Rules, Britannia! The Growing, Chilling Reach of Commonwealth Libel Laws
The long arm of the Commonwealth's libel laws was the subject of a panel discussion sponsored by the Authors Guild Foundation at Scandinavia House in New York on September 25, 2006. Longtime Authors Guild Council member Victor Navasky, publisher emeritus of The Nation, Chairman of the Columbia Journalism Review, and author of Kennedy Justice, Naming Names, and A Matter of Opinion, served as moderator for a distinguished international panel that proceeded to give, in Mr. Navasky's words, a "master class" on the subject of libel. Participating were Floyd Abrams, a partner in the New York law firm of Cahill Gordon & Reindell, the William J. Brennan Jr. Visiting Professor of First Amendment Law at the Columbia Journalism School, and author of Speaking Freely: Trials of the First Amendment; Peter Bartlett, head of the Minter Ellison Media and Communication Group in Melbourne, Australia, chair of the Media Committee of the International Bar Association, and co-chair of the Communications and Technology Committee of LAWASIA, an association of lawyers in the Asia Pacific; Mikaela McDermott, an associate at Kornstein Veisz Wexler and Pollard in New York, and author of the critical brief in defense of Rachel Ehrenfeld, subject of a libel suit filed in the U.K. for her book Funding Evil; and Mark Stephens, partner with Finers Stephens Innocent in London, whose practice covers a wide range of litigation involving the media, including defamation and intellectual property law.
VICTOR NAVASKY: Our subject this evening sounds esoteric, technical and somewhat abstract, but for a writer to have the Sword of Damocles, in the form of a lawsuit, hanging over him is far from abstract. And when the suit is brought not in the U.S. but in the U.K., where the law is more favorable to libel plaintiffs, the situation is worse.
I asked Jan Constantine, the counsel of the Authors Guild, if she could get me a copy of a typical warranty clause. In virtually all book contracts there's a little clause that your eyes may glaze over, but it basically says that the author warrants that there is nothing defamatory in his manuscript or her manuscript and if the publisher gets sued, essentially you, the writer, warrant-indemnify-the publisher, unless you have an agent who softens that clause in some way. In many cases you're dealing with a multi-national conglomerate and you're a single writer and yet you're indemnifying them, about something that you don't know anything about essentially, because the law of libel and defamation is constantly changing and evolving.
Floyd [to Floyd Abrams], I don't know if you had Fleming James when we were together at the Yale Law School, but I'll never forget when he was describing the way it used to work in England and he said-[to audience] this was an old torts professor-and he said, "Then up rose Lord Mansfield and he spake like the Bible, the greater the truth sir the greater the Libel." And I thought, well it doesn't quite work that way anymore.
I won't go into it in any detail, but as publisher of The Nation, there came a time in the mid-1990s when we had published a review of a book by Kanan Makiya, who is now much in the news in connection with the war in Iraq. It was a hostile review, and the reviewer, the late Eqbal Ahmad, confused two characters, one of whom was in the book and one of whom wasn't. They both had the same last name; they both were in their mid-thirties; they both were in the financial world in London; they were distant members of the same family; and one of them was accused of financial shenanigans. Our reviewer, with no malice-and our fact-checker, who relied on the same New York Times story as our reviewer-named the wrong guy, as it turned out. The magazine printed a correction as soon as the error was brought to our attention. Nevertheless, they brought suit. I had always believed that you never settle libel suits. I was an absolutist in the Abrams tradition. And yet what it came down to was that we had libel insurance, but the libel insurance had a deductible of $50,000, which means that you're responsible for the first $50,000. We were told by counsel that we would almost certainly prevail. Nevertheless, it would have cost us $50,000 to not come to some kind of settlement with them. So we came to a settlement, and I feel badly about it to this day, because I know we were right. It was a human mistake that somebody made and we corrected as soon as we could. So from a First Amendment perspective, libel law is imperfect in this country and worse in the U.K. Having said that-Floyd, why don't you start us off?
FLOYD ABRAMS: Victor and I were in the class of 1959 at the Yale Law School. I know you're shocked to hear that looking at us, but I start that way as a way of saying that it was after we graduated-which is to say within living memory-that libel law in America was rewritten in a revolutionary fashion by the Supreme Court in the great case of New York Times v. Sullivan.
Victor's asked me to talk with you a little bit about the nature of the changes wrought by that case. Let me introduce it by citing one of a number of cases I've worked on in which it was especially relevant and especially missed. I represented NBC in a case in the late 1980s, arising out of a television broadcast they had done dealing with how easy it was to import drugs from the Bahamas into the United States, and how the prime minister of the Bahamas, Mr. Pindling, always managed to turn the other way, when governments, especially the United States, advised him that drug dealers were using the Bahamas as a very easy stopping place from Colombia into the United States, and that he, so it was said, was personally friendly with a number of people in that field of drugs.
The piece for the Nightly News was prepared in New York and in the Bahamas. There were many people from the Bahamas who were on. Mr. Pindling had political enemies in his country, and when the broadcast ran, he immediately announced that he would sue for libel. And he did so, in Toronto. He started a lawsuit saying, I have a reputation here in Canada, this reputation has been damaged by your broadcast, and I'm entitled to have the case heard here in Canada. We struggled mightily, trying to persuade the Canadian court to dismiss the case on the ground that it had so little to do with Canada. Pindling had rarely been in Canada, the broadcast was prepared here and in the Bahamas, and under Canadian law, which is not unlike the English law, and not unlike the law when Victor and I were in law school in the United States, there were none of the First Amendment protections or Free Speech protections that the Supreme Court started to carve out in 1964, in the New York Times v. Sullivan case. Even so, I would say, when we did start to take Mr. Pindling's deposition-and while depositions are much more sparingly permitted in Canada than here, they're still permitted to some extent-after one day of close inquiry by our Canadian counsel, he did agree to drop the case with no apology, no money, nothing-just let him get out of there already. That's a good sort of settlement.
Why were we so worried about Canadian law, English law? The other way to ask that question is to ask, what did the Supreme Court do in 1964 that was so revolutionary? I'm not going to spend time here, although I recommend to you Anthony Lewis's book on the Sullivan case, Make No Law, a wonderful, wonderful book which has stood the test of time in the years since it was published, but basically it was a case that arose out of certain advertisements published in The New York Times, by people active in the Civil Rights struggle in the United States in the late 1950s and early 1960s, including Dr. Martin Luther King Jr.
