Hearing of the Subcommittee on Commercial and Administrative Law of the House Judiciary Committee

Interview

HEARING OF THE SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: LIBEL TOURISM
CHAIRED BY: REP. STEVE COHEN (D-TN)
WITNESSES: RACHEL EHRENFELD, PH.D., DIRECTOR, AMERICAN CENTER FOR DEMOCRACY; BRUCE D. BROWN, ESQ., PARTNER, BAKER AND HOSTETLER, LLP; LAURA R. HANDMAN, ESQ., PARTNER, DAVIS WRIGHT TREMAINE, LLP; LINDA J. SILBERMAN, PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW

2141 RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C.
11:00 A.M. EST, THURSDAY, FEBRUARY 12, 2009

REP. COHEN: This hearing of the committee on Judiciary Subcommittee on Commercial and Administrative Law will come to order. Without objection, the Chair will be authorized to declare a recess of the hearing, and I suspect I will, as we have a special program honoring the 16th president of the United States at about 11:30. So we are going to break at some point for that, and then come back and finish up.

I will now recognize myself a short statement. Last year I introduced and the House passed under suspension of the rules H.R. 6146 to protect Americans' First Amendment rights against the threat posted by libel tourism. We return to that subject matter today.

Libel tourism is the name given to the practice of end-running the First Amendment by suing American authors and publishers for defamation in the courts of certain foreign countries. These countries have laws that often disfavor speech critical of public figures, countries with often little or no connection to the allegedly defamatory statements that gave rise to the suits.

England has become the favorite destination of libel tourists from around the world, especially wealthy libel tourists from countries whose own laws are hostile to free speech. London has been called the libel capital of the world. England's otherwise admirable legal system attracts libel tourists for several reasons.

Let me touch on the main one by way of introduction to the subject of today's hearing. Our constitution's First Amendment usually requires a defamation plaintiff to prove the falsity of a challenged statement. The First Amendment is even more demanding when the defendant is a public figure, New York Times, et cetera.

The plaintiff must then prove actual malice. Proof that the defendant made the defamatory statement in the words of the U.S. Supreme Court with, quote, "knowledge that it was false or with reckless disregard for whether it was false or not," unquote.

Not so under the English defamation laws. Under English laws, presume the defendant is wrong, places the burden of proving the truth of an allegedly defamatory statement on to the defendant. This draconian feature of English law, a long way from Magna Carta, has drawn criticism not only from defenders of free speech in the U.S., but also from the United Nations and even members of U.K.'s own parliament.

The threat of English and other foreign defamation suits by libel tourists has not diminished since we introduced H.R. 6146. If anything, it has grown and is likely to grow stronger as the Internet continues to facilitate the free flow of information across national boundaries.

Today's hearing will give members of the subcommittee the opportunity to address four main issues. First, what features of some foreign legal systems, especially England's, attract libel tourists? Second, how prevalent is libel tourism, who are the libel tourists, and who are their American victims.

Third, does libel tourism threaten the First Amendment rights of Americans, and if it does, how and with what effect on public discourse, about important matters of public concern. And finally, what should Congress do about libel tourism?

As I mentioned in my earlier remarks, we passed this bill in the House and the Senate never addressed it. To help us address this -- these important and timely questions, we will hear from four distinguished witnesses.

Our first witness will be Rachel Ehrenfeld, an author whose ordeal with libel tourism has helped bring this issue to the public's attention. Then Laura Handman and Bruce Brown, two prominent Washington media lawyers, who will testify about matters concerning the threat of libel tourism.

Finally, Professor Linda Silberman of the NYU School of Law, one of the country's foremost experts on the enforcement of foreign legal judgments in our courts, and we will continue our discussion, and hopefully suggest possible next steps. So we have comity, not the Bob Hope variety, but the legal kind, and threats to the First Amendment.

Accordingly, I look forward to receiving today's testimony and I now recognize my colleague Mr. Franks, the distinguished ranking member of the subcommittee, for his opening remarks.

REP. TRENT FRANKS (R-AZ): Well, thank you, Mr. Chairman. And Mr. Chairman, I sincerely appreciate you conducting this hearing. This is an important subject.

Libel tourism is a specialized category of international forum shopping, which is the deliberate selection of a court that is known to rule favorably on a plaintiff's position.

A typical scenario involves an author who writes a critical news story about a social or legal problem. As part of that story, the author exposes the illicit activity of an individual or group, possibly a person with an existing public profile; imagine that, seeking retribution against the author that the person or group files a deformation suit -- law suit in a forum known for its weak free speech laws.

The plaintiff in this scenario is not really interested in obtaining a judgment to collect damages. Instead the plaintiff's main goal is to dissuade anyone from researching and publishing other negative accounts about his or her activities.

One of the witnesses today, Rachel Ehrenfeld, has experienced this firsthand. In her book, "Funding Evil," Ms. Ehrenfeld indicts the activities of Saudi billionaire Khalid Salim bin Mahfouz for allegedly erecting a bank system and fraudulent charitable groups that fund the activities of Osama bin Laden and other terrorists.

Although the book was published in New York, 23 copies were sold in Great Britain through amazon.com, and the first chapter was accessible online internationally. Bin Mahfouz sued Ms. Ehrenfeld in London for defamation.

She did not appear to contest the court's jurisdiction or the merits of the suit and lost on summary judgment the following year.

The British court awarded $225,000 in damages to Bin Mahfouz and ordered Ms. Ehrenfeld to apologize and destroy remaining copies of her book. Bin Mahfouz chose Great Britain to file the law suit because he knew British libel laws provide weak protection for free speech relative to the United States. Since he could not win where the book was written and published, he manipulated the British legal system to serve his own purposes.

Following litigation in federal and state court to declare the verdict unenforceable, the New York legislature passed the Libel Terrorism Protection Act in 2008. The statute provides that a foreign defamation judgment against a New Yorker will not be recognized unless the law applied in the foreign court provides as much protection for freedom of speech as the U.S. and in New York law.

Interested parties, including members of this subcommittee, believe that other states and the federal government should follow New York's lead. If libel tourism is an ongoing threat to free speech, a more comprehensive response is needed.

Last year, the House passed H.R. 6146, Chairman Cohen's Libel Tourism Bill, which I cosponsored. Under the chairman's bill, no U.S. or state court may recognize or enforce a foreign defamation judgment regarding a public figure or a public controversy unless the foreign judgment is consistent with the First Amendment in our constitution.

This dovetails with U.S. law, which generally denies enforcement of foreign judgments that are countered to state public policy. Other legislators and observers prefer a different approach, as reflected in bills introduced by Representative King of New York and Senator Specter of Pennsylvania.

The distinguishing feature of their legislation is the creation of a new federal cause of action linked to the foreign defamation suit. Once the foreign plaintiff files a defamation action against an American defendant in a foreign court, the American citizen may then sue in U.S. district court if the foreign suit does not constitute defamation under U.S. law. Injunctive relief, compensatory damages, and attorney's fees are available as remedies.

