Libel Tourism: Why Librarians Should Care

October 26, 2009

The global exchange and purchase of information via the internet has undoubtedly enriched scholarly communication and library collections. But all sorts of legal and cultural barriers confront information crossing national borders. Consider a book published in the United States and sold on a global website. Persons or groups who believe that this book has defamed or inaccurately portrayed them can sue the author or publisher in any country where the book can be purchased-and where the libel laws might differ from those in the United States. This sort of legal action, known as "libel tourism," has become an increasing threat to academic and intellectual freedom.

In the United States authors and publishers are generally protected by the First Amendment unless the plaintiff can prove that the book's defamation or inaccuracies have malicious intent; as a result many aggrieved parties have turned to the British courts, where the rigorous libel law is far less friendly to authors and publishers. Imagine the shock when librarians received notice in spring 2007 from Britain's much-revered Cambridge University Press (CUP) that they should remove from circulation the publisher's 2006 book Alms for Jihad: Charity and Terrorism in the Islamic World by U.S. authors J. Millard Burr and Robert O. Collins. Saudi businessman Sheikh Khalid Bin Mahfouz had filed a libel action lawsuit in the U.K. against CUP claiming the authors accused him—wrongfully and without evidence—of funding al-Qaeda.

What happened next is complex but not so unusual. Jeffrey A. Stern of the Los Angeles-based publisher Bonus Books sharply criticized Cambridge University Press's action March 8, 2007, on thebookseller.com website: "Clearly [CUP] must have supported the material before they agreed to a publishing deal with Collins and Burr. It's only now, after being slapped with a suit in the U.K. by the likes of Bin Mahfouz, that they have suddenly decided to concede to the demands to pull the book. What's worse, they have not only agreed to pay damages but they have even gone so far as to issue a formal apology on their website, completely discrediting their authors as having made 'defamatory allegations' to which there was 'no truth whatsoever.'"

Kevin Taylor, intellectual property director of Cambridge University Press, responded on September 8, 2007, that by the time CUP received notice of the pending legal action in March 2007, most of the copies of Alms had been sold. The publisher said it had not realized that the book contained defamatory statements about Bin Mahfouz. In the U.K., sources proven to be false and/or defamatory are subject to British libel law. Therefore, upon legal advice, CUP decided to pulp the remaining copies and notify libraries to remove the book from circulation. As Taylor stated: "Cambridge University Press is not in business to do ideological battle but to act responsibly as a publisher of scholarly material. It would not be a responsible use of our resources, nor in the interests of any of our scholarly authors, to attempt to defend a legal action in circumstances such as the above. Our decision to withdraw the book may indeed have been 'un-American' in Jeffrey A Stern's sense of that term, but we are a global publisher with a duty to observe the laws of many different countries. Stern may have issues with English libel law, but he should not criticize a publisher for upholding its responsibility to stay within that law." Cambridge University Press removed the book from its list in August 2007 and reportedly pulped the remaining copies in its possession.

Such actions should give librarians pause-especially those in libraries committed to collecting research materials for posterity. Alms for Jihad has essentially disappeared from the Cambridge University Press website as if it never existed. The book's front cover image still appears in the Wikipedia entry on the book, although the article's external web links to CUP are dead. (However, there is a live link leading to a PDF of the book's contents on the Wikileaks website, which publishes anonymous submissions of sensitive governmental, corporate, or religious documents.) Fortunately, a quick search of OCLC's WorldCat shows that 351 libraries worldwide created holdings for this book, so we can hope that most have retained it. And in a Google Books world, can content ever be irrevocably "pulped"? Yale University Press fought a similar case and won. In August 2007, Matthew Levitt's 2006 book Hamas: Politics, Charity, and Terrorism in the Service of Jihad was targeted by KinderUSA, a charity accused in the book of funding terrorism.

According to an August 16, 2007 article in Inside Higher Education, Yale not only defended the book and its author, but filed a SLAPP (strategic lawsuit against public participation) suit seeking to quash KinderUSA's suit. (Ironically, this type of lawsuit can also chill speech when used against authors or groups that can't afford to pay damages.) Importantly, Yale noted that the book had been subjected to peer review and copyediting, and the press defended the author's claim that he had fact-checked his book.

There have been many similar lawsuits. For example, the June 18, 2008, Chronicle of Higher Education reported that the U.S. based College Art Association was forced to settle when a professor of art history was angered over a book review in CAA's Art Journal. Palestinian Art (Reaktion Books, 2006), by Professor Gannit Ankori of Hebrew University of Jerusalem, was reviewed unfavorably by Joseph Massad, a professor at Columbia University. In his review, Massad claimed that Professor Ankori did not credit her sources properly.

In February 2008 Ankori's U.K. attorneys threatened to sue, and the College Art Association, calculating that it could not afford to lose, paid $75,000 in damages. In a letter to its members, the association stated that "the review contained factual errors and certain unfounded assertions. . . . CAA has apologized to Professor Ankori and has agreed to a settlement." CAA asked institutional subscribers to "withdraw from any form of circulation" the questionable portions of the review. A CAA official noted that "we have to be aware of the variety of scholarly institutions and cultures, and legal cultures, in other countries." Again, librarians need to ponder whether, in the age of e-journals, content can ever be fully removed from circulation.