It was an ad, and it sought contributions. "Heed Their Rising Voices" it cried out, asking for support and contributions, and it denounced a sheriff in Birmingham, Alabama, who was running the prison that Dr. King was then in. And it denounced the Alabama authorities, and Alabama judges, and basically the way of life that permitted the jailing of people who were doing God's work on earth, by trying to deal with and change the segregationist nature of the society there. The libel suit was brought against the Times, and a half-million-dollar verdict was awarded by a jury. It was one of many verdicts from southern, all-white juries that came out around that time, and the ability of the national press to report on what we now call the Civil Rights Revolution was truly imperiled by this and other verdicts of the time. There was no reason to think that a white southern jury was ever going to rule in favor of one of these "northern publications," as they were viewed, writing about what was going on in their part of the country.
Now, there was a defense that was allowed, and the defense was truth. If a story was true, from the beginning, from the time the Constitution was written, one could defend on grounds of truth. But that was about all, and southern juries were rejecting very strong proof of truth again and again and again in this highly charged, highly emotional subject area, which, as we all know now, was tearing the country apart. The case went to the Supreme Court, and most people, I think, thought that the Supreme Court would reverse in some way, that the consequences of saying that stories like this couldn't be written, or advertisements like this couldn't be published, even if there was something or other wrong with it, or a jury thought there was something or other wrong with it, was just not acceptable from a societal point of view-and that the Supreme Court would find a way to deal with that dangerous prospect. But what the Court did in the course of its opinion did surprise people.
It wrote what was probably the most important opinion (written by Justice Brennan) about the nature of First Amendment protection in our nation's history. We've had expansive dissents but we don't usually get expansive majority opinions, and this was an opinion of the Court itself and what did it do? Well, for one thing it said we no longer would follow the rule that as a country we had followed since the very founding of this country, which is that if somebody brings a libel case, the person's reputation is assumed to be good, criticism of the person is assumed to be false, and anybody saying anything bad about the person has the legal burden of proving it.
Doesn't sound so terrible, but we were finding again and again that juries couldn't be trusted simply to make a truth/falsity decision and especially in a legal system which, as is still the case, appellate courts do not review factual issues very closely. They basically leave those to juries.
So the first thing the Court said was-when somebody brings a lawsuit with respect to material said to be libelous, and the person who brings it is a public person, like the person running the prisons in Birmingham, like other public officials in Birmingham who were accused by the ad, then all the old rules about who has to meet what we call the burden of proof (and elsewhere is called the onus), the critical issue of who has to speak first, and who has to meet the burden of showing something is true or false-from now on, at least in cases with public officials, because it is so important for people to be free to criticize public officials, we will say that a public official has to prove what was said about him was not true.
And the second major thing they did, which is the most famous thing in the case, was to create and enforce the notion-phrased very poorly by the Court-of what we call "actual malice," which, as one judge said later on, had nothing to do with "actual malice" as any intelligent literate person would use those words. What the Court said was, we're going to leave some room for error in speech. If somebody, as Victor's story illustrates, makes a mistake in writing about public officials, and if it is simply a mistake made in good faith, we will say, it is so important that people feel free to write what they believe, and to say what they believe, that even if it turns out not to be true, that speech will be protected. So, phrased as lawyers would phrase it, they said that even error was protected, so long as it was not made with actual knowledge of falsity, a lie, or serious doubts as to truth or falsity-though as one court said later, you have to either know it's not true, or think it's probably untrue.
That is a subjective test and there are some big problems with it being a subjective test, since it relates to the state of mind of the author or the journalist or the publication when all is said and done. And that, starting with New York Times v. Sullivan, became the law with respect to lawsuits by public officials, and then later on by public figures-people who are out of government but so famous that everything they do by definition is newsworthy, or people who thrust themselves into the vortex of public debate by sounding off with respect to what they think happened.
There are other things that the opinion did, but these two are probably the most important, and the effect of it has been that lots and lots of libel suits can be disposed of during the pre-trial stage, sometimes after laborious and expensive discovery-another problem in the legal system-but in any event not forcing authors, publications and the like to go through the burden of having a trial if they can simply demonstrate that when they said what they did they thought it was true. In fact, they don't have to demonstrate it. The party suing has to demonstrate that they did not believe what they said was true; that they were deliberately lying.
That's the law with respect to public figures and public officials. What about so-called private figures, people who are not in power, who haven't thrust themselves into public issues? They have more rights to sue, and it is easier for them to win, but even there, the Supreme Court, in cases starting with New York Times v. Sullivan, have said that there has to be, at least, negligence or misconduct by the author. That is to say, even if the author gets it wrong, so long as the author made reasonable efforts to find out what the fact was there is not supposed to be liability, and the states were freed to give more protection than simple negligence, as New York has, for example. Under our law, a private person in a libel suit can win, but has to show not just that what was said was false but that it was said with gross irresponsibility, something a lot worse than behavior, a lot more offensive, less intellectually defensible certainly, than what we call simple negligence.
Well, those principles have had an enormous impact on that which can be published, that which can be defended, and it has really been made a part of American culture as well as American law. It's not just lawyers who read materials in advance; it's editors and it's other people as well, and the effect of this is a lot of lawsuits that are brought abroad, routinely, are simply not brought here. It would be shocking in America if President Bush were to start a libel suit. People wouldn't believe it. Presidents don't bring libel suits; prime ministers do. And there's nothing wrong with it. I'm just saying, as a cultural matter, in part because of more expansive notions of what we mean by freedom of speech and freedom of the press, presidents don't and congressmen don't and candidates don't. And so what is routine abroad is almost unthinkable here.
A final note: People can win libel suits. We have not abolished the whole notion of libel suits in this country. Things are said, sometimes quite deliberately falsely. Material is published which fails even the very permissive standards set forth in our law. But for better or worse, and we can talk about that if you like, the culture here follows the law here, and there is this enormous level of legal protection, all of which started five years after Victor and I moved out of law school.
NAVASKY: Thank you, Floyd. Mikaela, why don't you tell us about the case that is working its way through the international legal arena at this point as distinguished from the American courts?
MIKAELA MCDERMOTT: My law firm represents an American author by the name of Rachel Ehrenfeld. She's a journalist and a scholar who works primarily on investigating the funding of international terrorism. In 2003, she published, in the United States, a book called Funding Evil, which is about funding international terrorism.
