Magazine article The American Conservative

Suit Shopping

Magazine article The American Conservative

Suit Shopping

Article excerpt

Is libel tourism a threat to free speech - or just to neocons?

ON A RECENT RAINY Friday afternoon, British Member of Parliament the Right Honorable Denis MacShane called my cellphone to offer a word of warning.

"Make sure your article is very carefully checked by lawyers before it is printed," he said. "Dealing with this subject is to swim in dangerous waters."

This article, fittingly enough, is about libel. More specifically, it is about the practice of "libel tourism," a growing phenomenon whereby individuals or groups shop abroad for the country offering the most effective curbs on free speech.

It is a matter of consternation to many here in London that the United Kingdom should prove, time and again, to possess the courts most likely to impose an easy gag or order substantial damages. British libel law "shames Britain and makes a mockery of the idea that Britain is a protector of core democratic freedoms," says MacShane. The award-winning Guardian columnist George Monbiot describes the restrictions on Britain's press as a "national disgrace."

It may appear strange that the libel tourist's favorite destination is the cradle of parliamentary democracy and home of Magna Carta Yet today, many libel plaintiffs can take their cases to Britain and expect to win, courtesy of the peculiarities of UK law, the availability of a well-established and powerful coterie of skillful media lawyers, and the leanings of a judge named David Eady, who has been branded "The Privacy Judge" on account of his eagerness to support the allegedly libeled.

Unlike America, Britain has no written constitution. There is no equivalent of the First Amendment, which enshrines every citizen's right to free speech. In the UK, an angry litigant who can prove that he has been accused of something wrongly and that the accusation has damaged his reputation is on his way to a hefty payout.

He can also look forward in many cases to the destruction of any text - be it printed in a book or newspaper or posted on the Internet - containing the presumed libel. After a claim has been established in court - the hard part for the prosecution - a defendant can, in effect, no longer be assumed innocent. He must prove that he is not guilty, a clear inversion of what most people understand to be justice.

The situation in America is very different In addition to the constitutional support, freedom of the press is bolstered by the 1964 Supreme Court decision in The New York Times Company v. Sullivan. Montgomery, Alabama police commissioner LB. Sullivan claimed that a report on police actions against civil-rights protestors amounted to libel. The Supreme Court disagreed and ruled in the paper's favor. The landmark verdict resulted in countrywide adoption of the legal standard !mown as "actual malice." That is to say, a plaintiff has to show not only that an article is wrong and damaging to his reputation but also that the journalist knew it to be wrong and chose to write it anyway. To prove this, which is to prove what a journalist thought as he sat at his keyboard, is clearly difficult.

At this point you might argue that the English deserve their silly laws, that in the U.S. free speech is going on strong, and leave it at that In the age of globalization, however, the legal protections that appear to guarantee the American right to free expression are not as safe as they once were. It is almost impossible these days for a writer to avoid being published abroad.

Whether you are writing a magazine article that will end up on the Internet and be accessible across the world, a newspaper piece that can be syndicated universally, or a book that, even if it is not published outside the U.S., can be bought on a website such as Amazon, your audience is global. And so, as countries grow increasingly interdependent national legal systems have become increasingly entangled.

As a result American writers, journalists, and media outlets are finding themselves facing injunctions from British courts for publishing material that was neither written in the UK nor intended for an overseas audience. …

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