May 5, 2009
 
FIGHTING BACK: Libel: It's What You Say and When and Where You Say It
Second in a three-part series
 
By Rene A. Henry
 
Seattle, WV (Special to HNN) – If you can’t get a publication or media organization to correct or retract a defamatory or malicious statement, then the only alternative may be litigation. Chances of winning in court depend where you sue and where you live.
 
Courts in the U.S. require the plaintiff, or party libeled, to prove that the defendant published the statement knowing it to be false, or published it with reckless disregard to its truth. However, under laws in England, Canada, Australia, the British Caribbean, and other countries, the defendant is considered guilty until proved innocent.
 
“One feature of a defamation action in the British Caribbean and throughout the Commonwealth is that the burden of proof is immediately placed on the defendant at the outset to prove what was said was true and thus not defamatory,” said Desmond Seales, publisher and editor-in-chief of Caribbean Net News. “The plaintiff has to prove very little, if anything. All he has to do is make the claim that the offending statement is defamatory and it then is up to the defendant to prove that it is not.”
 
At the opposite end of the spectrum, in the U.S., politicians and prominent public figures are fair game. The Supreme Court ruled in the case of New York Times Co. v. Sullivan, 736 U.S. 254 in 1964 that in order for the plaintiff to win, there had to be actual malice by the publication, knowing it was publishing false information. The court also extended malice protection to include speech about public figures and pubic officials.
 
Again, British laws differ, and a reporter or publisher can be criminally prosecuted for commenting on the conduct of public officials either negligently or with intent to defame. In fact, one Caribbean island newspaper editor went to jail for publishing a letter that was written by someone else and critical of a government leader. A Caribbean radio station owner had to pay US$30,000 plus legal fees for both sides when it broadcast a live event during which a satirical song mocked two politicians. Both cases would have been thrown out of courts in the U.S.
 
In January 2004, the Privy Council, the final court of appeal for all British Caribbean states, ruled constitutional a criminal libel law that provided for a two-year imprisonment of publishers libeling government officials. Criminal libel had its origins in England in 1488 and came to the U.S. in the 18th century. Under libel law, only a living person can take action.
 
Truth Is Not A Defense In Foreign Courts
 
American writers and publishers are facing a new problem today according to John J. Walsh, senior counsel of Carter Ledyard and Milburn, New York, and someone I consider to be the nation’s foremost attorney on First Amendment Law. “Wealthy foreigners who believe they have been offended by something written and published in the U.S. are trying to get around ‘actual malice’ and our libel laws by bringing action in England and other foreign courts where the laws are plaintiff-friendly,” says Walsh.
 
“This type of action, called ‘libel tourism,’ has prompted legislative action to prevent foreign libel judgments from being recognized and enforced in U.S. courts unless they are consistent with the same protection afforded by First Amendment laws,” Walsh adds. “New York and Illinois have enacted such laws and similar bills have been introduced in both the Senate and the House of Representatives.
 
“Free speech for Americans under the First Amendment now stops at the Atlantic and Pacific shorelines and the Canadian and Mexican borders,” says Walsh. “However, some proposed legislation that would award damages in a U.S. lawsuit against a foreigner who sues an American for libel in a foreign court not only is ridiculous and insulting to the courts of our best foreign friends, but is unconstitutional because of a lack of due process of the law.”
 
Truth often is not a libel defense outside of the U.S. The actual malice standard of the Sullivan case, which is a cornerstone of free speech and the First Amendment, is not accepted in the U.K., Canada, Australia, British Caribbean of any of the 41 member states of the council of Europe.
 
A Saudi billionaire filed suit more than 30 times in England against writers who accused him of terrorism and also in Belgium, France and Switzerland for those who repeated the accusations. In her book, “Funding Evil,” author Rachel Ehrenfeld, wrote that the man and his family deposited “tens of millions of dollars in London and New York directly into terrorist accounts and transferred another $74 million to an international organization run by a U.S.-designated terrorist.” Ehrenfeld, who pioneered investigation into the financial roots of terrorism, is an adviser to the U.S. Department of Defense and director of the American Center for Democracy, New York. The British court ordered her to pay £10,000 to each of three plaintiffs, plus costs, and apologize for false allegations. On a website, the Arab billionaire boasts of court victories over The New York Times, The Wall Street Journal and The Washington Post.
 