In that book she made some statements that linked a Saudi financier, Sheikh Khalid Salim a Bin Mahfouz, to terrorists. She said that organizations that he and his family owned and controlled had funded various organizations that were related to terrorism. Mahfouz is a citizen of Saudi Arabia and has sued or threatened to sue in England for libel on at least 29 occasions that we know of. In December 2004, he sued Dr. Ehrenfeld based on the statements in her book. She made a decision not to defend that suit in England for several reasons. The most important one, I think, which is tied to what Mr. Abrams was talking about, is that the law is very different in England. She would have had the burden of proving that what she said in this book was true. She wouldn't have had the defense that even if it wasn't true, she actually believed it to be true. Another reason she decided not to defend was that financially it would have been quite onerous. What she decided to do instead was to file a lawsuit against Mahfouz here in New York. She filed in the Southern District of New York, and brought what's called a declaratory judgment action. Since she didn't defend in England, there's now a judgment against her there for the equivalent of more than $200,000. So she asked the federal court here in New York to rule, first, that if he tried to enforce that judgment here he would not succeed because of the protections that this country and the state of New York gives to free expression; and second, for the court to issue a statement saying that if he sued her here using the same allegations that he did in England he would not prevail.
We filed that suit in December of 2004, basically a day after the default judgment was entered against her in England. Mahfouz's lawyers, who are based in Washington, moved to have the lawsuit thrown out on two grounds: The first was what's known as subject matter jurisdiction, which says basically that you can't bring a lawsuit in the United States unless you have an actual live controversy. Their essential argument, which I'm simplifying here, was that since Mahfouz has not attempted to enforce his English judgment here, there is no live controversy. The second ground they raised was that the New York court has no personal jurisdiction over Mahfouz. In order for a New York court to have jurisdiction over a foreign defendant they have to have some sort of connection to New York State. Even in federal court they look at the New York State statute, which is called the long arm statute and it basically says that in order to have jurisdiction over a foreign defendant that defendant must-and again I'm boiling this down-either have transacted business in New York or committed a wrongful act outside of New York that caused injury in New York. So those are their grounds. We got an adverse decision last spring from Judge Casey here in the district. He didn't address the first question, which was the subject matter jurisdiction question, which he characterized as novel and somewhat complex. Instead he dismissed the lawsuit on the personal jurisdiction grounds saying that first of all, filing a lawsuit in a foreign jurisdiction, i.e. in England, doesn't constitute transaction of business in New York, and second, that filing a lawsuit in England doesn't constitute a wrongful act.
We have appealed that decision to the Second Circuit Court of Appeals. The thrust of our argument was that this was an American author who lives in New York, works in New York, published a book in the United States and never made any sort of effort to have it marketed or published in England. In fact, Mahfouz's lawsuit in England is premised on the fact that only 23 copies made it into England, by virtue of being sold over the Internet through Amazon. We argue that as a result, his entire lawsuit was actually aimed at New York, because this is where she lives and works, and that it was therefore aimed at restricting her freedom of expression here, thereby creating a chilling effect. That's the thrust of our argument.
As for the real world effect this has had on Dr. Ehrenfeld, it is very much the Sword of Damocles: Mahfouz has chased her to the precipice but he hasn't shoved her off. He's refraining from enforcing his English judgment here in New York, which creates a situation where she can really have no peace of mind. But as she said in her affidavit in connection with this case, she's had to hold back research that she would ordinarily want to publish for fear that she would be sued again. She works at a nonprofit organization that is funded primarily through grants. She's had situations where she's been told that a grant is imminent from some sort of foundation and then just before it's about to be awarded they find out about the judgment against her and as a result she hasn't received the grants, which clearly inhibits her ability to make a living. She has also said that publications that normally would take articles from her have declined to do so again for fear of being sued. She's also had the mental anxiety of having to live with this judgment without knowing know what's going to happen, and to invest energy and resources in this sort of litigation. That in a very brief nutshell is what's happening in our case. The oral argument is scheduled for November 8 in the Second Circuit Court of Appeals and we expect a decision in the months thereafter.
NAVASKY: Do we know how many of those 23 copies the lawyers for the plaintiff bought?
MCDERMOTT: They claim, and Judge Eady said, that none of them were but we have no way of knowing that.
NAVASKY: All right. Thank you both-Floyd for your brilliant concise explanations of the grand scheme of things and Mikaela for your description of the case. Now Mark. You're the guy who told her not to show up in court, right?
MARK STEPHENS: I was. As authors, you're spreading your work across national borders. I mean of course let's be frank about this-that's how you trouser most of the money that you make. And as a consequence of that you're going to be bumping into legal standards which vary I suppose from Afghanistan to Zimbabwe, with the U.K. somewhere near both of them really, why does this matter? Sitting here in your ivory tower protected by Floyd here in New York, why should you be worried about that? Well, the answer really is that I come from a town named Sue. London is the global libel capital of the planet. In London, the Queen sues, politicians sue, princes and potentates sue, and that is why London has become the libel capital of the world! We have celebrities, crooks, brigands, all jetting in from across the globe, in order to launder their reputations in front of the libel courts of London, before grown men, bewigged, wearing the traditional silk stockings under their gowns.
And of course you have to say to yourself, why is this? The law like any other thing-Gap adverts for example-has trends, and the trend was started in this particular case by a Hummer-driving nouveau eco-friendly film star, Arnold Schwarzenegger. He was the first libel tourist to climb aboard the Concorde and come over to London in three and a half hours in order to skip up the Strand with a writ in his hand merrily to issue it against an American authoress named Wendy Leigh, who'd written a book in this country about him and his life as a film star and all of those sorts of things. And she had revealed in this book, part of which was serialized in an English newspaper under the headline "Arnold: My Nazi Secret," the fact that his father was a member of the Nazi party. Well, you know, this was demonstrably the fact. We had his father's Nazi membership papers, so there wasn't any doubt that his father was a member of the Nazi party in Austria. The complaint he made was not that his father was a Nazi; no, of course he was, but people might think that he knew and approved of his father's Nazi past. And, of course, this is a gross calumny and a defamation! Certainly in London, anyway.
