February 3, 2010
Lord Hoffmann delivers speech on ‘libel tourism’
Former Law Lord dismisses 'American' complaints about UK defamation law
"Complaints about libel tourism come entirely from the Americans and are based upon a belief that the whole world should share their view about how to strike the balance between freedom of expression and the defence of reputation," Lord Hoffmann said last night. "Naturally the American view is enthusiastically supported by the media in this country.”
Speaking out against the charge that England should adopt a more free-speech orientated libel regime, Lord Hoffmann said: "It is only if you think, as many Americans do, that an American should only have to say civis Americanus sum to cloak himself in the immunity of the First Amendment against liability for injury which he has caused in a foreign country, or, as much of media in this country does, that we ought to become the second country in the world to adopt the New York Times v Sullivan rule, that there can be any basis for criticism."
"But before we are stampeded into changing our law, we should bear in mind that the points about which complaint is made are either binding on us as a matter of European law, as in the Shevill case, or have been approved by the Strasbourg court as compliant with the right to freedom of speech under the Convention.”
Lord Hoffmann examined a number of cases frequently cited by critics as examples of "libel tourism" in English courts, particularly dissecting the issues thrown up in the case of Bin Mahfouz v Ehrenfeld, in which New York-based defendant was sued in London by Saudi businessman Sheikh Mohamed Bin Mahfouz over her book on terrorism funding. Ehrenfeld chose not defend the case in the English courts and action was concluded in the Claimant’s favour under the summary disposal procedure, during which Eady J took the unusual step of issuing a declaration of falsity. Lord Hoffmann argued that Ehrenfeld had a number of options open to her in defending the action, rather than simply ignoring the English claim.
The Former Law Lord noted that post Ehrenfeld some US states had legislated to make foreign libel judgments unenforceable unless the court was satisfied that the foreign court gave at least as much protection to freedom of speech as the State and US constitutions. He went on to warn against the proposal for federal legislation that would allow juries to award treble damages where they found an intention on the part of the claimant in foreign libel proceedings to stifle the free speech of a US citizen. "It is important to notice that these provisions, if they become law, will apply to British citizens suing in British courts for damage to their reputations in Britain, who can hardly be described as tourists," Lord Hoffmann said. "The lesson for all foreigners is clear. If you have assets in the United States, beware of trying to defend your reputation in the country in which you live and have been libelled by an American. "You may find yourself on the receiving end of a counter-suit for treble damages.
Lord Hoffmann, who was giving the fifth Dame Ann Ebsworth Memorial Lecture, at Inner Temple Hall, echoed the sentiment expressed by Mr Justice Eady in his recent keynote speech, in which he questioned the validity of the ‘problem’ of libel tourism, “we ought to inquire into how serious in practice this problem of libel tourism is…If the Ehrenfeld case or the Don King case is the best that the campaigners for a change in our law can do, their case seems to me far from overwhelming."
Lord Hoffmann added: "I do not want to suggest that English libel law is perfect. No doubt there are improvements to be made, and in relation to costs in particular, Lord Justice Jackson has made some