The Washington Post | By Bruce D. Brown | April 23, 2000
Until recently, Bethesda author Humayun Mirza never had to think about international libel law. A financier by trade, Mirza spent three decades working at the World Bank in Washington. He only turned to writing in retirement, devoting years to a biography of his father, the first president of Pakistan. Last November, his first book, "From Plassey to Pakistan: The Family History of Iskander Mirza," was published by the University Press of America.
But early this month, Mirza received a startling letter from a British law firm.
His father's second wife, who lives in London, was threatening Mirza and University Press, a client of my law firm, with libel litigation. She was unhappy with the book's depiction of her influence on his father's political fortunes. And she was considering filing suit not in the United States, where Mirza and his publisher would be protected by the First Amendment, but in England, where the book had recently been distributed--and where libel laws are notoriously friendly to plaintiffs. This might have seemed like a stretch--after all, Mirza was writing in America mostly about events in Pakistan, and his publisher is located in Maryland. But Mirza had heard about the high-profile defamation lawsuit brought by controversial historian David Irving against author Deborah Lipstadt, a professor at Emory University in Atlanta who called Irving a "Holocaust denier." Lipstadt was vindicated; but Mirza--and others potentially in his shoes--are right to be worried by the spectacle of a 10-week libel trial in which an American defendant essentially had to prove the reality of the Holocaust in a London courtroom.
In an era of global publishing, particularly over the Internet, the hazards of foreign speech and defamation laws are very much an American problem. And they have the potential to affect a wide range of defendants--from large media corporations to individuals clicking and clacking into cyberspace from their home PCs.
Americans may not always like how the First Amendment protects others (their neighbors, TV tabloids, Matt Drudge), but they care deeply about their right to free expression. They may take it for granted that this right will follow along with the words and images that they now send effortlessly (and sometimes inadvertently) across national borders. They shouldn't. When the U.S. Supreme Court began to reform the libel laws radically in 1964 with New York Times Co. v. Sullivan (which set a high bar for public officials seeking damages from those they thought had defamed them), many hoped that Sullivan-style protections would catch on around the world. But American libel law has not been a very successful export.
For publications such as Time magazine and the International Herald Tribune that have long had a global presence, brushes with foreign media laws have come with the territory. Time's hard-fought victory in New York over Ariel Sharon was one of the best-known libel cases of the 1980s (Time made erroneous statements regarding the extent of Sharon's connection to a 1982 massacre of Palestinians, but a jury found it was done without malice); what is less familiar is that the former Israeli defense minister cornered Time into a settlement in Tel Aviv, where Israel's defamation laws gave him leverage he didn't have in the United States.
The Herald Tribune had a series of high-profile libel bouts with Singapore government officials over two opinion pieces in the 1990s. The paper lost one case and settled another, resulting in hundreds of thousands of dollars in damages and payments. (The Herald Tribune, which is based in Paris, is jointly owned by The Washington Post and the New York Times.)
But the boom in global and Internet publishing threatens to expose American publishers on a far broader and less predictable scale. Gone are the days when "publishing" in a foreign country took a conscious decision such as stocking books in shops on Charing Cross Road or selling newspapers along the Champs Elyses. Posting a news article or a message on a U.S. Web site, thereby making it instantly accessible to all those eyeballs around the globe, may now be enough to create an argument for jurisdiction in far-off foreign courts.
The Internet creates perplexing problems because of both its immediacy and its reach. For competitive U.S. media organizations, for example, the speed with which they must put news on the Internet makes editing copy to conform with overseas laws all but impossible. Unless we want the news to be self-censored at home, we'll have to hope that any offending speech won't be punished abroad. As for the reach of the Internet, it can transform chats among news groupies, individual Web sites, indeed almost any online communication into international bulletin boards with international implications.
A Cornell University graduate student learned this lesson the hard way. In 1997, Michael Dolenga was named in a libel lawsuit in London filed by English scientist Laurence Godfrey. According to Godfrey, Dolenga and another graduate student had posted defamatory messages about Godfrey on Usenet discussion groups, some of which were of a "highly personal" nature.
