s judges are cornered into handing down rulings which amaze her subjects.

We’ve learned that a Ukrainian businessman can sue a Ukrainian news organisation in the British courts, over an article written in Ukranian on a website, all because that site may be viewed in the UK. We find that an Icelandic investment bank can use all the resources of the British system to sue a Danish newspaper over articles published in Denmark.

With laws stacked overwhelmingly in favour of the claimant, the UK has become the jurisdiction of choice for anyone wishing to silence or suppress a journalist working anywhere in the world. We have unwittingly allowed our courts to become an international libel tribunal, and free speech is suffering as a result.

But no longer for Americans. Ever the exceptionalists, they are acting to ensure that at least their investigative journalists are protected. The measures enacted, first by the state of New York and now mirrored at a federal level, seek to end the principle of comity, a legal reciprocity whereby libel damages awarded in the UK can be enforced in the US.

The New York laws were inspired by the case of Rachel Ehrenfeld, an academic who was sued in Britain by Sheikh Khalid Bin Mahfouz over claims made in her book Funding Evil. The book was published in the USA in 2004, but 23 copies had found their way onto British soil, via websites such as She was therefore sued in the UK. When the British courts ruled against Ehrenfeld, Bin Mahfouz sought to have his award for damages enforced in the state of New York. The British courts ruled against Ehrenfeld. It was this act that the American courts found “repugnant”, because in the US, the claims made in Funding Evil were protected by the first amendment.

Why does this matter? First, it signals a sharp divergence in the legal traditions of two countries with strong, shared values. There is no doubting that the US’s approach to human rights is both flawed and inconsistent, but in the case of the freedom to write, our American cousins have chosen a much more open and democratic approach. When the principle of comity is rendered void, yet another sinew of our already strained “special relationship” is severed.

Worse yet, the bill just approved by the House of Representatives has been branded the “libel terrorism bill”. As we found last year when the government froze the assets of Icelandic Banks, calling a friendly country a “terrorist” – even just as rhetoric, or hyperbole – usually provokes some sort of grave diplomatic incident. And yet, American politicians are doing just this. Our legal system is slowly becoming utterly discredited abroad.

The continued passage of this bill must be a clarion call to our own legislators. Reform is long overdue – libel tourism in its current form has existed at least as long as the Labour government. Unfortunately, it is only in this parliamentary session that the eyes of British politicians come to focus on the problem.

The next report of the culture, media and sport select committee, due later this summer, will examine the problem. Committee members such as Paul Farrelly (Labour), Philip Davies and Chairman John Whittingdale (both Conservative) clearly understand what is at stake. However, in recent evidence to the committee, the justice minister Jack Straw said he was “yet to be convinced there was a significant problem”.

To campaigners witnessing the creation of hostile laws in the US Congress, Straw’s view is surprising and disconcerting. We must hope that the CMS select committee can assemble enough evidence to change his mind, and quickly. The publication of their report cannot come soon enough.