Treble damages may be given if the foreign litigant intentionally engaged in a scheme to suppress First Amendment rights by discouraging publishers or similar financial supporters not to endorse the work of journalists, academics, or other commentators.

Now we all want to support a response that does not -- or that does the best job of frustrating libel tourists. But in our efforts to craft such legislation, we must be careful not to overreach. For example, legislation that creates a new federal cause of action must comport with the constitution guarantee of due process.

We should not write a bill that allows a U.S. court to acquire jurisdiction over a foreign citizen based exclusively on his decision to file a defamation suit against an American citizen in a foreign court. There must be greater legal contacts between the foreign litigant and the United States.

These are issues that we should explore today, Mr. Chairman. We have a panel of witnesses who are well versed in the subjects of free speech, procedure, and conflict of laws. I'm confident that they will add to our understanding of the subject matter. And Mr. Chairman, if libel suit -- if libel tourism spreads, free speech will inevitably be muted.

Journalists and publishers will be less willing to report on important and controversial stories, stories that inform the public and inspire government action where appropriate. Founding father, Thomas Paine, once said, "Those who expect to reap the blessings of freedom must undergo the fatigues of supporting it." Well, that is our charge today. We must continue to support free speech by combating libel tourism.

So before I conclude, Mr. Chairman, I want to mention a related issue. In many other countries, there is little distinction made between defamation of an individual and defamation of an ideology or religion.

Other nations do not have the same high respect for the freedom of speech that we have in the United States, and it is important that we protect Americans from any defamation judgment that uses standards that do not comport with our own. For example, many foreign governments have justified restrictions on freedom of speech or expression through blasphemy and religious defamation laws.

One prominent example is of that of Egyptian blogger Abdel Kareem Solomon Amer, who was sentenced to four years in prison for criticizing President Mubarak and offending the religion of Islam. Similarly, author Mark Steyn faced charges of offending Canadian Moslems for an article from his book, "America Alone" that Maclean's magazine published last year.

The movement for greater restrictions on freedom of speech or expression to protect religions rather than the rights of individuals is one of the greatest threats to human freedom at this time, both internationally and in the United States, and one which shows how critically important it is that we look at the problem of libel tourism today. We must remain vigilant to protect Americans from any foreign defamation judgments.

And thank you, Mr. Chairman, for your patience here and I look forward to the witnesses' testimony.

REP. COHEN: I thank the gentleman for his statement. This is an ideal time and opportunity, and we had founded last year for bipartisanship. So unlike the vote we'll probably take later today, we will have a good mix of blues and reds, being all blues or greens or whatever.

All members shall have the opportunity to enter a statement and it will be -- opening statements will be included in the record. And I think Mr. King had a statement who was going to be a witness, and without objection, we will have that entered in the record.

I'm now pleased to introduce the witnesses for today's hearings. First witness is Ms. Rachel Ehrenfeld. As mentioned in the opening statement, she's been a subject or an object of libel tourism. She is the director of the New York based American Center for Democracy and the Center for the Study of Corruption and The Rule of Law, the author of "Funding Evil: How Terrorism is Financed and How to Stop It; Evil Money and Narcoterrorism."

Dr. Ehrenfeld is an authority on the shadowy movement of funds through international banking and governments to fund terrorism, assuming that monies are still traveling through banking. She explores the challenges of economic warfare and international terrorism to democracy and freedom and how money laundering and political corruption facilitates terror, financing and economic tourism.

She has authored hundreds of articles about these issues. She has testified before Congressional Committees as well as the European and Canadian parliaments on similar jurisdiction, provided evidence to the British parliament, consultative government agencies such as the Department of Defense, Homeland Security, Treasury, Justice, and the CIA.

She has also organized and participated in conferences the world over, is a member of the board of directors for the Committee on the Present Danger.

Our second witness will be Mr. Bruce Brown. Mr. Brown is a former newsroom assistant to David Broder at The Washington Post and federal court reporter for Legal Times. He joined the firm of Baker Hostetler in the summer of '97. Since then he has worked primarily in the areas of libel defense, prepublication review, newsgathering, copyright, and civil rights.

He regularly assists the Society of Professional Journalists on freedom of information matters. In the area of prepublication review, he has worked on biographies of Supreme Court Justice Thurgood Marshall, former New York Mayor Rudy Giuliani, and "Imagine" musician John Lennon.

His published work has appeared in The Washington Post, The American Lawyer, The Economist, Legal Times, The Wall Street Journal, and been interviewed on NPR and Court TV.

Ms. Laura Handman will be the second -- third witness. She is the co-chair of the Davis Wright Tremaine Appellate practice, concentrates on media and intellectual property law, provides prepublication counseling and litigation services for -- from complaint through trial and appeal to U.S. and foreign book, magazine, newspaper, and electronic publishers and broadcasters.

She has extensive experience in libel and privacy matters, and brings recognized expertise to clients in an array of copyright, trademark, and First Amendment issues. Also been on the America Radio Network -- her clients include the America Radio Network, Amazon.com, BBC, CNN, The Economist, Fox Television Stations Inc., HarperCollins, and the Random House.

And our final witness is Ms. Linda Silberman. Professor Silberman joined NYU School of Law faculty in '71, first woman to receive a full-time tenure track appointment at the School of law and the first woman tenure professor -- full professor at NYU School of Law when she received tenure in '77. She was named the Martin Lipton Professor of Law in 2001.

Professor Silberman has approached all the subjects she teaches as a blend of the practical and the academic, whether it is civil procedure, conflict of laws, family law, or international litigation. She brings to the classroom her private practice background, her experience as an appellate lawyer as Professor in Residence of the Justice Department, Civil Division, Appellate Staff, and her role as a special referee, expert and consultant in a number of leading cases.

She has participated in various state department study groups including the Hague Conference on choice of law applicable to international sales, proposed Hague convention on jurisdiction and judgments, and the Hague Convention on choice of court agreements.

So as you can see, we have a very distinguished panel. We appreciate the willingness of all of you to participate in today's hearings. Now, without objection, your written statements will be placed on the record, and we ask you to limit your remarks to five minutes. We've got a lighting system and when it gets to yellow, you've got a minute left and then at red, Beulah (ph) pushes the buzzer and you're off.

After each witness has presented his or her testimony, subcommittee members will be allowed to ask questions subject to the five-minute limit.

Dr. Ehrenfeld, will you sign in and give your testimony?

You might not have your microphone on. So you give us a little test?

MS. EHRENFELD: Now it's on.

REP. COHEN: All right.

MS. EHRENFELD: Thank you, Mr. Chairman, and members of the committee for holding this hearing on libel tourism which affects me personally. Special thanks to Mr. Cohen for inviting me.

Sitting at my desk on January 23, 2004, I was interrupted by an e-mail from a law firm in London. This was no ordinary message.

