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Exclusive: Libel Tourism – Is the Victory Complete? Adrian Morgan,Editor FSM

Posted By Ruth King on July 21st, 2010

http://www.familysecuritymatters.org/publications/id.6810/pub_detail.asp

Exclusive: Libel Tourism – Is the Victory Complete?
The Editor

When Rachel Ehrenfeld published her book Funding Evil: How Terrorism is Financed and How to Stop It, it was sold only in the USA. However, because a mere 23 copies of these books had been purchased on the internet and had found their way into Britain, she found herself sued in Britain for libel. This practice of suing for libel in foreign jurisdictions to gain the maximum advantage is known as “libel tourism” or “forum shopping.”

The person suing Rachel Ehrenfeld was not a British citizen – he was a Saudi banker called Khalid Salim A. bin Mahfouz, former chairman of the National Commercial Bank in KSA, who had a fortune of $3 billion. Rachel had written that he was

“alleged to have deposited tens of millions of dollars in London and New York directly into terrorist accounts – the accounts of the same terrorists who were implicated in the 1998 bombings of the US embassies in Kenya and Tanzania, in which 224 people were killed, including twelve Americans, and more than four thousand were injured. Mahfouz denies that he has funded terrorism.”

This information was not a wild claim – it had provenance. Former US secretary of state Madeline Albright had originally made this claim after the bombings of August 7, 1998. Bin Mahfouz had “form” for funding terrorism. He had been a leading figure in BCCI (Bank of Credit and Commerce International), the world’s first “Muslim Bank.” BCCI had been used to commit fraud and launder money, and some of its investors used this bank to continue transactions involving drugs and arms. Many innocent Muslim investors, who thought that their money would not be subjected to “usury” had placed life savings into the bank. During the 1980s, BCCI defrauded these investors of $10 billion.

Rachel’s book only dealt with information directly relating to the funding of terrorism, information that had already been discussed in testimony to Congress. Mahfouz was taking advantage of Britain’s libel laws which defy the basic principle of law – that a person must be regarded as “innocent” until proven guilty. In Britain, the terms of libel law mean that it is not the duty of the plaintiff to prove how the defendant had set out to commit libel. It is the role of the defendant to prove that he or she did NOT set out to commit libel. Additionally, unlike American libel law, the British statutes mean that there is no onus to show that there had been an “intention” to commit libel.

Britain’s current libel law is derived from original legislation that goes back to 1819. Following the maxim “the road to Hell is paved with good intentions,” libel law in Britain was introduced to counter abuse. In 1812, Leigh Hunt, a respected publisher of a newspaper (the “Examiner”) had published an article in which he correctly described the corpulent and libertine Prince Regent as a “fat Adonis of forty”. For this, Leigh Hunt was imprisoned for libel. Libel law, following various precedents, had been amended at various stages since then. In 1996, after cases where winners of libel suits had been awarded huge sums from newspapers that had “transgressed”, a law called the Defamation Act was introduced. This again had been introduced with good intentions, to allow civilians who could not afford the lengthy legal procedures to protect their good name. It allowed plaintiffs to quickly get their cases heard, as long as they limited their claims to less than £10,000.

It was this 1996 law that allowed Mahfouz to sue Rachel Ehrenfeld in 2005. She refused to travel to Britain to face trial, knowing how skewed and unjust Britain libel laws were. The High Court judge, Mr. Justice (David) Eady, made a default ruling against her on May 3, 2005. On June 15, 2005, he decided that on top of the £10,000 claimed by Mahfouz, Rachel had to pay the Saudi billionaire’s legal costs and other charges, totaling $225,000.

Mahfouz then started to pursue her at her home in New York, demanding that she pay him. Under terms of “Comity” it is expected that judgments awarded in a country outside the US should be honored under the American legal system, and Mahfouz was demanding this “right”.

Instead of buckling before the billionaire banker’s bullying tactics, she fought him in the New York courts. She challenged him on a point of legal principle and demanded “disclosure”, which would have meant that the banker would have revealed his accounts.

Rachel’s lawyers argued from precedent that Comity was not applicable if an original ruling was repugnant under state law. In 1996 in the state of Maryland, by the Court of Appeals in the case of Matusevitch v. Telnikoff (347 Md. 561, 598, 702 A.2d 230, 248) agreed that UK libel law ran counter to state law and also the First Amendment of the U.S. Constitution.

Rachel Ehrenfeld’s case led to the formation of New York State’s “Libel Terrorism Protection Act”, also known as “Rachel’s Law” (not to be confused with the Florida law of the same name). This law allowed American writers resident in New York to avoid being made to face prosecution for libel judgments made in countries where jurisdiction fails to uphold First Amendment values.

Other states showed an interest in introducing such laws, and now, as Bruce Kesler writes in today’s FSM, the United States Senate has passed a version of this bill, which if ratified by the president, would apply federally throughout every one of the 50 states of America. The bill in question is called the “Securing the Protection of our Enduring and Established Constitutional Heritage Act, HR 2765 “, or SPEECH Act. This is a stunning victory, which will be complete only when Obama signs off on the bill.

In Britain, the law has been abused in an appalling fashion, mostly at the hands of the odious Mr. Justice Eady, who personally decided to throw away legal precedents that had previously prevented libel law from becoming abused.

By removing safeguards that more or less kept British libel laws in check, Eady allowed Mahfouz to successfully prosecute more than 30 different authors and publishers. Authors writing about terrorism have had their work censored – often before they get published – for fear of Eady’s arbitrary interpretations of law.

