The lowest common denominator of speech

Martin Stabe points to another legal story that is getting too little coverage here, with links to a news story and a FindLaw analysis about a New York court refusing to protect an American author from a UK “libel tourism” judgment over a book that sold a mere 23 copies in England.

What’s profoundly frightening about this is that we in America could find ourselves subject to the UK’s libel and privacy laws, which throw free speech to the wolves in defense of privacy.

In other words, thanks to the internet, we could be subject to the lowest-common-denominator of protection of speech against libel actions.

One could imagine it would get even worse: Couldn’t we be subject to Islamic theocracies’ prohibitions against criticizing Muhammad or dictators’ laws against criticizing them. If other legal systems can reach out to us and our speech here then corporations — publishers, networks, service providers — chilling us.

  • In Common Law systems the “publication” is defined as the act of downloading into the browser. Thus blogs and online articles are published where the reader resides, not the server nor the author. So, yes, we are all subject to the libel laws of every other nation.

    Dow Jones lost a case (and then settled before appeal) on this very point in Australia.

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  • Robbins Mitchell

    So in other words if I were to write that Camilla Parker-Bowles (Porker-Bowels?)is a spent piece of used jet trash who looks like she was french kissed by a freight train and ought to be riding shotgun on the garbage truck,I could actually be extradited to the UK to stand trial for ‘libel’?….well,as they say,the truth is the best defense against a charge of libel….so let’s get this show on the road

  • Don’t read too much into this decision. She was in the wrong court. She should have been in Federal court, not NY State court.

  • Mark Steyn is at the center of another speech case in Canada, being summoned before two human rights panels with regard to a complaint about his bestselling book, equating it to hate speech. As Steyn puts it, “so I couldn’t care less about the verdict – except insofar as an acquittal would be more likely to bolster the cause of those who think it’s entirely reasonable for the state to serve as editor-in-chief of privately owned magazines. ”

    It is sad that countries who proudly proclaim themselves to be progressive are not that far behind the tyrants when it comes to restricting expression and speech.

  • In Common Law systems the “publication” is defined as the act of downloading into the browser.

    That’s like defining “publication” as the act of buying a book and taking it home.

  • >>In Common Law systems the “publication” is defined as the act of downloading into the browser.

    If that’s true, that’s an awful, wrongly decided precedent. EvilPundit correctly points out that dowloading into the browser is analogous to taking the book from the library or bookstore.

    The “correct”, {as in aligned with reality} definition of electronic publications would be analogous to “printed and bound”, which would be “uploaded into a publicly accessible server”. As a regulatory matter, you would still need to decide at which endpoint of the upload transaction the act of publication occurs at: the server, or the machine from which the author uploads?

    There are even more possible permutations of electronic publication to consider. Theoretically, an author could provide the public with read-only access to his working hard drive, allowing the public to grab copies of his works in progress the moment they are saved to disk.

    Another common practice to stage and QA content on servers before exposing the server to public traffic.

    What this leads to is an even more precise and useful definition of electronic publication, which would be “intentionally made publicly accessible”, which covers every scenario I can think of offhand. The point at which the work would be made publicly accessible would also be well defined.

  • George Dixon

    Given the liberal-fascist bent toward using foreign law precedents in deciding US law issues and the more disturbing proclivity to count any non-progressive (non-socialist) thought or comments as hate speech (see pc university speech rules), it is a trend that the ever antiAmerican left (ie: democrats) embraces.

    The left, democrats et al are becoming a clear and present danger to the USA’s future. They should be considered as such and dealt with.

  • Raoul Ortega

    You should consider this in light of the WTO ruling that Antigua can steal copywrited materials produced in the US because of a dispute over on-line gambling. (How or why the two are connected is beyond me.) So not only does the UK law get to control what does or doesn’t get published, but every little island in the Caribbean gets to set trade policy and domestic regulations. Welcome to the New World Order

  • Harry

    Free speech issues concern me, as I live and work outside the USA (in Latin America). Most people do not realize how much influence the USA wields in this one area. The more the USA restricts free speech, the more other countries justify their restrictions on free speech.

    Restricting free speech does verifiable damage to societies. Whether it is the free flow of scientific information, or political news, or economic information, people are hurt when they do not get the information they need. On the other hand, free speech in a free society has verifiable benefits.

    A couple of quick examples: How many people would have been saved if they had had an early warning on the tsunami in Indonesia? One single statement by Juan Carlos I of Spain caused an electoral defeat of Hugo Chavez’s attempt to discard the constitution of Venezuela.

  • Alan Dawson

    Mr Mitchell, the problem is that in the UK, the truth is NOT the best defence against a libel suit, and indeed can be entirely irrelevant. The only real defence is proof that you did not attempt to subject Ms Camilla to public ridicule. Truth may or may not help you, but in UK (and many other post-UK colonial) courts, truth may get little consideration.