This was the first case that came forward. And so we decided that we were going to try to justify this story, so I went off down to Saint Lucia to take some evidence-well, it's a hard job, someone's got to do it-and I went to meet a former Mr. Olympia. Now, for those of you listening on WBAI, it doesn't really work, but if perhaps someone can explain. What I'm going to do is try to strike a pose, in large measure because of the overwhelming similarity between Arnold's body shape and my own-
NAVASKY: I can tell the radio listeners he's 100 percent accurate.
STEPHENS: I'd like to show you the pose that was struck. There's a traditional bodybuilding pose called the Archer, and what the bodybuilder does is he pumps himself up to the max, and then does this kind of a pose where-let the record show that I'm bending my body in the form of a bow. This is a standard body-building pose. And I was told that Arnold, in Berlin, went onstage and struck this pose more in this kind of way: Let the record show a Heil Hitler salute. Anyway, he apparently got booed by this German audience, and as a consequence of that, as he came offstage, this Mr. Olympia said, "Well, that didn't go down very well, did it, Arnold?" And Arnold reportedly replied, "Ha! These Germans are nothing without an Austrian to lead them!" which I thought was interesting, made the trip to Saint Lucia almost worthwhile.
This was the sort of evidence that we were getting. Entirely coincidentally, and just to show that Arnold's a good guy and I'm not anti-Arnold, Arnold donated about a million dollars to the Simon Wiesenthal Center at just about the same time as this case. I'm sure it was entirely unrelated, and altruistic. He's genuinely a nice fellow. For a Republican.
Moving on, so why would you come to London to sue? The answer-I've sort of given you a bit of a clue-is that you can win over the silliest of libels. We had an actor and playwright, Steven Berkoff, who was described as "hideously ugly." Well, in my view, he is! But he got £75,000 for someone saying it publicly! We had a soap star who was described, again, im my view quite accurately-a man called Bill Roache-as boring, and he undoubtedly is. But indeed, not only was The Sun newspaper not actually describing Bill Roache, the actor, they were describing the person he played in the soap, Coronation Street. So, it was actually his fictional character they said was boring, and he still recovered £25,000 for damages. And then there's this woman, Charlotte Cornwall, of whom it was said, in a review of her acting performance, that "She has a big bum, can't sing, and has a stage presence that jams lavatories"-for which she recovered astronomical amounts of damages.
In the more modern era, just this last year, Vanity Fair went down to Roman Polanski, as opposed to vice versa. The point about that was that here you have a man who was a fugitive from justice in California, living exiled in France-where else?-for statutory rape, and he sues in London over what can only be described as a minor indiscretion at Elaine's, where it is suggested that, rather too soon after his wife's death, he put a hand on a model's knee. I mean, I'm sorry. If you're a convicted pedophile, it does seem to me that that's a little rum, but an English judge and jury were happy to give him £75,000 worth of tax-free damages. So of course they're all going to come over to us, aren't they? Arnold's been again. He was here just this last year. There was a television presenter called Anna Richardson, and Arnold was sued because his spokesman had suggested that she had sat on the governor's lap and jiggled up and down, thrusting her breasts into his cupped hands-much against his will, I am sure. That case has just been settled out of court on confidential terms. I was entertained to note that Arnold signed into law in California, at almost the same time, that you can't now, in California (at least), keep the terms of any settlement in relation to a sexual case confidential.
So what do we do about this? Well, for several years, we've had people like Kitty Kelley coming over, and really, what they've done, is they've either not been publishing or they've been filleting the books that have been available in the U.K., because they all want to market to avoid the cost of claims, particularly in book publishing, that have led book publishers to be more cautious than broadcasters and newspaper publishers, and book publishers, unlike newspapers and broadcasters, look for these indemnities against their authors. So the problem's really sort of followed through, and there's been a whole series of cases that kind of track through the way we play this sort of mating game with the U.S. over our libel laws.
Before the advent of the Internet, back in April 1994, in a case heard here in New York in front of Judge Shirley Fingerhood that involved the publication India Abroad, Victor Kovner came up with the rather nice notion that U.K. libel law wasn't compliant with the U.S. constitutional protections on free speech, and said, "You should refuse to enforce the judgment, Judge," and she said, "I think that's a good idea." And part of it was about what Mikaela was talking about in terms of the reversal of the burden of proof; in the U.K., everything's presumed to be false. So if you write something down, we always presume it's a lie unless you can prove it to the contrary. We then moved on, and a few years later, in November of 1997, another U.K. libel judgment came to be considered, this time by the Maryland Court of Appeals. In that particular case, the court did a really good job of deconstructing English libel law, and found it was deficient on 20 separate grounds, from some of the constitutional protections that you all enjoy in this country-things like the absence of a public figure defense. That was all very well, and so we thought, well, as long as they're not published in the U.K. or filleted for the English market there isn't going to be a problem. But then Amazon started putting things into the U.K. jurisdiction, which started to open authors up to claims, and under the indemnity that Victor referred to, we started seeing claims coming back against the authors. One terrorist hunter, Jean-Charles Brisard, decided that some too many Gulf billionaires who'd been the alleged seed funders of al-Qaeda had sued in London, and under those circumstances probably the best thing to do was to put a clause into his contract which says, "I'll sign this indemnity but you, the publisher, can't sell the books in the U.K." Seemed like a good idea didn't it? That would seem to solve the problem.
No, it didn't. Unfortunately, what happened was his publishers sold the book here and somebody walked the book back into London, and the judge said oh, that was foreseeable, you can see that somebody was going to come to America, buy it at JFK, fly it back to England, it's been published in the U.K., you're liable. They found him liable for damages in the U.K., even though he'd deliberately tried to avoid publication, done everything he possibly could to exclude the possibility that that book would reach the U.K. So that created a big problem.
We then got involved in a case here, Dow Jones v. Mohamed Al Fayed, the owner of Harrods, and the would-be putative father-in-law of Princess Diana, and effectively, what happened was, we tried this notion of applying to the courts here, saying we want to stop Mohamed Al Fayed bringing proceedings in the U.K., because he's suing an American newspaper, The Wall Street Journal, over an April Fool's joke that they made. Because we now know that English libel judgments aren't enforceable in the U.S., we said, "What's the point of going all the way over to London to lose the libel suit, then come back here, to have it not enforced? Seems a waste of money to everyone, doesn't it?" And the judge here in New York said, "No, that's not a very clever idea. I think you should go fight the case in London." Unfortunately for us, we won the case in London, the only case anyone had ever won in a libel case that year. So we never actually got to test the point, but then we came full circle to Rachel Ehrenfeld's case.