It was a letter threatening to sue me for libel in a British court for statements made in my book "Funding Evil: How Terrorism is Financed and How to Stop It" about their client Saudi billionaire Khalid bin Mahfouz. The letter said that Mahfouz denied allegations in my book that he funded the al Qaeda and other Moslem terrorist organizations.

Mahfouz' lawyers demanded my public apology, a retraction, removing my book from circulation, legal fees, and a donation to a charity of Mahfouz' choice. This was followed by further messages, faxes, mail, and legal papers served. I am a scholar dedicated to exposing the enemies of freedom in western democracies through publications in books and articles.

The psychological, emotional, and financial effects of the threat of this libel suit against me in London will stay with me as long as I live. I refuse to recognize the English court's jurisdiction over me. I did not believe that I should have to defend myself in a country where my book was not published or even marketed.

Nevertheless, I was sued for libel in London because 23 copies of "Funding Evil" found their way to Britain mostly through the Internet, which also carried the chapter of my book. In 2005, the British court granted Mahfouz a judgment by default awarding him hundreds of dollars and other sanctions.

Until the New York legislator passed the Libel Tourism Protection Act last May, I spent many sleepless nights worried that Mahfouz will try to enforce the English judgment against me in New York. His deliberate non-enforcement left it hanging over my head like a sword of Damocles which aggravated the chilling effects.

Mahfouz also uses a dedicated website to advertise my judgment with more than 40 other names of those he threatened and sued in London. Mahfouz' suit has never been tried on the merit. Yet, the British judgment affected my ability to publish. The threat he wields over me and over others chilled American publishers, especially those with assets overseas, from publishing books containing information on terror financers.

Mahfouz also chilled my ability to travel to the U.K., lest I be arrested to enforce the British judgment against me. I run the same risk in Europe and in most Commonwealth states due to their reciprocal enforcement of judgments. The Free Speech Protection Act includes provisions to counter sue and damages.

These are essential to remove the chilling effect of foreign libel suits, because they will serve as a deterrent to people contemplating to sue American writers and publishers in England or other foreign jurisdictions. Do you think Mahfouz would have sued me had he known I could counter sue him and ask for damages? And wouldn't that be true for others who sued Americans in London or elsewhere?

Today is a special day to have this hearing. We all know the significance of the man whose birthday we celebrate today. Lincoln was, among other things, a wonderful writer who held this nation together with his words that he published and which we revere to this day. Imagine if he was intimidated, threatened, and chilled from publishing those words by threat of foreign libel law suits?

It is therefore fitting and proper that this committee held this hearing about freedom of expression on Lincoln's birthday. I urge Congress to pass the Free Speech Protection Act because it is fitting and proper that it should do so.

REP. COHEN: Thank you very much for your statement.

I want to recognize a former member, Congressperson Pat Schroeder who is here and always honored to be in her presence.

And I appreciate your brevity; it is something uncommon in this place.

Mr. Brown?

MR. BROWN: Thank you. It is a pleasure to be here today, and I thank the subcommittee for its interest in finding a way to counter a growing and so far, unresolved problem, the threat of libel tourism to First Amendment interest in the U.S.

It is a favorite line of London libel lawyers when they travel to conferences in the U.S. to quip with a nod to the great Johnny Cash that they have just come from a town named Sue. And I have heard that same joke in different cities, coming from different English libel lawyers. It tells you something about how well entrenched libel tourism has become.

Speaking at these events with English lawyers about the historical differences in the way the two countries balance free speech with reputational interests has always been intellectually interesting for sure. These differences, in fact, used to be solely the stuff of academic conferences and law review articles.

But today, the importance of the distinction is far from abstract or theoretical, because today there are stories such as the one you just heard from author Rachel Ehrenfeld. Two principal things have happened. First, British judges have been exceptionally generous to libel plaintiffs from all parts of the world who seek to use U.K. courts to hear their claims despite a tenuous connection on their part or on the part of the defendant to England.

Second, publication over the Internet means that online content published in the U.S. and intended primarily for an American audience can be viewed anywhere around the globe, giving the English courts the thinnest of jurisdictional hooks for libel cases but one that they have seized.

London therefore has become the destination for a new class of libel litigant who circumvents the strong free speech protections in our courts and sues instead, or threatens to sue, in the U.K. where the standards are much weaker. Fear of substantial libel judgments in the U.K. plainly has a distorting impact on what is published here at home, stifling free speech in the U.S. on many important subjects. And so libel tourism was born.

The problem was, in many ways predictable, as the U.S. and U.K. traditions became more entangled in the online world. But the remedy thus far has been illusive. I'm thrilled to see this subcommittee pursuing one in this Congress. The written testimony you have from the other panelists and from me explains the incentives for a plaintiff to be in a U.K. court highlighting the specific ways in which U.S. law is more protective than U.K. law in the libel area.

While Rachel Ehrenfeld's story is well known, there are many others that are not, such as Humayun Mirza's. I tell his full story in my written statement, but let me briefly point out a few details. Mr. Mirza is the son of the first president of Pakistan. He retired after 30 years at the World Bank and wrote a biography of his father from his home in Bethesda. The University Press of America based in Lanham, Maryland published it in 1999.

Mr. Mirza received a letter from the U.K. attorneys of his father's second wife, threatening to sue him in London. Each statement Mr. Mirza had written about her was founded on firsthand observation, decades of conversations with family members and Pakistani leaders, as well as state department files. The book would unquestionably have been protected under U.S. law. And it was hardly distributed in the U.K.

But Mr. Mirza was intimidated into withdrawing it nonetheless. In a U.K. court, he would have had the burden of proving the truth of the statements, a daunting task regarding incidents, that in some cases, had taken place half a century earlier in Pakistan. In a U.S. court, the First Amendment has shifted this burden and it is the plaintiff who must prove falsity.

Moreover, as the wife of a former head of state, Mrs. Mirza, in a U.S. court, would have been a public figure required to prove that the allegedly defamatory statements about her were published with actual malice or clear and convincing evidence that Mr. Mirza was aware that the statements were false or made them with reckless disregard for the truth. English courts have no such protections.

So there ultimately was no case called Mirza versus Mirza in the U.K., because Mr. Mirza and his publisher could not risk it. Countering the impact of libel tourism is not about second-guessing the British people for striking a different balance between free speech and reputation than we have. It is about making sure that foreign jurisdictions do not dictate to us how we should strike this balance for ourselves.

I first met Laura Handman just over 10 years ago when she wrote a very important friend-of-court brief in the Matusevitch case, which I'm sure we'll hear about. I covered the case for Legal Times and quoted the Wilmer Cutler lawyer who was representing Mr. Matusevitch pro bono.

What he told me then could be said today about the whole libel tourism debate. Quote, "This case is not about exporting American law. It is about importing British law." And as the U.S. Supreme Court said, "That is one of the reasons we fought a revolution." Thank you.

REP. COHEN: Thank you, Mr. Brown.