    Indeed this is why rich Saudis sue Americans in the UK. If you wish to be tried under that system, fire away until you get Camilla’s notice.

  • Robbins – That’s more of an opinion than a libel. And does such a claim impinge of Camilla’s reputation. No. It is “Fair comment”

  • stubby

    Steven: Good point – I had wondered about that myself. Why’d she go to state court? Why did her attorney not pursue it in federal court?

  • Walt

    As a citizen and resident of the United States, I am not, and will not, be subject to the laws of any other nation.

  • penny

    The MSM, liberal fascists that most of them are, showed their true colors when they folded like cheap suits over the Mohammed Cartoon controversy. They could provide a mealy mouthed print narrative, but, were too terrified to provide readers with the actual cartoons to evaluate. It wasn’t out of respect for Mohammed as they’ve never had any for Christ, it was pure cowardliness. Any utterance of a commitment to free speech by the MSM is a sham.

    The reaction by the Canadian MSM to Mark Steyn’s predicament is pretty paltry. My guess is that as he is not a mainstream liberal it’s ok for him to be roadkill by the lame Canadian HRC that never should have considered the case to begin with.

  • Jim O’Sullivan

    Mr. Jarvis:
    With all due respect, the reason this decision is getting little coverage is because it warrants little coverage. If one calmly and carefully reads it ( – as opposed to the second-hand reports about it -one realizes that the opinion held nothing more than that a US court (in this case, a New York court) lacks jurisdiction over the defendant under these circumstances. Indeed, the court barely hid its frustration that it it was powerless to influence British libel law (which, I agree, is irrefutable evidence that its own subjects lack our freedom of speech), but was consoled by the fact that the libel tourist was unable to enforce his judgment in the UK.
    Ms. Ehrenfeld’s assets are in New York, I assume. To enforce the judgment, Mr. Mahfouz will have to subject himself to New York jurisdiction, at which point the New York courts will tell him exactly where he can stick it.
    And while I hesitate to contradict the distinguished Mr. Den Beste, I don’t see how an attempt to invoke federal jurisdiction would have done Ms. Ehrenfeld any good. I am not saying that I know for sure that it wouldn’t. If it would have, I’s like to know why.
    And for the benefit of some laypersons’ comments here: there is no extradition involved. This is a civil matter, not a criminal one.

  • Jim,
    Thanks very much for that.
    Questions: If Ms. Ehrenfeld appeared in the UK or had any assets in the UK (say, the sale of another book later) what would happen? Would she lose it because there was a default judgment?
    Could her publisher, similarly, be found at fault and find real assets and income in the UK at risk?
    And wouldn’t her choice have been to hire UK counsel and go to the expense of a UK trial to protect herself? Couldn’t a pubilsher find itself chilled by actions in the UK?
    Perhaps Mr. Mahfouz will be frustrated getting funds from her.
    But if the goal of the libel tourist is to harass or chill, then perhaps the goal is thus well met.

  • bobby B

    “As a citizen and resident of the United States, I am not, and will not, be subject to the laws of any other nation.”

    Sure you are. Travel to some other nation, or engage in commerce with someone in some other nation, and you may find that you’ve impliedly accepted the jurisdiction of the laws of that other nation. Then, when a foreign judgment is registered against you here, you’ll find that we as a nation have entered into treaties which make those judgments enforceable – in some cases, without giving you any right to re-argue the legal case which you lost, and only allowing you, as a defense, to prove you’re not the person named in the judgment.

  • Jeff:
    Don’t get me wrong. I share your frustratration that Britain, supposedly a modern democracy, shows so little respect for the freedoms of speech and the press that Ms. Ehrenfeld’s work so surely deserves. Yes, she may no longer choose to live in the UK, and her publisher had better be sure it doesn’t stash any recoverable assets there. Yes, this has a chilling effect, and yes, I hate that. But British “subjects” are the victims of this disgrace to an extent that makes me appreciate all the more that I am not an American “subject.”

  • Jim

    With all due respect to Mr. O’Sullivan, Mr. Den Beste and others, Ms. Ehrenfeld did invoke federal jurisdiction. The New York Court of Appeals got involved in the matter because the Second Circuit asked it to decide whether New York’s long arm statute conferred personal jurisdiction over the rich Saudi on the basis of his contacts with the state arising out of the English lawsuit. The question had already been answered in the negative by the Federal District Court and that decision was appealed to the Second Circuit. The Second Circuit then certified the question regarding interpretation of a New York state law to that state’s highest court. Thus, the only reason the state court was involved at all was because the federal court requested that it interpret a state law. That being said, I do agree with Mr. O’Sullivan that the decision does not warrant substantial news coverage because it is solely concerned with whether the state long arm statute conferred personal jurisdiction over a particular foreign defendant in New York. It has nothing whatsoever to do with libel law or free speech.

  • Greg Toombs

    Given the apparent interpretation of the rules by the court, perhaps if the last 8 years’ worth of Bush Derangement Syndrome attack rantings from fringe democrat/MSM fools were shipped up to Canada and/or over to England, followed up by many right-wing cabal-funded libel suits filed in each venue.