Now I got Rachel into the hole which she's in, you know-large judgment against her, declaration that everything she's ever written in this book, Funding Evil, available at all good bookshops, published by Bonus Books, is false! And of course the person that sued her, a man of enormous moral rectitude, the man behind the BCCI Bank-that'll give you an idea of the sort of public interest in what she's writing about-got a default judgment against her. What was in play here? What was in play was 23 books. If she'd fought the case, she would have had to fork out something close to $400,000 minimum, probably a considerable amount more in legal fees. Many of these terrorist financing cases, because they involve going to the Middle East and collecting evidence in many jurisdictions, can run up literally millions of dollars. Over 23 books. Doesn't seem very much worth it. So I said to her, are you ever going to come to the U.K.? Can you live your life without coming to the U.K.? And she said, Yes, I can, and I said, Well, don't turn up. They'll get a default judgment-and they did, about $50,000, something like that-and if they try to enforce it in America they'll never manage to, so just stick two fingers up at the English court system. She did that, and that's where we get to.
I made these points in somewhat jocular fashion, but the fact is that this is very, very serious and it's very, very expensive. They did some research at London University about five or six years ago now, and something like 98.7 percent of libel cases [in England]are won by the claimant to the extent that at least you have to pay their lawyer's fees. So the plaintiff will receive at least their lawyers' fees. Even if they don't get an apology, even if they don't get damages, you will end up paying their lawyers' fees, because one of the simplest ways to buy off claims is actually to buy off their lawyers. And so actually, this is a part of the problem, because you will be liable for damages. So if you lose, and take the $400,000 that we were talking about earlier for Rachel Ehrenfeld, for her 23 copies of the book; if she loses you're doubling it up, because you're paying not only your fees, but you're also paying the lawyers' fees on the other side. So $800,000 for 23 books ain't a great equation.
NAVASKY: Thank you for that good news, and the advice to stay out of London. Let's hear now from Peter Bartlett and then let's all talk together. What do you think about this, Peter?
PETER BARTLETT: I think it's always very difficult to follow Mark. He talks about the chilling effect of defamation action in the U.K., and the flier being circulated to the audience cites the "Growing, chilling reach of Commonwealth libel laws," but I think this is really a fallacy. I think that if you focus on the difference between the libel laws in the U.S. and the libel laws in the Commonwealth, it maybe is a little chilling, but as authors, I think that you should be a little more conscious that while what Mark talks about and what the U.K. and the Australian Commonwealth defamation laws can cost you is dollars, there's something that's a little more chilling than that. If you go, for example, to Singapore, you're likely to face far more defamation actions than you would face in the U.K. or a place like Australia. We've seen two journalists this month jailed in Senegal, we've seen Zimbabwe cracking down on a free press, we've seen Guatemala on the ninth of September with a journalist shot dead. In Niger we have an editor and publisher jailed for 18 months for an article that was critical of their prime minister. In Thailand they have criminal liability, as many other countries do for libel, and I must say, just to digress for a little, I personally was sued for defamation in Thailand after my law firm had a disagreement with a number of ex-partners. We were sued in Bangkok and I received a copy of the writ and I asked for a translation. I received the translation and it talked about the criminal code of Thailand, and then I asked for a translation of the criminal code of Thailand and it said that we were in breach of clause 33, so I looked up clause 33 and it says, "Insulting the King. Penalty: death." That's fairly sobering. And I said, Well, what have we done to insult the king? This sounds a little serious, and when I queried it I found that it was a typo and should have been clause 35.
But it does show, I think, that in jurisdictions like the Commonwealth, the libel laws are different, the risks for publishers are greater and you do need to be aware of those. I acted for Simon & Schuster a number of years ago when they were sued in Australia and also they were sued in the U.K. by a fellow named Rakimov, who they said was a leading businessman in Uzbekistan. He was refused admission to Australia for the Sydney 2000 Olympics, one of only two people who were denied entry to Australia for the Olympics, and this particular book alleged that he was a leader of the Russian mafia and running drugs in Central Asia. Now it's all very well to publish books like that, but if you distribute them in these different jurisdictions you do need to recognize that it's necessary to prove these allegations if in fact you're sued. And when you make allegations against someone like that, you tend to find it difficult to get someone to go up in the witness box and give evidence. As this conversation is being taped I won't go into the details of why, but I'll leave that to your imagination.
I acted for another U.S. publisher and I recommended that the book be withdrawn worldwide, and that was agreed to because there were significant problems with the book. A month later the plaintiff's lawyer phoned and said the book's still available in the U.S. and I said, That can't be, we've withdrawn it worldwide. So I rang up the in-house lawyer in New York and said, I'm told this book's still available in the U.S. and the response was, Well, you told me to withdraw it worldwide; we don't think the U.S. is part of worldwide. Now that made me think Americans are a little different than Australians, because we would regard America as part of the world. So I'm now a little more certain of the words I use. I say can we withdraw it worldwide and in the United States.
But there are a number of these people who do go to the U.K. and to Australia. A couple of weeks ago we had Mohamed El Guerbouzi, who had sued, I think, about 15 major publishers in the U.K. and recovered damages from them, and was threatening the Australian Broadcasting Corporation and Agence France-Presse, both in Australia. And so there are these risks. I think that now that more and more books are going online, you do need to recognize that a place like Australia, we had the Gutnick and Dow Jones case, which Mark didn't mention-he doesn't like the decision but-
STEPHENS: It's an Australian decision, so it's clearly wrong.
BARTLETT: Gutnick is an Australian businessman. He does have businesses in places like New York, Canada and other places, but he is Australian; he lives in Australia; his major business operations are in Australia; he sued for defamation based on the publication within one state of Australia-that being his home state-and he said, Well, I should have the courts in that state hear the case, and the Australian courts agreed. Now there have been decisions in the U.K. and in Canada since, which say that you really need something more than accessing the Internet for that place to have jurisdiction. You need something more than half a dozen hits or something, but that isn't recognized by the Australian courts. It may well yet be if another Gutnick case ever goes to our highest court. But the difficulty for you as publishers is that at first instance, even that court of appeal will be bound by the highest court in our country, and so you will need to spend a lot of money. I think it's important to recognize that even though you go to your lawyers and say, What I say in this book is totally and utterly accurate, and I'm confident I can prove it, if you get sued in an obscure country, your exposure to damages is probably reasonably restricted, because maybe half a dozen, or 20, or 30 or a hundred copies of the book actually got to that jurisdiction. The problem that you have is that the legal costs can be quite substantial, because you'll have the costs of your attorneys here, and the costs of the attorneys in that jurisdiction where you're sued. Now, I might say that's a very good cause, going to the boys, but it can be quite costly for you. So you do need to be very careful when you decide where your books are going to be distributed. Think what the potential exposure is going to be in those jurisdictions.