Ms. Handman? And we're going to do what we probably should do, which is respect your time and our committee schedule, and pass on a -- recessing for the Lincoln event. I think you'll understand, Ms. Handman.

MS. HANDMAN: Thank you, and I hope I do him justice. And thank you so much, Chairman Cohen, and ranking member Franks, and the other members of the committee for inviting me to speak about an issue that has been a passion of mine for nearly 20 years.

REP. COHEN: And if you would, keep your mike on and --

MS. HANDMAN: Oh, oh, sure. Thank you. I applaud the heroic determination of Rachel Ehrenfeld and the efforts of this committee to address the growing problem of libel tourism. My support is coupled with the greatest respect for the international comity concerns that Professor Silberman will undoubtedly raise.

And I have the greatest respect for the British common law which is the very foundation and genius of our legal system. But I've had the dubious honor of being introduced by my British counterparts to English judges as the American lawyer who got, quote "our law -- the libel law declared repugnant." I garnered that reputation because I was counsel in the only two decisions so far where American courts have refused to enforce British libel judgments.

And I would like to take a moment to explain the Bachchan case, because its facts really highlight the differences. In 1991, I was asked by the late Gopal Raju whether I would represent India Abroad, a newspaper and wire service based in Manhattan, which served an audience of Indians living primarily in the U.S. He had just been hit with a judgment from a London court in a libel action brought by Ajitabh Bachchan, a member of one of India's most prominent families.

To give you a sense of just how big a deal this family was, if you've seen the film "Slumdog Millionaire," you will remember when the Bollywood star comes via helicopter to the slums and Jameel, locked in the latrine by his brother, dives into the hole in the floor so he can escape and get the star's autograph. That star, Amitabh Bachchan, was the brother of the plaintiff in this case.

Both Bachchan brothers were intimates of Rajiv Gandhi, then India's prime minister. The story in India Abroad reported that the leading Swedish daily newspaper, Dagens Nyheter had reported a new development in the widely publicized scandal involving alleged kickbacks by a Swedish munitions company to obtain Indian government contracts. India Abroad -- should I wait for the --

REP. COHEN: Don't worry about that. That is the subject you learn about in your fifth term. So you can go ahead.

(Laughter)

MS. HANDMAN: India Abroad reported that Dagens Nyheter that reported that a Swiss bank account belonging to plaintiff had been frozen by Swiss authorities. Bachchan sued Dagens Nyheter and India Abroad in London, and the Swedish paper immediately issued a retraction and settled. India Abroad reported the retraction but did not settle. That left India Abroad with no defense, because its own source had said it had made a mistake.

In the U.K., you had -- India Abroad had the burden of proving that the claims were true with -- Dagens Nyheter having claimed it -- admitted it was false, that was not possible. It did not matter that the plaintiff was a quintessential public figure or the subject matter was quintessentially a public concern involving a political scandal reaching up all the way to the prime minister facing reelection.

It did not matter that all that India Abroad did was publish an accurate story about what a highly respected newspaper had reported.

In the U.S., plaintiff could not possibly establish that India Abroad published with fault, any kind of fault, negligence, actual malice, since reliance on reporting of a reputable news organization is what all news organizations do, should do, and what small newspapers like India Abroad must do.

In England, particularly under the law at that time, a mistake is a mistake. News organizations are essentially guarantors of accuracy and India Abroad had to pay. These are not minor differences between our two bodies of law. These go to the core of protections, the breathing space, ensured by New York Times v. Sullivan for political speech.

So when Bachchan came to New York, no U.S. court had refused to enforce a foreign libel judgment, but Judge -- Justice Shirley Fingerhood refused to do so, because she said England and the United States share many common law -- principles of law. Nevertheless, a significant difference between the jurisdictions lies in England's lack of an equivalent to the First Amendment of the United States Constitution.

We did win 6-1 in Maryland in the Matusevitch case that Bruce Brown mentioned. But since these cases, the pilgrimage of libel plaintiffs, be it Britney Spears, Russian oligarch Boris Berezovsky, or Sheikh Khalid bin Mahfouz, they've all flocked to London. Virtually every demand letter we receive these days from a U.S. lawyer is now accompanied by one from a British solicitor.

Libel tourism has not -- has only grown as the Internet permits even a newspaper like The Washington Times, which sold zero hard copies in the U.K., to be sued in London by an international businessman based on several dozen hits in the U.K. on an Internet website about a story about a Pentagon report.

In part because of Bachchan and Matusevitch, the British courts have moved a step away from strict liability and a step closer to (fault ?). But with increasing economic pressures, fewer and fewer media companies, much less individual authors like Ms. Ehrenfeld, can afford the risk of a more than likely judgment against them in a British courtroom.

In the case of Forbes that could be three judgments, since they are currently being sued simultaneously in Ireland, Northern Ireland, and England for the same story by the same lawyer. That risk is further compounded by the English rule that makes the loser pay the winner's legal fees as well as their own.

With British solicitors charging rates as high as 1,300 pounds per hour per lawyer, the result is predictable. U.S. media agreeing to outside settlements for cases that would have had no chance of success in the U.S. and self-censoring by either not writing about public figures known to be litigious, not engaging in investigative reporting, or not publishing in the U.K. at all.

No one, not the audience in the U.S. or overseas, is well served by such a regime. I think that H.R. 6146 is an important step making mandatory on the federal level the Bachchan decision. I have suggested in my written testimony ways to enhance its remedial impact.

Thank you very much. I look forward to your questions.

REP. COHEN: Thank you.

Professor Silberman, you're recognized.

MS. SILBERMAN: Thank you. I'd first like to thank you, Chairman Cohen, and the subcommittee for inviting me to testify on this subject about which I've been thinking and writing for decades and that's the recognition and enforcement of foreign judgments more generally.

And I'm delighted to see that the -- that this topic is going to be addressed at the federal level. You may have seen the ALI Project that I did with my colleague Professor Lowenfeld which offers a somewhat more comprehensive proposal for a federal statute governing the recognition and enforcement of judgments more broadly.

The ALI Project represents the position of the institute, that my statements and my written testimony are those of myself only. In the short time that I have, I'd like to just take two points. One, the need for federal law on this subject and secondly, some suggestions about the libel tourism bill.

As I said, I think the subject of recognition and enforcement of foreign judgments should be a subject of national federal law and libel tourism is only one aspect of that. The United States has no bilateral or multi-national treaty dealing with the recognition or enforcement of foreign judgments.

And unlike the full faith in credit obligation which is owed to sister state judgments, foreign country judgments are not subject to any constitutional or statutory requirement of recognition.

Now it's a curious history why the law on recognition and enforcement of foreign country judgments has been treated as a matter of state law, especially when the only Supreme Court case on this subject says that it's a matter of relations between the United States and the foreign state.

But because it's been left to state law, the same foreign judgment may be recognized and enforced in one state and not in another. And the attempt at uniformity has been unsuccessful because they've used a uniform state law, but it's not been adopted by everyone. The adoptions when they have occurred are not uniform and interpretations by state courts are not uniform.

And I give in my written statement the example of the reciprocity requirement required by some states and not by others. So a federal law in this entire area is desirable and I understand that this may be a first step.

The second, on what to do about addressing the specific problem of libel tourism? H.R. 6146 is really a specific application of the principle adopted in every state of the United States, and indeed principles adopted by almost every country that a foreign country judgment may be refused recognition on grounds that the judgment is repugnant to the public policy of the enforcing state.

And as we've heard, public policy has been used by states to refuse recognition and enforcement judgment. H.R. 6146 would make clear that as a national matter First Amendment concerns trump the more general policy of recognizing and enforcing foreign country judgments. And I think this should be done at the national and federal level.

My main critique of H.R. 6146, if I may, is that it does not distinguish those cases where, from a private international law and conflict of laws perspective, it's appropriate for courts in the United States to refuse to recognize judgments and when it is not.

And the example that I use is the Matusevitch case which was already referred to. Because there the libel judgment was obtained by one resident of England against another, both of whom were Russian émigrés. The libel was in England, the comments were published in an English newspaper. And the U.S. court, as we heard, refused to recognize the judgment because of fundamental policy differences in U.S. and English law.

The question to be asked here is when does a country have interests that are sufficiently implicated to warrant the application of its own policy? In the Matusevitch case, everything took place in England. And yes, what is at stake are different English and American views about the appropriate balance between defamation protection and free speech.

And in the Telnikoff case, it's England that has the relevant interest. There are, of course, other examples where a court in the United States would certainly be justified in concluding that its First Amendment concerns should lead to non-recognition. My basic point only is that H.R. 6146 doesn't contain those nuances.

I've also suggested that a comprehensive approach to recognition and enforcement of judgments would look at issues of jurisdiction where the English courts are exercising exorbitant jurisdiction. We ought not to be enforcing those judgments. And I think that is a piece missing from the H.R. 6146 as presently drafted.

As you might expect from my earlier comments, I'm highly critical of the attempts made in the other bills to authorize jurisdiction and to create a cause of action for declaratory judgment and these more aggressive remedies. The jurisdictional provisions in those bills, I think, are inconsistent with due process.

And I think it's much too aggressive an assertion of U.S. jurisdiction even in situations where we would say that U.S. interests are compelling. One need only be reminded of the possibility that an anti-suit injunction by a court in the United States may be met with a response of an anti-anti-suit injunction elsewhere.

And I see no reason to elevate those stakes. And looking, I see my time is over. I just would urge the committee to look at this issue somewhat more comprehensively in a, sort of, larger context about the recognition and enforcement of judgments.

Thank you very much.

REP. COHEN: Thank you, Dr. Silberman.

And I will now ask to recognize myself for some questions.

You said there are some nuances in 6146 that you think should be changed and it relates to this discretion. And when do -- have an action arises to such that it should not be recognized here in our courts.

Would you have language that you could recommend to us that you think would be definitive enough to give guidance to the courts?

MS. SILBERMAN: Well, I probably ought to think a little bit about that that something like when U.S. interests are undermined or U.S. interests are affected. I mean, we are a -- we are a system that develops these issues by common law, and there -- conflict of law approaches recognize situations in which there are interests.

I think the failure to give any kind of nuance here, something like when U.S. interests are affected, would allow judges to find those situations, and avoid with all respect, the Matusevitch case, which I myself think is an inappropriate use of the public policy exception. I mean, we probably differ in this group, but that is my view. And I think the interests there of England, however much we disagree with them, are appropriate.

REP. COHEN: You mentioned the other bills that have been introduced on this subject, and is -- do you know of any precedence for a cause of action in American law being created by something happening in a foreign jurisdiction in law, court?

MS. SILBERMAN: Well, I don't know of a -- I don't know of a bill that has moved that way. Certainly things can happen in a foreign country that affect persons in the United States and depending upon what those persons had done. I mean the --

REP. COHEN: But I don't mean by what people have done as much as a foreign court's actions. Have the actions in a foreign court ever been such that they have been the cause for action in the United States in a court system as a response?

MS. SILBERMAN: Well, of course, we know the Yahoo case in which the court ultimately dismisses that case. That's a case for a declaration of -- and -- declaration of non-recognition on precisely -- in precisely this situation, a declaration of non-enforcement because of the judgment rendered by the French Court against Yahoo.

And I have to confess that I was -- I had some consultations with Yahoo in that situation. And indeed, I had suggested that an appropriate course might be a declaration of non-enforcement and at that time I said, but I think there is serious question about whether or not you can get jurisdiction.

At that time, I really did not have all of the facts, but the mere situation of bringing a suit, serving process on a -- an American defendant is generally not thought to be a sufficient basis of jurisdiction. In the Yahoo case, we have a split decision in which the judges of the Ninth Circuit on rehearing, the majority of the judges thought that that would be enough.

But a combination of judges who thought it would not be enough and concerns about rightness, that is that the threat was not immediate. There was no suggestion that they were going to try and force the judgment lead to the dismissal of the case. I mean, it's unfortunate I think that that case did not get to the Supreme Court of the United States. And if it did, we might have some guidance on that subject.

REP. COHEN: And you mentioned some problems with H.R. 5814 and the Senate Bill 2977 which, I guess, I think are identical. The problem I take from your testimony just that it causes this -- is it overreaching in its response?

MS. SILBERMAN: Well, it's two-fold. One, there is a provision on jurisdiction in that bill which I believe is unconstitutional. I think it -- the notion that you can take jurisdiction merely because someone has sued in a foreign court and there has been -- that same speech has been disseminated somewhere in the United States, I don't think is enough to get jurisdiction over that party who brought suit, used the foreign courts to bring suit assuming that there was also speech in that country.

They haven't done anything necessarily in the United States, at least as our present jurisdictional principles state.

The second thing I worry a great deal about is the notion of a clawback statute and treble damages. I mean, we've seen the attempted clawback, sort of, on the other side when the English passed a clawback statute some many years ago in the anti-trust area.

Interestingly, that clawback statute has never been used by the English. And I think because they recognize that it is an aggressive attempt at regulating of things that we may do in the United States with respect to our views about anti-trust even if there are foreign defendants who act in the United States.

The English don't think they should have treble damages. We do. The English passed a clawback statue, but it's never been used. And it's in the -- our relationship with other countries and sort of respect for our differences seems to me to be very important.

It's one thing for us to say we are not recognizing this judgment because it affronts our public policy and affects U.S. interests; it seems to me is perfectly right for us to do that.

It is quite another thing, I think, to take these broad exercises, anti-suit injunctions, treble damages, and clawback statutes. It shows no respect for a system that although different than ours is certainly a system that owes deference in situations where they have the strong interest.

REP. COHEN: Thank you, Professor.

And I now yield five minutes for questions to the ranking member, our friend, Mr. Franks.

REP. FRANKS: Well, thank you, Mr. Chairman.

And Dr. Ehrenfeld, at the risk of asking a simplistic question, looking at this legislation and recognizing your personal experience, is there some -- one provision or one central concept that you would say is most important? And does this bill address that effectively?

MS. EHRENFELD: I think that in principle, it's -- the principle of the law is good. However, having a law without any teeth, without any deterrence is not good because libel tourism will continue. I'm not a lawyer so I will not argue about the legal aspects of it, but the fact that Mr. Bin Mahfouz has a website where he advertises -- and he is not the only one -- all the legal judgments against Americans and others has a very strong chilling effect.

And I don't think that the First Amendment is similar to other civil laws. I think the United States, as far as I know, is the only country with protections on free speech, strong protections on the free speech.

There is no other country with similar protections and I think that that should make this law different than all other laws that deal with jurisdiction and reciprocity.

That's my opinion about this. I know that he had probably -- not probably, most likely would have not sued me had he known that this will reach actually Congress. And that is not a deterrent yet, because he is continuing to sue. And apparently Mr. Tweed in England, I assume, is the one in Ireland who is suing everybody as long as he can do that.

I think that without teeth, we will do very little. I think it's important to have some measure of deterrence.

REP. FRANKS: Alright, alright. Hope you continue to be involved and I'm sure grateful for you being here today.

MS. EHRENFELD: Thank you.

REP. FRANKS: Professor Silberman, my last question is, you know, there is another subject related to libel tourism called "religious defamation." And for example, you know, you have authors who publish statements on religious themes under the mantle or provision of free speech who are later prosecuted by foreign courts for blasphemy.

And I'm not suggesting this should be addressed in any way in this libel tourism bill. But there are some commonalities, there are some intrinsic parallels.

And do you have any idea as how we might curtail the prevalence of the religious defamation cases and what we should do about that as well?

MS. SILBERMAN: Well, you're quite right that there are -- where one could find a number of -- sorry, one could find a number of different issues where the assertion of jurisdiction and foreign libel defamation laws affect a much broader set of issues like the one you mentioned.

And in some sense, this approach would address some of those -- you'll see it in the intellectual property area as well. And it's one of the reasons that, you know, I urged -- I mean, it may fall on deaf ears, you have enough to do. But that if one went at the subject of the recognition in foreign -- of recognition and enforcement of foreign judgments at the federal level, that is a comprehensive statute, I think you could address many of these different things.

I think you would get uniform federal law on this subject. I think you could nuance it sufficiently so that it would apply when U.S. interests are affected. And I think it would stop the sort of dis-uniformity that's getting done now with this patch work of different bills. I mean, you have a uniform act, now you have a revised uniform act, now you have the New York Statute, you have Illinois Statute.

This is a problem at the national level. And it does involve -- whether we differ or not -- it does involve the relations between our country, and other countries, and other courts. And it should be the Congress that takes up and addresses these issues and decides what the appropriate realms of our interests are.

REP. FRANKS: Thank you, Professor.

And Mr. Chairman, thank you. I know that, you know, free speech is one of the great core foundations of this country. And I hope that we can be wise in our approach in how we protect it against whatever threats, whether they be foreign or otherwise. And I appreciate the panel for being here. I appreciate the chairman for making this hearing possible.

REP. COHEN: Thank you, Mr. Franks.

I now recognize the -- recognition sought by another member of the panel, Mr. Coble.

(Sounds gavel)

You're recognized, the gentleman from North Carolina where Duke was defeated by Carolina.

REP. HOWARD COBLE (R-NC): Thank you. Well, Mr. Merritt might take umbrage with this since he's an avid Duke fan.

Thank you, Mr. Chairman, good to have the panel with us. Mr. Chairman, I want to the chair for having recognized Pat Schroeder. Ms. Schroeder served as a distinguished member of this committee and a distinguished member of the House of Representatives. And it is good to have you with us, Pat.

And thank you, Mr. Chairman, you and Mr. Franks, for having called this hearing.

Dr. Ehrenfeld, are there any other cases that have been brought to your attention where American writers have been sued in other countries for books or works that were written and published in the United States?

MS. EHRENFELD: Yes. Several authors that have been actually threatened with libel law suits by the same Saudi had contacted me when they received the letter asking me so what do you do? How can you defend yourself? What to do?

I also heard from others who not only were threatened to sue and they had to apologize and retract, not only Americans, Canadians too, but also people were sued in France by the same Saudi. He has a small industry. He keeps many lawyers busy and well paid. Yes, I have.

REP. COBLE: Okay.

MS. EHRENFELD: And I know that it restricted their ability to publish other books, especially if they were focused on national security matters such as terrorism.

REP. COBLE: Alright, thank you.

Ms. Handman, with regard to Representative King's bill, that's 5814 in the 110th Congress, what triggering mechanism or other factor would provide U.S. courts with personal jurisdiction over the plight of who initiates a defamation suit in a foreign court?

MS. HANDMAN: Well, I -- an awful lot of the cases that we have been talking about and that we talk about in our -- is this on -- that we talk about in our papers are actually U.S. citizens who choose to go overseas to sue. So there would clearly be jurisdiction over them because they're U.S. based. I think of a lot of the celebrities in Hollywood, for example, or a number of businessmen, U.S. businessmen who have chosen to sue overseas because of the favorable laws in England.

So even applying the most traditional due process mechanisms, those kinds of claims would be covered. And then it reaches further out there; a lot of these international businessmen have dealings in the U.S. The case, for example, involving The Washington Times right now which -- where they didn't publish in the U.K. they only published here.

There were no hard copies of The Washington Times in the U.K., but there were Internet hits, 40 of them or so in the U.K. That was brought by a -- an international businessman who was doing business with the provisional government in Iraq who had many ties to U.S. businessmen.

And he would be subject through the very traditional mechanisms of jurisdiction and due process to the claims either in this bill or -- and with the suggestions I had made to expand the declaratory judgment remedy and amend this -- the existing bill, the H.R. 6146, to include a declaratory judgment remedy, but within -- staying within the jurisdictional limits of due process.

I do agree with Professor Silberman that that obviously is going to be the watch word, but it would taken to the limits of due process and it will be for the courts to decide whether someone who sues overseas who files a law -- who serves process here -- has an expectation that he could be foreseeably brought to the U.S. to respond to a suit here.

REP. COBLE: Okay. I thank you for that.

Mr. Brown, in wake of the potential law suits, how would you advise an American writer preparing to write a book or article that -- or work? What advice or counsel would you extend?

MR. BROWN: Get libel insurance, right? I mean that's if the --

MS. EHRENFELD: You can't get it.

MR. BROWN: Yeah. The first and foremost response to your question, I can remember hearing Rachel Ehrenfeld talk about her sleepless nights wondering if the judgment against her would be enforced back in the U.S.