"He should have sued me in New York," said Dolenga at the time. "That's where I was living. I think a person should be subject to the laws where they're living." When asked about the fairness of bringing his claims in England, Godfrey--who has filed numerous related suits there--did not budge. "I don't think that if the situation were reversed, American courts would have any trouble at all with an American suing over some message that originated in England and was published in the States," Godfrey was quoted as saying in the New York Times.
Libel, it turns out, is only one of many threats foreign laws may present to expression carried on the Internet. A crazy quilt of speech restrictions is waiting for the unwary who venture online. These laws don't punish falsehoods; they punish speech that a particular government has deemed, for any reason, to be out of bounds.
In the Netherlands, for example, it is illegal to offend members of the royal family. Germany, France, Poland, Spain and Canada all have laws prohibiting the expression of racial hatred, desecration of the memory of Nazi victims or Holocaust denial. (Actually, for a free-speech advocate, having the awful oeuvre of David Irving publicly discredited is a far better solution than criminalizing his rantings.) South Korea authorizes prison terms for writings that "praise" North Korea. And these are the democracies. The possibility of action is not merely speculative: The Internet portal Yahoo was sued this month in France for its online auctions of Nazi memorabilia.
In this emerging area of international regulation, however, it is the libel laws of Britain that are still probably American writers' greatest worry--particularly because of the shared language, literature and, to some extent, culture. The fact that the annual "50-State Survey" of libel laws put out by the New York-based Libel Defense Resource Center includes this year, for the first time, a section on British defamation law speaks volumes.
In fact, Deborah Lipstadt may not have known it, but she has had considerable compatriot company with her in London lately. In March, Forbes took a libel appeal to the House of Lords, and earlier this month a London jury socked the New York Times and the Herald Tribune with a libel verdict for writing that celebrity chef Marco Pierre White, who runs several restaurants in England, had used drugs in the past. Other U.S. defendants in British courts over recent years have included Time, the New Republic and investigative reporter Seymour Hersh, who was sued by British media baron Robert Maxwell in a case not settled until two years after the latter's 1991 death.
The Forbes case could provide an opportunity for Britain's highest court to curtail "forum shopping" by plaintiffs seeking a friendly judicial venue. The Law Lords, a panel of the House of Lords, is considering the case of Russian tycoon Boris Berezovsky, who took issue with the magazine's characterization of him in a 1996 profile and sued the magazine in England, where Forbes's circulation is 2,000 copies, not the United States, where it sells nearly 800,000 copies. The magazine argued that the United Kingdom was not the appropriate place to try a claim brought by a Russian citizen against an American publication, but a U.K. appellate court disagreed. A reversal by the Lords could make it more difficult to haul U.S. citizens into Britain's libel-friendly terrain.
Of course, an American who loses a libel case in England but has no assets there may not need any help from the House of Lords. In practical terms, what sometimes has happened--for example in the case of the English scientist Godfrey suing the Cornell student Dolenga--is that the American defendant doesn't show up to defend, and the plaintiff wins a default judgment, which in the absence of assets cannot be enforced. Or the foreign plaintiff can try to get his judgment enforced in the United States. The tactic may not be successful--Maryland's highest court refused to recognize a British libel judgment just a few years ago--but it could tie up American defendants in lengthy court battles here.
The world is shrinking, to be sure, yet the divide between British and American libel law is not. Last October, the House of Lords reaffirmed the English rejection of the Sullivan standard. "The solution preferred in one country may not be best suited to another country," wrote Lord Nicholls of Birkenhead in a libel action brought by former Irish prime minister Albert Reynolds against London's Sunday Times.
That statement reflects the clarity of a different publishing era. If the "solution" of one nation could be so easily contained within its borders, U.S. citizens and news organizations would not have to worry, as they increasingly do today, about joining Deborah Lipstadt before a foreign tribunal. Since 1735, when a colonial New York court acquitted John Peter Zenger of libeling the British-appointed governor, the American response to overseas libel laws that we don't like has been to turn our backs on them. It has been enough for us to forge our own law for our own courts. That strategy may no longer work.
Bruce Brown is a Washington attorney specializing in First Amendment law.The Washington Post:
