The Globalization of Censorship

How are a few extraordinarily wealthy individuals from the most senior ranks of the world's most brutally repressive societies succeeding in muzzling free speech on major international issues? The unlikely answer is, simply, by "visiting" London.

In a dangerous twist of globalization, these litigants are taking the illiberal standards of environments hostile to free expression and projecting them into those countries that permit free and open inquiry. And more disturbing is that the preferred tool they are using to stifle the work of investigative journalists, researchers and publishers is English law.

An increasing number of well-heeled litigants – libel tourists – are using England's plaintiff-friendly libel laws to silence critics. Unlike American law, which sets a high bar for libel lawsuits, English common law puts the burden of proof on the defendant, who can be hit with enormous damages and legal costs.

To make matters worse, English courts have demonstrated a tendency to accept jurisdiction in these cases even when the plaintiff's connection to England appears wafer-thin. As a result, London has earned the dubious distinction of "libel capital of the world."

The most aggressive use of English law for suppressing information on corruption and international security matters is by plaintiffs from settings where free expression is most limited. Analysis by Freedom House shows that the key group of libel tourists generating the most censorious impact on such public policy issues comes from countries rated "Not Free" by Freedom House – those that do not afford fundamental safeguards and guarantees for free expression.

The former Soviet states, among the world's most inhospitable to free expression, are one breeding ground for libel tourists (Ten of 12 former Soviet republics are rated "Not Free" in Freedom House's annual global survey of media independence).

Alisher Usmanov, a Kremlin-friendly, Uzbek-born metals magnate, used English law to silence the voice of Craig Murray, Britain's former ambassador to Uzbekistan. Murray, an outspoken critic of his own government's policies, wrote in his memoirs about Usmanov's business activities. Usmanov whose net worth is estimated at nearly $3 billion, hired Schillings, one of London's most feared defamation firms, which convinced the Internet Service Provider hosting Murray's blog, Fasthosts, to shut down his Web site.

The exiled Russian oligarch Boris Berezovsky has used England's libel laws to take on a range of critics, including Forbes magazine. Berezovsky was party to the watershed suit in the late 1990s against Forbes that, among other things, signaled the critical role digital media would come to play in the libel tourism game. At the time, the House of Lords, Britain's highest court, cited Forbes' Internet readership as a crucial part of its argument on jurisdiction.

The Middle East/North Africa region also represents fertile terrain producing libel tourists. (Of the 19 countries of the Mideast/North Africa region evaluated in Freedom House's annual global survey of media independence, 15 are rated "Not Free.")

The most prolific of the libel tourists is Sheik Khalid bin Mahfouz, a billionaire Saudi businessman. The former chairman of Saudi Arabia's largest bank, bin Mahfouz has filed more than 30 suits in London against authors and publishers in the United States and Europe, and threatened a raft of others with legal action. In a case that has attracted significant notoriety, bin Mahfouz sued Rachel Ehrenfeld, author of "Funding Evil: How Terrorism is Financed and How to Stop It." The English courts accepted the case on the basis of 23 books purchased online in Britain and ordered Ehrenfeld to pay substantial damages and legal costs to bin Mahfouz.

With such harsh judgments as precedent, the very threat of costly suits is achieving the desired effect. Cambridge University Press pulped copies of "Alms for Jihad: Charities and Terrorism in the Islamic World" by J. Millard Burr and Robert O. Collins after the threat of a suit.

Unrestricted universal access to information via the Internet is a good thing. But libel tourists have seized upon the ubiquity of access to published works in the Internet age to transform England's libel laws into mechanism for enforcing global censorship.

The London-based defense attorney Mark Stephens (who represents Ehrenfeld and other libel tourism defendants) points out that "the lawsuits, and threats of suits, are silencing important voices and protecting the powerful from public scrutiny."

The chilling effect of English libel laws within Britain is obvious. Yet their multiplier effect in globally suppressing information on critical international security issues has far more dangerous implications.

Given the clear threat to free expression, measures have been taken in the United States to protect free speech threatened by libel tourism. New York State in May 2007 enacted a law prohibiting the enforcement of foreign libel judgments from countries with a weaker legal standard for libel than in the United States. Illinois has recently passed similar legislation. The U.S. Congress is now debating whether to take broader action extending protections at the federal level.

It is both disappointing and dangerous that no such action is on the horizon in England, which in the meantime makes available a devastatingly potent legal weapon to the adversaries of free expression to silence or cow anyone who dares criticize them.