I can recall when I was representing Mr. Mirza, whose story I discussed in my written testimony, he spent an afternoon in his attic looking for his homeowner's insurance policy to see if by chance, although he couldn't remember, but just to see if by chance there was some rider or provision in the policy that would give him coverage in the case that there was a libel judgment or a libel action instituted against him. He, like Dr. Ehrenfeld, was terrified of the financial -- potential financial repercussions.

REP. COBLE: Yeah.

MR. BROWN: And as Laura and I can both tell you and tell the subcommittee, when we advise clients who are publishing on any matter of global concern today, whether its international finance, or global terrorism, or anything related to the world of celebrities, or high profile people, you go into it today assuming that you've got to keep your eye on U.S. law, as well as the law of the U.K. because of the growing problem of lawsuits in that jurisdiction. And I would just like to add one quick note on the personal jurisdiction issue when we talked -- you'd asked the question about triggering mechanism.

There is an analog here, I think, to the Alien Tort Statute that if Congress were to contemplate creating some kind of substantive cause of action for a conduct that took place entirely oversees, the Alien Tort Statute provides a perfect example and it's been around for 200 years, of Congress creating subject matter jurisdiction for this kind of conduct. And under the Alien Tort Statute there have been cases where foreigners have been served with papers while in the United States.

That is one of the truest and surest ways to get personal jurisdiction over someone. And you may remember that Dr. Karadzic was personally served with an Alien Tort case when he had just finished dining out at a New York restaurant in the 1990s.

And that is a wonderful example of how U.S. law, when it has a bite like a substantive cause of action in the Alien Tort Statute, can ensure that people who visit out country ultimately have to answer to our laws.

REP. COBLE: Thank you, sir.

Mr. Chairman, I see the red light. Could I put a quick question to Professor Silberman?

REP. COHEN: Without objection.

REP. COBLE: I thank you for that.

Professor Silberman, while we're all concerned about foreign suits that raise enormous concerns for American writers, can you tell us whether you're familiar with any foreign libel plaintiffs who are seeking to enforce their judgments here?

MS. SILBERMAN: I don't know of any off-hand. I think maybe some of the other witnesses who do handle these cases are more likely to know than I.

REP. COBLE: Anyone else want to weigh in on that?

MS. HANDMAN: There are two cases that --

REP. COBLE: I mean briefly because the chairman has given me an extra time.

MS. HANDMAN: Sure. The two cases I was involved in, in Bachchan and Matusevitch, they had both come here to the U.S. to enforce that judgment.

So those are -- and then those decisions came out and that's had something of an in terrorem effect, I think, discouraging people from coming here and that leaves Ms. Ehrenfeld in the untenable position she's in because bin Mahfouz has not come here to enforce the decision. He just has it on his website as a cautionary note to all writers who want to write about him.

REP. COBLE: Oh, got you.

Okay, thank you all.

Thank you, Mr. Chairman.

REP. COHEN: Thank you, sir.

I'm going to ask a few more questions, a second round, if anybody else wants to. But Mr. Brown, do the English courts ever decline jurisdiction over American authors under the theory that we have a different standard here; do they take that in consideration at all?

MR. BROWN: I am not familiar with those cases. There may be one in some of the written testimony where there have been examples of English courts backing down on personal jurisdiction grounds.

Laura, do you have?

MS. HANDMAN: Yes, I was an expert in one of them for Barron's in London in the Osicom & Chadha case which I mentioned in my testimony.

There they did find jurisdiction over a California technology company and its president, but they exercised a forum non conveniens and dismissed it based on forum non conveniens, which is a discretionary basis saying that the bulk of witnesses and testimony would be overseas.

That has been more the exception than the rule in London in my experience in these cases.

REP. COHEN: Professor Silberman, do you want to comment?

MS. SILBERMAN: No. There are some examples with respect to abstention both in Canada and the United States. The only thing I wanted to say is that the suggestion that I made about adding to the bill a provision that said we would not recognize a judgment when the foreign court exercised what we might characterize as an exorbitant jurisdiction from the U.S. point of view.

And that might well be situations where the publication is in the U.S. and it gets picked up and there are a few hits on the Internet site. The Europeans, the English, they have jurisdiction in a very different way than we do. They will take jurisdiction in those kinds of cases.

It is true that most of those countries, Australia and England, I know, will issue damages only for the amount of injury that occurs in their jurisdiction, unlike in the U.S. But nonetheless, that has the in terrorem effect that we were talking about.

But a provision that said when a foreign court exercises a jurisdiction -- exercises jurisdiction on a basis that's perceived as unreasonable in the United States, we would not recognize that judgment.

I think that is, in fact, the law in the various states as well, but its interpretation differs.

REP. COHEN: Let's assume you sold a lot of books in England and it was still they ruled against you. Isn't it just as much an infringement on the American belief in your right to express your thoughts?

And shouldn't that judgment over there, even though if there was a lot of damages there, shouldn't it still be un-enforceable here because it's inhibiting our speech?

MS. SILBERMAN: Yes, if in fact it -- if it inhibits our speech, yes. I am merely suggesting that there are really two prongs. I wasn't suggesting jurisdiction as a substitute for public policy.

I was really suggesting as the law is now that there is a defense on grounds of public policy and there is a defense on grounds of an unreasonable exercise of jurisdiction.

REP. COHEN: Dr. Ehrenfeld talked about "teeth." If we permitted attorneys' fees, would that not be -- I mean, maybe they'd be like, you know, tiny baby teeth, but they'd be teeth. Would that be something that would be okay?

MS. EHRENFELD: Attorneys' fees --

REP. COHEN: When you bring the action -- you bring an action to say -- if you want to enforce your judgment you bring in your action in our laws saying it is un-enforceable. And if you're successful in saying that its -- they tried to bring their action here to enforce your judgment and they're thwarted because of our law that then they have to pay attorneys' fees for the -- to the prevailing party here?

MS. EHRENFELD: That is certainly "teeth" and we certainly have given awards for prevailing parties in other situations when we deem that -- when we deem that necessary, yes.

REP. COHEN: Do you both agree, Ms. Handman and Mr. Brown, something that would be acceptable?

MS. HANDMAN: Yes, Your Honor. That is indeed what I have --

REP. COHEN: I like that, but this is America, not England.

(Laughter.)

MS. HANDMAN: Sorry, and I -- habit. Mr. Chairman, yes, that's the amendment that we've suggested and it would give teeth and it's very similar to anti-SLAPP statutes --

REP. COHEN: Yeah.

MS. HANDMAN: -- which are now in 25 states where there are attorneys' fees when someone brings an action that burdens speech which indeed this would be a classic example of.

And I would suggest that the attorneys' fees should be able to reach any fees that were encountered in the British action as well or the overseas action as well, any incurred there, that would put a little extra teeth in it, not just for defending the enforcement action, but also for whatever was incurred overseas.

And in a way, its only fitting given that the British have that rule of fee shifting that's in place and has had a huge impact on American suit over there.

