Libel Litigation Threatens U.S. Travelers
Americans are increasingly being sued for libel in foreign countries whose laws are inconsistent with the freedom of speech granted by the U.S. Constitution, and industry association Business Travel Coalition (BTC) is fighting back, urging the Senate to pass the Free Speech Protection Act of 2009, which was introduced almost a year ago. At risk are not only journalists, bloggers, flight crews, university researchers, analysts and members of Congress, but business travelers and organizations that issue travel warnings—including corporate travel departments.
The Free Speech Protection Act, which enjoys broad bipartisan support, was introduced in the U.S. Senate in February in response to cases such as the one involving Dr. Rachel Ehrenfeld, an academic who writes on terrorism and lectures all over the world. Her 2003 book, Funding Evil, triggered a lawsuit in the U.K. by a wealthy Saudi businessman who claimed he was libeled in the book. The differences in American and British libel laws are substantial. U.K. defendants have to prove that their allegations are true; U.S. plaintiffs must prove allegations are false. The Saudi won a judgment of US$250,000 against Ehrenfeld, sales of her book were banned in the UK and she can no longer travel there.
The Ehrenfeld suit has been just the most prominent of cases known under the general rubric "libel tourism" in which foreign nationals, claiming to be offended by something written in the U.S. by journalists, researchers or scientists, travel to pliant courts in third countries and obtain libel judgments against American defendants, even though the allegedly offensive speech would be fully protected under the U.S. Constitution. These suits can have a chilling and negative effect on research and publishing, and on U.S. national and global security. The objective of the Senate act is to ensure that libel judgments issued by foreign courts cannot be enforced in the U.S. unless our legal standards for libel are met.
A Threatening New Twist
U.S. business-travel contributor for
The New York Times Joe Sharkey covered a plane crash in Brazil. On Sept. 29, 2006 there was a midair collision at 37,000 feet between a Brazilian Boeing 737 and a business jet, on which Sharkey was a passenger. All 154 on the 737 died; the seven crew and passengers on the business jet made an emergency landing in the jungle. Sharkey wrote about it once he returned home in the
Times and conducted interviews in which he was critical of Brazil’s air traffic control system. He defended the American business-jet pilots, who Brazil charged with criminal negligence.
This September, Sharkey was served with a complaint seeking $279,850 in damages. The plaintiff in the lawsuit is Brazilian Rosane Gutjhar who asserts that Sharkey offended her country’s dignity in his writings and interviews. Sharkey did not know her, nor has he mentioned her name at any time. The plaintiff doesn't have to claim she was personally libeled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the honor of Brazil in any case involving a crime—the pilots, Joseph Lepore and Jan Paladino, remain on criminal trial in Brazil, in absentia.
BTC Chairman Kevin Mitchell says the near-perfect reach of the Internet has placed Americans in harm’s way. At risk are travel managers issuing country-specific travel warnings, business travelers posting unfavorable trip reviews on social media sites, flight crews commenting on industry bulletin boards, university researchers publishing negative reports or members of Congress authoring unflattering opinion pieces about a particular country or leader.
Read more about the problem in this Dec. 21
Wall Street Journal opinion piece.