NAVASKY: Thank you. Let me ask us all to give a hand to this quite extraordinary panel. Let me ask two questions, and then turn it over to the audience.
This to me is very important because the law of defamation takes place at the intersection of two great values that democracy has: One is free speech and the other is the search for truth. And so question one has to do with the search for truth. You know, I'm all for the bias of this panel-if the panel has any bias-which is on behalf of the writer who is going to be beleaguered. But what about the poor subject who literally is defamed? How do we protect the subject?
And the second question is, What is the solution aside from, "Don't go to London"? Is the solution to be found in an international treaty? Is it to be found in legislation? Is it to be found in some kind of socialized insurance where we could all get together and, as the Authors Guild, maybe contact authors' organizations in other countries and offer writers in other countries some kind of community protection? So those are my two questions. Anyone, feel free to jump in.
BARTLETT: Well, I might say I have only ever acted for publishers and therefore I am very biased in favor of publishers, but I tend to look at the American system and think that maybe it's gone a little too far in favor of freedom of speech and doesn't sufficiently protect the rights of someone who is damaged by an error that's been published. I think since January 1 we've moved from eight separate jurisdictions in our country to one, and the new law that came into force on January 1 is aimed at protecting reporters and authors who act reasonably so that even if you've got it wrong, if you've acted reasonably-for example, if you look at print media and you phone up the person that you're attacking and give them the opportunity to respond and publish their response, and you investigate the allegations thoroughly then you will be protected, and I think that that move towards accuracy in journalism should be commended.
ABRAMS: You know one of the choices that the Supreme Court had when it was deciding the New York Times v. Sullivan case, and people have talked about this ever since, was not to revise, not to revolutionize, not to federalize the law of libel to the extent that we did but simply to limit the amount of damage. Not to get rid of damages in libel suits altogether, but to allow the law of libel otherwise to go on as before, with strict limitations on how much could be awarded. Indeed, some of our states have quite serious limitations on how much can be awarded. That has something to be said for it. What it doesn't deal with is the impact on newspapers, broadcasters, magazines, say, in pushing the tort. One of the interesting questions here is, when should a case be settled? Victor asks what should we do, what can we do? The New York Times has a no settlement policy with respect to libel suits, and they mean it. A lot of other publications simply don't settle libel suits.
I'm writing an article right now about a suit that a book company owned by the Times-a company which did settle libel cases some years ago-in which an author had accused someone, basically, of being in the SS during World War II, and acting on their behalf, and bearing responsibility for all that, was now living freely in America. The man sued and said, It's not true, I wasn't in the SS, I was leading my people throughout various areas of Eastern Europe, but I was never in the SS. Classic factual question: What was true and what was not true? At the same time, a question which would cost an enormous amount of money to prove one way or the other. As it happens-I'm talking now of the early Reagan days-we got an enormous amount of help from the Soviet Union. They gave us affidavits of people who said they saw him in an SS uniform; they saw him, they said, send people to be killed while wearing his SS uniform. The position of the plaintiff in the suit was, The Russians make up affidavits like this all the time; they can't be trusted. And there were indeed many cases, or situations, in which that was true.
Well, we had a chance to settle the case. The question came up, Should the case be settled or not? On this the Times wasn't sure. The insurers wanted to settle it. We were about to go off with video cameras to tape depositions, in the Soviet Union, of people that the Russians had told us would be helpful. I raised the question with the client, What do you want to do? And Mr. Sulzberger had only one question for me: Is he a Nazi or not? He said, I'm glad to have the insurance company pay and get rid of this case, but I really don't want to agree to pay it or authorize them to pay it, if the guy really did all these things and we published a book saying correctly that he did all these things. And I had to say I don't know. The author had good sources and it was undoubtedly the case that his sources said what he said they said. On the other hand, the lawyers on the other side had people who said it was all untrue, and the sources hated him, etc., etc.
So what to do? Well, we found ourselves in the situation in which we had these affidavits from the Soviet Union and the United States government was totally unhelpful, totally unhelpful everywhere we went. And we settled the case. The insurance company paid the money. Everybody sort of gulped and said, You know, we don't know. The guy may not have been a public figure and we would not have the benefits that I've described to you of the New York Times v. Sullivan case. And two months ago the CIA released documents demonstrating that this man had worked for the CIA for six years during the 1950s, and that they had gotten rid of him because they became persuaded that he had indeed worked for the SS, which didn't bother them so much as that he had lied about it to them. And so a report was issued basically saying that. No one remembered the book anymore but it was right.
As someone who was involved in the case and played a role in trying to get the client to decide because I didn't know what the right course of action was, it filled me with a sense of inadequacy in making decisions of this sort. One of the problems, as I see it, in the future, is that more and more publications-not my clients, incidentally-are becoming less and less vigilant in defending books, magazines, articles and the like. It's easy to settle. Very often people who either did do the bad thing they were accused of or didn't do the bad thing they were accused of don't want money, they want a retraction, and the decision about a retraction is a very, very difficult one, as the story I just told you indicates.
A final thought: I just want to indicate what we mean by truth when we all use the words here, because lawyers use words in a way that are very clear to them, but have to be explained sometimes. Truth in an English court means this really happened; it really happened just the way you say it happened. Not that you interviewed people who said it happened, not that you wrote books that said it happened. That's not admissible evidence; that's all hearsay. And it would be hearsay and inadmissible here, too, if we were not so interested in the state of mind of the journalist. But that's one of the reasons it's so important, at least in an American context, to have the defense of relying on reasonable sources, or, to put it differently, not deliberately lying about something. A reporter, a journalist or an author can say, "I believed that such and such happened because so and so said this, and so and so said that, and so and so wrote a book saying this and the like." That's admissible here, but only for the legal reason that we focus on the journalist's state of mind. It is not admissible to prove "truth," because we treat it as what we call hearsay.
