October 10 - Libel Tourism Is No Vacation for Americans


Commentary

Americans are increasingly being sued for libel in foreign countries whose laws are inconsistent with the freedom of speech granted by the U.S. Constitution. In addition to journalists and bloggers, flight crews, university researchers, analysts, business travelers and organizations that issue travel warnings, including corporate travel departments, are at growing risk.

The Free Speech Protection Act of 2009 (S.449) was introduced in the U.S. Senate in February 2009 in response to cases like the one involving Dr. Rachel Ehrenfeld, an academic who writes on terrorism and lectures all over the world. Her 2003 book, Funding Evil, triggered a lawsuit in the UK by a wealthy Saudi businessman who claimed he was libeled in the book. The differences in American and British libel laws are substantial. For example, UK defendants have to prove allegations are true; in contrast, in the U.S. plaintiffs must prove allegations are false. The Saudi won a judgment of $250,000 against Ehrenfeld; sales of her book were banned in the UK; and she can no longer travel there.

The Ehrenfeld suit has been just the most prominent of cases known under the general rubric "libel tourism" in which foreign nationals, claiming to be offended by something written in the U.S. by journalists, researchers or scientists, travel to pliant courts in third countries and obtain libel judgments against American defendants, even though the allegedly offensive speech would be fully protected under the U.S. Constitution. These suits can have a chilling effect on research and publishing, and on U.S. national security. The objective of S.449 is to ensure that libel judgments issued by foreign courts cannot be enforced in the U.S. unless our legal standards for libel are met.

A Threatening New Twist

U.S. business travel contributor for The New York Times Joe Sharkey covered a plane crash in Brazil. On September 29, 2006 there was a midair collision at 37,000 feet between a Brazilian Boeing 737 and a business jet, on which Sharkey was a passenger. All 154 on the 737 died; the seven crew and passengers on the business jet made an emergency landing in the jungle. Sharkey wrote about it once he returned home in the Times and conducted interviews in which he was critical of Brazil’s air traffic control system. He defended the American business-jet pilots who Brazil quickly charged with criminal negligence.

This September Sharkey was served with a complaint seeking $279,850 in damages. The plaintiff in the lawsuit is Brazilian Rosane Gutjhar who asserts that Sharkey offended her country’s dignity in his writings and interviews. Sharkey did not know her, or mention her name at any time. The plaintiff doesn't have to claim she was personally libeled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the honor of Brazil in any case involving a crime--the pilots, Joseph Lepore and Jan Paladino remain on criminal trial in Brazil, in absentia.

Gutjhar’s suit is based on Sharkey’s forceful reporting in the U.S. about Brazil's alleged cover-up of the causes of the crash. The accuracy of Sharkey’s commentary has never been challenged. Sharkey claims that nothing he said or was alleged to have said would constitute libel in the U.S., or even come close. S.449 would address libel judgments in foreign countries where the alleged offense would not meet U.S. standards for libel. With Sharkey’s case, it's clear the scope of what constitutes libel has been broadened to include insulting the dignity of a foreign country.

The near-perfect reach of the Internet has placed Americans, their free speech and their finances in harm’s way. At risk are travel managers issuing country-specific travel warnings, business travelers posting unfavorable trip reviews on social media sites, flight crews posting comments on industry bulletin boards or university researchers publishing negative reports. The Free Speech Protection Act of 2009 needs to be passed into law as soon as possible.

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