Terrorist tangle

I have saved the most influential case for last, because its impact promises to bring real change and protection to the United States higher education traditions of research, scholarship, and academic freedom. Consider Rachel Ehrenfeld's 2003 book Funding Evil: How Terrorism Is Financed and How to Stop It (Bonus Books), which, like Alms, asserts that Bin Mahfouz finances Islamist terrorist groups. Speaking movingly at ALA's 2008 Annual Conference in Anaheim, Ehrenfeld reminded us that the struggle against libel tourism is not over. She was targeted for a lawsuit in 2004 by Bin Mahfouz and a U.K. court ordered her to pay £10,000 to each plaintiff in the case.

Rachel Ehrenfeld decided to fight back. Despite numerous threats to her person, she brought to bear her expertise in the field of financing terrorism and the support of the organization she directs, the American Center for Democracy. Although her countersuit to prevent the judgment against her from being enforced in the United States failed, the visibility of her case paved the way for legislative action: In March 2008 the New York State legislature passed the Libel Terrorism Protection Act (the word "terrorism" appears to be a misnomer) by a unanimous vote.

This law (sometimes called "Rachel's Law") enables New York courts to claim jurisdiction over anyone who attempts to obtain a libel judgment over a New York State publisher or author. Only those judgments passing U.S. and New York State constitutional muster will be enforced. A similar law has been passed in Illinois and legislation is pending in several other states.

Ehrenfeld's case brought international attention to libel tourism. An article in the April 2, 2008, Financial Times
quoted libel barrister Hugh Tomlinson denouncing what he viewed as a ridiculous libel case in the British courts. Tomlinson characterized the case, involving a Ukrainian energy tycoon suing two Ukrainian internet journals, as "a Ukrainian attacked in a Ukrainian newspaper in Ukrainian in Ukraine." The article warns that despite the New York law, " Libel judgments in countries with tight rules are likely to continue echoing around the world. They are a chastening reminder to writers that the ease of electronic publication and retailing has made defamation a global business."

Blame the Brits

The January 8, 2009, Economist asked, "Are English courts stifling free speech around the world?" The article notes that a London lawyer, Mark Stephens, is taking the libel tourism problem to the European Court of Human Rights with the argument that British libel damages are disproportionate: "If you get only around £42,000 for losing an eye, why should you get that much or more from someone writing something nasty about you?" he asks.

The U.S. House of Representatives passed a bipartisan measure, H.R. 2765, June 15. The bill: 1) authorizes nonenforcement of the foreign judgment if it violates U.S. Constitutional due process; 2) protects internet service providers if the foreign judgment is inconsistent with the Communications Decency Act, Section 230; and 3) authorizes awarding attorney fees to a party who successfully opposes enforcement.

However, there is no provision for a damages cause of action-in other words, there is no way for the plaintiff to countersue. For that reason, the Association of American Publishers promptly announced it would not support the bill, because it does not provide for such a remedy on behalf of U.S. authors and publishers faced with a libel suit. The group is calling for a stronger bill incorporating the original as supported by Rep. Peter King (R-N.Y.) and Senators Arlen Specter (D-Pa.) and Joseph Lieberman (IConn.).

Libel tourism serves to remind librarians of some core principles of the U.S. library profession and the nature of scholarly communication in a free society.

Professional principles

First, the landmark 1964 Supreme Court case New York Times v. Sullivan protects published works, even if they contain factual errors, unless there is malicious intent. In the case of academic publishing, the responsibility of disseminating evidence-based content lies with the academy, through such mechanisms as peer review, academic reputation, communication among scholars, and the tenure process. Books for the general public are edited and receive attention through traditional media reviews, and more recently through discourse on the newer social networks.

Second, on a practical level, what are libraries going to do with books like Alms for Jihad and Funding Terrorism?
Will we keep them on the shelf if a faculty member denounces their political bias? Will we move them to noncirculating status in order to prevent them from being stolen by community pressure groups? Will we decide to resort to interlibrary loan in order to avoid the purchasing decision and hopefully the controversy? Third, the American Library Association and its divisions defend freedom of expression through its Office for Intellectual Freedom and the documents in the Intellectual Freedom Manual, which contains all the core principles as they have evolved over time. On July 31, 2008, ALA endorsed the Free Speech Protection Act of 2008 (S. 2977), aimed at stemming libel tourism, and placed H.R. 2765 on its list of legislation it is watching.

In its February 12, 2009, statement to the U.S. House of Representatives Subcommittee on Commercial and Administrative Law, the AAP characterized the threat of libel suits as "the proverbial Sword of Damocles [that] can inflict ongoing harm in the form of injury to reputation, impairment of credit rating, lost publishing opportunities, and speech chilled by fear of retribution." The libel tourism issue threatens to grow, as scholarly researchers continue to engage each other across national borders via the internet. Not only do libel and defamation laws differ dramatically from country to country, but so do cultural norms about what is considered to be evidence-based research and what is "responsible" publishing.

Librarians must engage in these complex dilemmas if we have any hope of defending academic and intellectual freedom as we now know it.

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