I understand that there's an element of legal technicality in that, but it has enormous practical impact. So when we say that in every country but this, maybe, if you publish something you have to prove it's true, we don't mean by that prove it's true in the sense of saying you have reliable sources, scholars, eyewitnesses, this and that. What we mean is really being able to demonstrate in the way that the law interprets the word "truth" that it happened just the way that you said. And that's one of the reasons it is such an important protection, in my view, of the whole notion of freedom of speech and freedom of the press, to have something like the system that we have here. I don't think everybody's got to have it, but in terms of our own country, at least, I think it works pretty well.
NAVASKY: Great.
STEPHENS: Britain's greatest legal export is libel. I mean we exported it to the colonies when you were the colonies, we exported it to the whole of our Commonwealth. And one of the things that's quite interesting is, it was developed to stop people dueling-to stop the sons of the landed gentry from dueling and erasing blots on the family escutcheon. It seems to me that we haven't really come very much further in the Commonwealth. You, on the other hand, have changed. You've reversed the burden of proof that Floyd was talking about, but you don't presume things to be false and you've introduced the Sullivan standard, and so what we now find ourselves with is a situation where you can find a set of facts where you publish something in this country and it is entirely unobjectionable at law; it can't be actioned at all. Two very obvious examples of that seem to me to be the Roman Polanski case and the Rachel Ehrenfeld case; they couldn't win those cases in this country. What has happened is that those people are then taking something which is perfectly legitimate and has probably been cleared by lawyers in this country and suing in London on a different legal standard, different rules, so it's effectively like putting a metric slide rule over an imperial standard. Of course they're not the same.
So the claimants coming to London want an order vindicating them. The order from the Royal Courts of Justice in the Strand, which comes with the Queen's Crest on the top, and of course that's what they want to wave around. I've come hotfoot today from a human rights NGO who are being sued in London, by a Rwandan national, who is accused of overseeing genocide in one of their reports. The problem is that most of the witnesses are dead, scared, displaced, in Rwanda, and it's going to be very, very difficult (and expensive) to find them, and I think this is what he's relying on. Because how do you go off into the bush in Rwanda and find people who will come to London and testify against someone like that? It's very, very difficult, and that is the difficulty with our system-so we've got someone who actually should not be given a vindication and in those circumstances, but is likely to get one. And it will be a false vindication which they can then use around the world.
NAVASKY: Thank you. This is a master class.
AUDIENCE: I'm writing a memoir sort of thing, and I've created a "confessions club" which contains certain people that I know. They weren't actually in this club and I don't really libel them, but I do say things about them and I've put them in this club where they were not. I change them all around, so they'd hardly recognize themselves. Is that libelous?
NAVASKY: I'm going to repeat the question: This is someone who is writing a memoir and has changed around a lot of facts about the people she's writing about, not in a libelous way, but the question is, are such changes, per se, libelous? A second question is, is that a good thing for a writer to do or not? This guy Frey got in a lot of trouble for doing something like that, but let me ask the panel if they have any observation or answer.
ABRAMS: Well, you certainly ought to take care not to make them do things that are worse in your book than they really did, even if they're not exactly the same things. Of course the other thing you might consider, obviously there've been lots of books based upon personal experiences and the like, where people fictionalize, but you know, make up new names. We do have a rather protective body of law protecting works of fiction.
There's an old New York case in which an author wrote a book in which he described his former girlfriend in a very, very unflattering way, basically transformed her into a prostitute. She sued, saying everybody knows it's me, you've described me physically in every way that all my friends know, including details of our relationship that all our friends know, could only be me, and then you've made me a prostitute. Well, the author said it's a work of fiction. I meant it to be a work of fiction. Great authors throughout the ages, Shakespeare and more, have used stories based on reality, but have added enough to make it fiction and are thereby protected.
But you do have to be careful. The more it's just like the person the closer care you better take, at least that the person doesn't do anything worse, as I've said, than you can demonstrate really happened. I represented someone who wrote a book that was a work of fiction in which certain things are described which to anyone who knows the person, are based on a former husband of the person, in which the former husband is described as having been convicted of such and such a crime. Well it wasn't that crime, it was another crime in the same area, and he, when he threatened to sue, said basically, but you've made me much worse than I am. You've transformed this so-called fictional character, that everyone knows is me, into something far worse than anything I was ever accused of. And that did raise some serious legal issues.
AUDIENCE: I'm wondering if there's a difference in the U.S. and the U.K. in what is actually defamatory. It's easy to talk about someone having been in the SS or not, and whether that's true or not, but where does the line come when something becomes actually defamatory in legal terms?
STEPHENS: The argot of the London libel pleader has become refined to the point where it's taken on the form of its own language. So for example, our society has moved to a point where to suggest that somebody is gay is not defamatory of them. We allow gay marriage, it's legitimized and the rest of it. And right-thinking people think none the less of anybody who is accused or suggested to be gay. The problem is, what the libel lawyers have done is they've twisted that, and so you now see claims which say, Ah, but everybody knows I've denied being gay, so I haven't taken offense at being called gay, but you've accused me of being a liar. And as a consequence of that, you've defamed me by implication that I'm a liar. And so what we're seeing are incredibly strained meanings put on words, tortured meanings, and this is becoming increasingly common in London and this is part of the process that is causing the problems that we're seeing.
NAVASKY: One of the marvelous things about libel law are the literary decisions. There was a great columnist in New York who many of you may remember, Murray Kempton, who would write these ornate sentences, and he was once sued for libel and the judge ruled that no one could understand what the guy was talking about, so it couldn't be libelous.
ABRAMS: One of the big differences between Mark's description of English law and the law here is not so much the definition of what is defamatory or not, but what I take to be a far greater willingness on the part of the courts over there to allow lawsuits about things that we would call matters of opinion, and therefore not actionable. So to say someone is ugly is such a subjective matter here, to say an actress is ugly. If John Simon lived in England, I mean, he couldn't have survived all these years. Things like that-to say that a restaurant makes terrible, terrible food that you cannot eat. One of my favorite cases here was a number of years ago in which a Chinese restaurant sued a French guide for saying that its pancakes were flat. And the proprietor of the Chinese restaurant came into court with his whole cooking gear. He brought the stove into court and said, It is defamatory to say of my restaurant that we make flat pancakes. I'll show you. This is how we make the pancakes. And he showed how the pancakes were made, to make the argument that they could not be flat because of some ingredient that he uses. He won the trial! And it was only when it got to the Court of Appeals that the court basically said, anything in a restaurant review is OK.