Jean-Charles Brisard is another serious expert on the funding of terrorism who had also been attacked by Mahfouz. In 2006, he and co-author Guillaume Dasquie were forced to pay an undisclosed sum of money to Mahfouz and his son Adbulrahman for allegations made in 2001 in a book called “The Forbidden Truth.” Earlier in 2004, he had also had a ruling made against him for a December 19, 2002 report entitled “Terrorism Financing: Roots and trends of Saudi terrorism financing.”

M. Brisard told me in an email exchange that:

“..in the two cases brought in the UK against me, a judge ruled that I should pay in total £30,000 in damages and £462,246 in costs, or a total of £492,246 ($969,797)… When KBM decided to enforce these payments, through bankruptcy and other procedures, I then, and only then, resolved to sign an agreement with his lawyers, as I was unable and unwilling to pay nearly $1 million to him.”

The SPEECH act is likely to be signed into law by the president. For writers and researchers in America the SPEECH Act will allow them freedom to seriously address terrorism funding and other important issues. The more Khalid bin Mahfouz used his vast wealth to silence anyone who even discussed his case, the more guilty he seemed. He never dared attempt to “prove” any specific case under US libel law, as he knew he had no means to win. Wittingly or unwittingly, he had funded terrorism.

For some time, people in the UK have been subjected to ridiculous judgments. Anyone who writes about terrorism funding in Britain could be silenced by those who have a vested interest in keeping their dealings out of the public gaze.

Simon Singh, a mathematician and science writer, discussed osteopathy in the Guardian newspaper. He described the wild and ridiculous assertions made by some chiropractors who claimed medical success in treating children who had colic and asthma (osteopathy deals with bones and joints). There is no scientific proof behind the claims of benefit, Singh claimed. The British Chiropractic Association sued him for libel for describing some chiropractors’ claims as bogus. The case was eventually dropped.

In 2005, movie director Roman Polanski sued Conde Nast, the American publisher of American magazine Vanity Fair. The suit involved an article originally published in 2002. This article had maintained that a few weeks after his pregnant wife Sharon Tate had been murdered by members of the Manson “Family”, Polanski had tried to seduce a woman in a New York restaurant. Mia Farrow testified that the alleged incident had never happened. The case itself would have been straightforward, had Polanski not been a fugitive from US law.

After admitting drugging and having sex with a 13 year old girl, Polanski had fled the United States in February 1978. Vanity Fair has a minimal readership in Britain. Polanski knew that if he set foot in Britain, he could be arrested and extradited to the United States. Mr. Justice Eady allowed Polanski to sue for libel by remaining in his Paris home. Polanski was permitted to give evidence to the UK High Court via a video link. He won.

George Galloway has a bizarre political record. He currently has a regular show on Iran’s Press TV, an organ of Iran’s state. This TV station is allowed to broadcast from an office in Hanger Lane, West London, despite Iran murdering its own civilians in 2009.

In 2006 Galloway had said that if a suicide bomber killed then-prime minister Tony Blair, the bomber would be “morally justified”. In 2009 Galloway openly gave money to the terrorist organization Hamas while publicly claiming not to support the terrorist group. Because of his giving money to Hamas, he has been banned from entering Canada.

Galloway has maintained that he had been proved “innocent” of receiving funds from Saddam Hussein after winning a libel case in 2004. The Telegraph newspaper reported that documents, found in Baghdad, showed that Galloway had received money from the Iraqi tyrant. The case was lost, not because Galloway had proved his innocence of the claim, but because of procedure. The newspaper had not contacted Galloway for his opinion before publishing its report. The Telegraph had claimed the previously secure defense of “qualified privilege”.

Qualified privilege allowed a newspaper to publish defamatory material if it was believed to be in the “public interest”. Mr. Justice Eady rejected this defense.

Galloway has since used threats of libel to intimidate and silence individuals and organizations. In August 2008, he successfully sued a small Jewish radio station in London after a claim was made on-air that Galloway was anti-Semitic.

In March this year, Galloway and his assistant Kevin Ovenden (who also supports convoys to Gaza) threatened to sue British blogger David T for comments he made about Galloway’s charity, Viva Palestina, being a “Hamas fund-raising operation.” The threat was never fulfilled, David T has confirmed. However, by making such a threat, Galloway sends a clear message to other British journalists and bloggers who would wish to expose his dealings with Hamas.

With so many Islamists living and operating freely in Britain, the appalling state of its libel legislation will continue to compromise American security.

For American authors, it is good news that the SPEECH Act has been passed by the Senate, but in Britain, libel laws will continue to be abused. Reform of the UK libel laws is not enough – they need to be replaced entirely. Any replacement libel laws should be based upon the principle that a defendant is innocent until the libel plaintiff can prove guilt or malicious intent

American authors are only safe if they remain in America. Rachel Ehrenfeld cannot travel to Britain, as she will be fined. If another plaintiff like Mahfouz (who died in August 2009) is rich enough to mount similar cases, American writers and publishers will continue to be hauled through the UK High Court. Such actions will continue to affect these authors’ and publishers’ future business prospects with Britain.

The SPEECH Act is good news, but it is only a start. Real victory will only happen when Britain, which claims to be an ally of America, enacts some sensible legislation. Britain’s courts are still places where malicious libel cases can be used to silence genuine free speech.

The Editor, Family Security Matters.

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