    That might help create an alliance of strange bedfellows in defense of truly fee speech.

    (Words of wisdom: “Never argue in public with a fool. Onlookers may not be able to tell the difference.” Mark Twain)

  • MadMan

    We are already experiencing the lowest commom denominator of free speech in some ways:
    Publish a cartoon in Denmark that certain people might not like and you won’t just be sued… You’ll be credibly threatened with the death penalty for insulting god’s messenger.
    The sad part is they now learned to use western institutions against us.

  • Jim:
    What you say (1) is quite right; and (2) brings up a point of law of interest only to lawyers like us. In other words, what I meant by “federal jurisdiction” was a basis for jurisdiction in federal court other than diversity jurisdiction, i.e., suing someone from a place other than plaintiff’s state in federal court under state law, under that state’s rules of personal jurisdiction. In other words, there was no “federal question” involved, procedurally or substantively. Sorry if I failed to make myself clearly understood.

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  • Rob in Austin Texas

    A couple of years ago a law professor at an attorney conference mentioned that Dow Jones, I think, was being sued in Australia for libel by a wealthy Aussie businessman over remarks posted by a Dow Jones company on the Internet. A major problem for Dow Jones is that it is easier to win such cases in English common law nations plus Dow Jones has significant financial connections in Australia. Thus, if you have someone by the testicals their heart is sure to follow.

    I may have some details here incorrect but just wish to point out the problem of libel and slander and the Internet tool and the attendant problem of jurisdiction to consider claims along with rules of procedure, rules of evidence, etc.

    If one has property interests located in the undesired jurisdiction it is even more dangerous to ignore suits. It is risky even if no assets exist there but if there are assets there, get out the checkbook.

    Of course, the problem runs in both directions. Suing in the USA will of course vex many defendants.

    If in USA, federal court?, state court? which state? Lots of decisions.

    It will take years to achive treaties that are fair to all.

  • Jim

    Apologies to Jim O’Sullivan and any other posters who were referring to the lack of a federal question rather than lack of federal jurisdiction in general.

  • Don’t get distracted by “publication.” Under U.S. case law, if a statement is libelous — that is, false as to a matter of fact and damaging — making it in writing to even a single other person is “publication.” You get no freebies for being short of “printed and bound” or “before being released to the public.”

  • “The “correct”, {as in aligned with reality} definition of electronic publications would be analogous to “printed and bound”, which would be “uploaded into a publicly accessible server”. As a regulatory matter, you would still need to decide at which endpoint of the upload transaction the act of publication occurs at: the server, or the machine from which the author uploads?”

    That may or may not be so but it isn’t the way the law works as is. Anoher example: in UK law, the downloading of child pornography is the “making” of such. There used to be one copy on the server: now there’s one there and one in your bowser. So you have made the image.

    Same general principle, that the making, or the libel, the publication, is happening in the browser.

    There is however a certain amusement at some of the points being made here about extra-territoriality. Three British bankers were recently extradited to the US for something which, if it was a crime, was one committed in the UK. And thus something that should be tried there or nowhere.

    And, of course, we’ve just had this interesting argument put forward in the UK:
    (from here

    “AMERICA has told Britain that it can “kidnap” British citizens if they are wanted for crimes in the United States.

    A senior lawyer for the American government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under American law because the US Supreme Court has sanctioned it. “

  • Ludwig

    This makes me down with Rothbard’s no-libel absolute free speech (i.e. no ‘property’ in other people’s opinions).

    Also, no extradition except for things that are also crimes in the extraditing jurisdiction.

  • In all of this the severity of the libel laws in the UK tends to get lost. As Alan Dawson points out above even the defense of ‘truth’ may do you more harm than good.

    Which, in turn, underscores the chilling effect of stringent libel laws where the standard to be met is the possibility of subjecting someone to public ridicule and the internet makes world wide publication the default.

    Rachel Ehrenfeld and her publishers might have been wise to contest the matter in England – apparently they let the matter go by default – but there is every chance that they would not have won and would have been faced with costs.

    However, as Tim points out, England is hardly alone in asserting the jurisdiction of its courts over citizens of other nations. After 9/11 various Americans (not unreasonably) looked to follow the money and tried to use American Courts to track the al Qaeda backers and hit them in the pocket book. The British bankers were another example and elements of the Conrad Black case were entirely Canadian but used to prove “obstruction of justice” in an American Courtroom.

    And, as commentors have pointed out above, as “hate speech” laws begin to gain currency material protected by the 1st Amendment in the US may run afoul of Canadian or European law. V-Dare beware.

    Libel law – and the entire law of defamation – was, like copyright, conceived in a world of huge presses and limited distribution. The PC and the ‘net has turned that on its head and it is past time for free speech advocates to press for changes to the law which recognize that reality.

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