Hiding behind foreign defamation laws

Arlen Specter and Joe Lieberman usually aren't the greatest senators around, but at least they're helping expose a serious threat to free speech.

British defamation laws are slightly different from those in America. In the U.S. and A., the burden of proof is on the plaintiff who claims they're being libeled. In England, the burden is on the defendant who is accused of libel.

Just a slight difference in the law. It might not be a big deal for Americans - except for the fact that the law is now being abused to go after American writers.

Recently a book came out accusing a Saudi banker of funding Osama bin Laden. The book was by an American author, and it was published in America by an American publisher. But because it sold 23 copies in England, the banker who was accused of terrorist ties was able to file a libel suit in a British court.

You read that right: Neither the plaintiff nor the defendant had any connections to Britain that I can see, and the book's only British link is that it happened to sell 23 copies there. But the banker was able to sue in England just because of the few copies that were sold there.

Because the author didn't fly all the way to England to answer the lawsuit, she lost by default and had to pay $250,000.

Quite frankly, I don't know whether the plaintiff donated to terrorists or not. But his lawsuit seems to have pushed the marketplace of ideas down a slippery slope. 'House Of Bush, House Of Saud', an American bestseller that links the rise of terrorism to financial dealings between Saudi royals and the Bush crime family, saw its British release canceled because of lawsuit threats.

The publisher of another book requested that all libraries in Britain destroy their copies of the volume in an effort to avoid legal action.

These suits are more or less SLAPP suits. It's not as if American courts aren't gummed up by SLAPP actions too, but English law makes it more likely for plaintiffs in these cases to prevail.

I'm a writer. I've had a book published by an indie publisher, and I support myself primarily by blogging. I've always wanted to see jolly old England, but I'll be damned if I'm going to be dragged all the way across the ocean to answer a SLAPP suit from someone who takes offense at something I said.

If my former high school disagrees with my truthful claim in my book that the school intentionally encouraged bullying, the school can sue in Britain if I sold even one copy there - even though I've never left North America and my book was published by an American firm. This despite the fact that my charge against the school is true. Under American law, the school would have to prove I'm lying; under English law, I'd have to prove I'm telling the truth.

And I could prove I'm telling the truth - except who wants to take the time to fly all the way to Britain to serve as my witness?

My former school could even sue over this blog entry if even one British citizen reads this blog.

But there's hope. The state of New York recently passed a law that says libel judgments by foreign courts can't be enforced unless the material in question would be considered defamatory under American law.

Now there's a bipartisan bill in Congress to make this a federal law. If it passes, American writers will be protected, because U.S. courts won't be able to enforce foreign libel judgments unless U.S. law deems the writings defamatory. This bill also says American writers can countersue and receive damages if the overseas suit is part of a scheme to muzzle free speech.

Bush will probably just veto the bill, but at least the bill is a start.

I'm all for laws protecting folks from defamation. After the Internet campaign against me in the '90s, nobody knows this better than I do. The new bill aims to protect only the free flow of ideas, not thoughtless clods who intentionally spread lies.

(Source: http://online.wsj.com/article/SB121599561708449643.html)