“English lawyers now refer to the ‘Arab effect’ to describe the surge of English libel actions by wealthy, non-resident Arabs accused of funding terrorism,” wrote Samuel A. Abady and Harvey Silverglate, in The Boston Globe. “This trend has produced a succession of rulings, settlements, and damage awards against English and American media defendants costing millions of pounds.”
 
Two years ago actress Kate Hudson won a libel case in the U.K. against the British edition of the National Enquirer magazine after it published an article suggesting she had an eating disorder. Richard N. Perle, an advisor to George W. Bush, threatened to sue Pulitzer-prize winning investigative reporter Seymour Hersh in London because of a series of critical articles he had written. Hersh is a regular contributor to The New Yorker magazine and writes about military and security issues.
 
Criminal Libel and the Internet
 
There are criminal libel statutes in 17 states, Puerto Rico and the U.S. Virgin Islands. Most libel litigation in the U.S. is civil, and there are fewer cases today than in previous years, but with larger financial awards. Freedom of speech and civil liberties advocates are seeking to get many state laws declared unconstitutional while at the same time it is becoming more prevalent for people to post false information on the web to ruin someone’s reputation. Common defamatory remarks on the Internet include accusations of criminal acts, marital infidelity, dishonesty, or having a sexually-transmitted disease.
 
Electronic technology led to a bill introduced February 2009 in the North Carolina legislature to criminalize defamatory statements made on the Internet. Protection was given to the person responsible for administering and providing the facilities for the defamatory material unless the person was guilty of negligence.
 
Last year a Colorado man was found guilty for posting comments about his former girlfriend and her lawyer on the Craigslist “Rants and Raves” section, accusing of her of child abuse and welfare fraud and making crude comments about her sex life. Another Colorado man was charged with pasting pictures of the face of a woman on the body of another and publishing and disseminating the pictures electronically.
 
A third Colorado man was sentenced to more than 20 years for making false statements on line that included calling a college professor a sexual deviant and sending an Alaskan newspaper a false obituary claiming a living person had died of AIDS. The Colorado law, enacted in 1963, is a felony with up to 18 months in prison and a fine of up to $100,000 for the first offense.
 
A Utah teenager who used the web to call his school’s principal the town drunk and demeaned several of his female classmates, spent a week in juvenile detention and was ordered to live with his grandparents in California.
 
Recently some lower courts have found criminal libel laws unconstitutional because restrictions are placed on free speech.
 
Does Libel Impede Free Speech?
 
On March 20, 2009, an organization lobbied the British government and asked Prime Minister Gordon Brown and members of Parliament to repeal and amend legislation on criminal libel. “One of the problems with criminal defamation is that a breach may lead to harsh sanctions, including a criminal record or imprisonment,” said Dr. Agnes Callamard, Article 19 executive director. “In some countries, unduly harsh penalties under criminal libel laws are used to suppress the right to freedom of expression. The U.K. libel statute signals other countries that such laws are acceptable.”
 
Article 19 has offices in the U.K., Brazil, Mexico and Africa and believes that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers."
 
However, the organization does not address the issue of freedom of opinion and expression that can be blasphemous, seditious, obscene or defamatory, and the rights of an individual or organization with regard to character, image and reputation.
 
Before the American Revolution, anyone could successfully sue a writer or publisher even when what was published was true. This changed with the Supreme Court’s New York Times-Sullivan ruling that protects free speech. Today, to win a libel suit in the U.S., a public figure must show not only that the statement is false, but that the writer or publisher knew it to be false and it was written with malice and a reckless disregard for the truth.
 
Next: Does the media have a double standard when it comes to athletes, entertainers, celebrities and public figures?
 
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Charleston, WV native Rene A. Henry is an author and columnist and lives in Seattle, Washington. His latest book, “Communicating In A Crisis,” has a specific chapter on how to fight back and win. Many of his widely published commentaries are posted on his website, www.renehenry.com.



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