Janice A. Oser, Esq.

Eyebrows were raised in this country, at least some eyebrows, at the news that the two men convicted of killing the German actor Walter Sedlmayr in 1990 were demanding that Wikipedia refrain from publishing their names in the American version of the Wikipedia article about the actor (“Two German Killers Demanding Anonymity Sue Wikipedia’s Parent,” by John Schwartz, New York Times, November 13, 2009).

Wolfgant Werlé and Manfred Lauber have completed their prison sentences for the crime and are now attempting to force Wikipedia, or, specifically, the Wikipedia Foundation, which publishes the American version of Wikipedia, to suppress their names. They claim that, having served their terms, they are now entitled to their privacy under German law and cite cases in which German courts have suppressed publication of their names in Germany. Their names have been scrubbed from the German version of the Wikipedia article. It remains to be seen whether they will prevail in their efforts to enforce in this country judgments against the Wikipedia Foundation obtained in German courts.

This was astonishing news to some of us who tend to take our First Amendment right of free expression for granted. This right is not, of course, absolute – no protection for falsely shouting “Fire!” in a crowded theater, and all that. And saying or writing or publishing something false about a person that causes that person to suffer harm can cost you. For saying it, you can be sued for slander, or for writing or publishing it, for libel. Either way, it’s defamation.

But in this country truth is an absolute defense to a defamation claim. In this country, a complainant against an author for libel would have to prove that the speech in question was false, and, if the complainant was a public figure, that the author knew it was false or published it with a reckless disregard for the truth. Not so in many other countries, including Britain and Canada, where all the complainant would have to do is allege that the author’s speech was defamatory, and the author would have to prove that it was true, and pay substantial legal costs.

Such a legal standard has a chilling effect on writers and publishers in those foreign countries, where they do not enjoy the First Amendment rights that American writers and publishers enjoy here. Or do they? In this country, the First Amendment raises some obstacles to libel suits. But the First Amendment may not protect American writers and publishers against libel suits in foreign countries that will allow a suit to proceed if the American writer or publisher has even a slight presence in that foreign country – the sale of a few books in that country, for instance, or publication on the Internet.

This situation has given rise to what legal beagles call “libel tourism,” the shopping around by a complainant for a court in a country that has no freedom of speech obstacles to libel suits, and where the defendant will often face an impossible task of proving the truth of the allegedly libelous speech. One country much favored for this purpose is Britain.

In a case that has given rise to a movement in this country to protect Amercan writers and publishers from enforcement of libel judgments against them by foreign courts, Dr. Rachel Ehrenfeld was sued in Britain by Khalid Salim Bin Mahfouz, a billionaire Saudi banker and businessmen, for alleging in her book that he directly and indirectly financed Islamic terrorist groups. Bin Mahfouz has reportedly used British courts to sue for libel at least 36 times since 2002.

Dr. Ehrenfeld’s book, Funding Evil: How Terrorism is Financed – and How to Stop It, was published in 2003. It was not published in Britain, but 23 copies of it were shipped to purchasers in the UK who had ordered it on the Internet. On this basis, the court in London heard the case, and entered a default judgment against Dr. Ehrenfeld, who had refused to appear, for financial and strategic reasons, and, she said, on principle.

Dr. Ehrenfeld sued unsuccessfully in New York State courts to obtain a declaration that the UK judgment against her was not enforceable under the U.S. and New York State Constitutions. Subsequently, New York State enacted “Rachel’s Law,” which prevents litigants from enforcing foreign libel judgments in the state unless a New York court finds that the jurisdiction issuing the judgment provides the same free speech protections guaranteed by the U.S. and New York State Constitutions.

It also grants the New York courts jurisdiction over litigants who obtain a foreign defamation judgment against New York State citizens, allowing Dr. Ehrenfeld and others like her to petition a state court for a declaratory judgment rendering the foreign decision unenforceable on New York soil.

California, Florida, and Illinois have enacted similar legislation, which is being considered in other states. Bills have been introduced in Congress to the same effect, but they have not been enacted.

For now, American writers and publishers with residences or operations in states that have enacted such legislation, and who have substantially all their assets in those states, would appear to be able to exercise their right of free expression with some protection from libel tourists and foreign courts. Publishers with global operations just have to fight it out and, frequently, pay up.

A few years ago it seemed that Britain would curb libel tourism, according to an earlier Times article ("High Court in Britain Loosens Strict Libel Law," by Sarah Lyall, October 12, 2006). In October 2006, Britain's highest court ruled unanimously in favor of the Wall Street Journal Europe, which had been sued by a Saudi business and its general manager for an article published in the Journal and its European edition on February 6, 2002.

The article said that at the request of the United States, Saudi Arabia was monitoring bank accounts of prominent Saudi businesses and individuals to trace whether they were being used, possibly unwittingly, to send money to terrorist groups. One of the businesses mentioned, Abdul Latif Jameel Company Ltd., and its general manager and president, Abdul Latif Jameel, sued for libel. A lower court jury rejected the argument by the Journal that the article was in the public interest, and the Journal was ordered to pay £40,000, about $74,000, in damages. An appeals court affirmed the ruling.

Britain's highest court, however, unanimously overturned the decision, and ruled that journalists have the right to publish allegations about public figures, so long as their reporting is responsible and in the public interest.

The British judge who ruled against Dr. Ehrenfeld did not follow this line of reasoning, and he has since been appointed to Britain's highest court.

Why am I telling you all this? Because even if you are not an author or a publisher, you should be able to read works that are responsible and in the public interest, including works on scientific matters. Your ability to do so may depend on there being authors and publishers not intimidated or not threatened by a libel suit in a foreign court by anyone who objects to the way that he or she is mentioned in the work. For a full and free flow of responsible reporting and criticism in this country, the help of more state legislatures and of Congress is needed.