STEPHENS: You're absolutely right, Floyd, to pick that point up, because one of the key differences, for example, is satire. Satire is not a defense to libel in London. The libel courts in London have no sense of humor. As a consequence of that, if you're libel-vetting for a comedian, you have to be very, very careful. Because even if it's an obvious joke, even if everybody in the room laughs, it's still libelous, people can still sue and do.
NAVASKY: There was a restaurateur in New York called Toots Shor and he sued the owner of the Stork Club for saying, "I wish I had as much money as he owes." And the court said, in this credit economy, it's not libeling somebody to say they owe a lot of money.
AUDIENCE: Question for Mark. A few years ago there was a case that came down in England that some of us here thought was going to improve the situation in that it would create a defense other than provable truth in the court. It doesn't seem to have quite done the trick. I wish I could remember the name of the case or the doctrine.
NAVASKY: Do you remember the case, Mark?
STEPHENS: Yes I do, it involved Albert Reynolds, who was the "Taoiseach," or Prime Minister of Ireland, and he sued the Times, who'd published an article
entitled "Goodbye Gombeen Man,"which was defamatory of him. And what the court said is, sometimes things are so overwhelmingly of public interest that there's a risk you'll get it wrong, but as long as you've been responsible in the process of actually collecting and gathering and presenting the information, then in those circumstances we'll accept that risk as a society, and we'll say that even if you get it wrong, there will still be a defense. And it gave 10 illustrations of things you should do to be responsible: You should put the gravamen of the story to the target, you should give him an adequate opportunity to respond, you shouldn't sensationalize it, you should actually write it in as neutral terms as possible-for example, are you going to adopt the allegations that are being made?-and effectively what's happened is whilst this was meant to be some kind of holistic balancing exercise between the 10 factors, the courts of first instance basically set out these 10 things as 10 tripwires, and the author can trip at any one of them, and off goes the explosion of libel damages to your side and you're felled. And so this defense hasn't reached its potential.
I think we've had 47 cases-I've just finished a House of Lords case on this-where we've actually been through and analyzed it and the House of Lords appeared very unhappy with the way in which the law is developing. There were 47 cases that we found where this defense had been deployed, and it had been successful in one, since about 2000. So that isn't a great batting average, and as a consequence of that I think the law is about to be rewritten in that area.
AUDIENCE: In the Authors Guild there are a lot of freelance writers and independent journalists, and I'm wondering how easy it is to sue somebody. In fact, there doesn't have to be any serious grounds, you can use it as a weapon because you put them into a situation where they have to hire a lawyer, and lawyers are expensive. So if you're an independent journalist or a freelance journalist do you have any protection against any assets you might have, like if you own a coop or a condo, if you write under an LLC?
NAVASKY: Interesting question. If you're a freelance, independent writer but you incorporate yourself and take yourself to lunch on the company expense account, do you have any protection against being sued by someone you write about, and can they reach your condo or whatever it is that you may own?
AUDIENCE: Right, because even if you write for a major publication they can sue the publication.
NAVASKY: Right, they can sue the publication and the writer. And some publications protect their writers with their own libel insurance. Some provide counsel but their interests sometimes are different, so does anyone want to respond to that question? Do you have any protection if you incorporate yourself?
ABRAMS: The only thing I'd say is that it can't be a sort of transparent effort to avoid liability under all circumstances. My law firm is an LLP now, as most law firms are now. But what I can't answer is the real thrust of your question, as I take it to be: How much protection do you get by the sort of personal incorporation and the like? I just don't know. What about you Victor? Do you know?
NAVASKY: I don't know the answer but it's a good question.
STEPHENS: One of the things, moving away from the incorporation point, one of the things that I negotiated for the Writers Guild in the U.K., and started telling people to do, was to actually just write to the commissioner and say, That's fine, but my terms of business are that you will indemnify me in the event that I'm sued or you'll provide me with counsel in the event of a suit. And what I found was that the publishers were so lazy or disorganized, that actually a very good percentage of the journalists and independent authors managed to get protection on that basis.
McDERMOTT: It's still difficult to negotiate, but you wouldn't have to write under the byline of your LLC.
NAVASKY: I think Floyd's point though is well-taken. If they see it as a fraud on the court, that you're just trying to protect yourself and you've still libeled somebody, they might pierce the corporate veil, as it used to be known.
AUDIENCE: I have a question about the use of documents such as pretrial depositions. I write for a U.K. publication, and I quoted a pretrial deposition which is actually posted on the Internet, and the lawyers for the U.K. publication insisted on taking it out.
NAVASKY: Is that a legal matter, an editorial matter or some other kind of matter?
STEPHENS: One of the things is that lawyers in the U.K. talk an awful lot of bunkum about court documents. The basic rule about documents in our courts is that until they're read into the court record, they're not public. But that doesn't mean that you can't get hold of them. If one side or the other gives you their evidence-they can't give you the other side's evidence-but if they give you their evidence, then you're quite at liberty to do it. The other thing is that if you get it from a third party, an independent source, like the Internet, you're again perfectly entitled to say, And it's quoted on the Internet, rather than referring to a court record which might be under seal. So you can perfectly happily go ahead that way.
AUDIENCE: It's my understanding that you can't libel the dead in this country. Is this also true in the U.K.?
STEPHENS: You can't libel the dead in the U.K., and many people who wrote about the famous publisher Robert Maxwell breathed an enormous sigh of relief, and most of the more accurate biographies of him came out after his death, untimely as it was. But be careful, because in most of Europe you can libel the dead. In France, for example, you pass down the right to sue to your heirs, and in many Far Eastern jurisdictions as well, the same is true, because it's seen as not a personal action, you are besmirching the family's name and the family's honor, and therefore people feel almost obliged to take libel actions against you, andthese often are countries which have criminal libel suits, as Peter was talking about earlier.
AUDIENCE: I'm curious as to the role of Bonus Books in the Ehrenfeld case, if there was any role at all, and also was the book published in any foreign territory?
McDERMOTT: Bonus Books chose not to defend but also not to be a plaintiff here in the United States, and as far as I know the book has not been published anywhere other than the United States.
NAVASKY: I want to thank you. It's a great audience and a great panel.