REP. COHEN: Yeah, that caught my attention when it was mentioned in the testimony. You know, certainly it would be a good "teeth" to work with Dr. Ehrenfeld. And then in that -- you know, I did the SLAPP case, the suit -- statute in Tennessee.

MS. EHRENFELD: Oh, congratulations.

REP. COHEN: Thank you. Strategic lawsuit against political -- they didn't really like that too much.

Mr. Brown?

MR. BROWN: And maybe I could just add to that. In my written testimony, I discussed the different outcomes involving lawsuits brought against Cambridge University Press in U.K. and Yale University Press in California.

You know both were involved in books dealing with financing of global terrorism. In the Cambridge case, the books were destroyed. Cambridge capitulated and wrote a very self-serving and apologetic letter to Mr. bin Mahfouz, who was the plaintiff there which Mr. bin Mahfouz has well-publicized.

In the Yale case, Yale was in California. They had access to the California anti-SLAPP statute which they used and they filed a notion to dismiss the case. And the plaintiff in that case ended up dismissing even before the court had an opportunity to hear the anti- SLAPP motion.

And as a colleague of mine pointed out to me just yesterday, the lawyer for the plaintiff in that case said, sounding more like a Harvard quarterback that, quote unquote, "Yale came at us hard" and that's why they decided to drop their action in the face of the anti- SLAPP motion. So it is quite effective, that fee shifting provision there.

REP. COHEN: Yes, Dr. Ehrenfeld, please.

MS. EHRENFELD: In the case of Cambridge University Press, interesting to note that the lawyers for bin Mahfouz were asked why did he sue only the publishers and not the American authors of the book; they were not sued.

And he responded that because Cambridge University is here in England, it's easy to sue. It's difficult to sue American writers now. This was following the New York legislation.

So I think that with some, even that was a deterrent, but despite of what happened in Cambridge and despite the big publicity, there are the authors or one author, the living author of Cambridge -- of "Alms for Jihad," the book that Cambridge University pulled, cannot get a publisher here in the U.S. because they're afraid that it will reach England and they don't want to publish it. It's a very good book, it should be published.

In addition, there are -- Cambridge University Press actually defamed the authors -- the American authors, but they cannot take any action against it because they don't want to get involved in expensive lawsuits.

So the more deterrence we have did, the bigger the teeth I think, the better it will be.

REP. COHEN: So you like the attorneys' fees idea.

MS. EHRENFELD: I do.

REP. COHEN: And what if we require kind of a role-reversal, the attorneys' to give a third of whatever they get back to their client.

(Laughter.)

MS. EHRENFELD: You have to ask the attorneys here.

REP. COHEN: That would lose the bar support. We can't do that.

Is English defamation law at all changed to move more toward our type of First Amendment protections, Ms. Handman?

MS. HANDMAN: Yes, Congressman, it has. And I take some small measure of credit for that. I do think the decisions in the U.S. have had that effect and that's what I'm told by my colleagues who practice there.

But it is nowhere near where our law is. The burden of proving truth is still on the defendant. The Reynolds case which is the case that has allowed some small measure of fault to be considered so that if you make a mistake.

But if you did all the things that the Reynolds court said, get comment, act fairly, a whole host of -- a list of sort of what constitutes responsible journalism then -- and it's matter of public concern and they define that very narrowly so that much of what in America would be deemed a matter of public concern would not fit within that definition. Then there, even though you made a mistake you may well be not libel, and that was the case in the Jameel case that was recently decided against Dow Jones. But in that case even what it is, is a standard very different than what the actual malice standard.

The actual malice is basically deliberate falsehood. It is knowing its false or having serious doubts about the truth and publishing it anyway. It's basically a bad faith kind of defense and it's subjective, it's what's in the reporter's head.

It's not a what-do-good-journalists-do standard which is more like a negligence standard, that's a lower bar, but when there is public figures in the U.S., they have to prove that higher bar and it's intentionally so because that's the ability to make mistakes basically is what New York Times vs. Sullivan enshrines. So they are not anywhere near that and that's what I hear from my colleagues over there and that's my own perception. Even the lawyers who got that great decision in the Jameel case say we're nowhere where you are even on that false standard.

And also one opinion, they have a sort of reasonableness test. We have if it's -- basically if it's not a statement provable as true or false, so it's opinion and you can't be sued for it. And then the judge doesn't get to say whether it's a good opinion or a bad opinion.

That's a huge difference also, and there are many others smaller things like that that in terms of jurisdiction, in terms of statute of limitations, that make a huge difference as well.

But those are the main things and it's really not anywhere near where we are yet.

REP. COHEN: Thank you.

Is there someone else -- who wants to comment?

Professor?

MS. SILBERMAN: If I could just briefly. Of course, they are changing. I think we've seen that the European Convention on Human Rights and The International Covenant of Civil and Political Rights are having an impact on the laws of many countries.

And I think it's important to remember that when we talk about what I characterized as the nuance, as how far we want to go and who is affected, whether it's a foreign plaintiff, whether it's an English plaintiff who's injured in England.

I mean we could just take the mirror image. Imagine a place that had no protection for libel law, no defamation law whatsoever, and they publish and a U.S. citizen is injured and wants to sue from a defamation.

It meets with our standards and so there would be a cause of action, but there would be no protection on the foreign law. And the United States issues a judgment. I mean we would think that we had the relevant interest when there was a publication here and there was a U.S. plaintiff.

We would think we had every right to regulate that regardless of what had been done in the other country. And so I just suggest as I often do in these kinds of cases for us to stand in the shoes of the other country and look at where the publication is, who is the resident -- all of those things will be relevant in terms of the public policy.

And I think it is important that these changes are occurring and that they're not the quite the same wide gaps of difference in the libel laws.

MR. BROWN: And I would just add to that I think briefly that the fact that we're here today is something that is putting pressure on U.K. law makers. I think you'll see in the written testimony that there have been debates in parliament quite recently about the phenomenon of libel tourism.

And I think there are many MPs who are embarrassed by what they see happening in the U.K. courts and I think the publicity we're giving to the issue today is another thing that will help perhaps reform -- reform U.K. libel law.

The Reynolds defense that Laura mentioned, it's only 10 years old. We've had 45 years experience in the New York Times versus Sullivan that I would say that as it has been described by some as a test in which judges look back after publication and make some kind of evaluation about whether a publication was fair -- fairness is not a concept in American libel law.

And for those of us who practice in this area, one of the most famous articulations of that is Judge Leval in the famous Westmoreland case who said that a republication can be relentlessly one-sided and unfair, and still be protected by the actual malice rule.

And I think that the -- in all likelihood, the Reynolds defense will never catch up with where actual malice is. And one final point, I think just another twist in U.K. libel law is that they still routinely enjoin authors and publishers.

And I think there is nothing more perverse than the fact that Dr. Ehrenfeld here, who made no intent at all to have her book published in the U.K., is now, I understand, it's still under an injunction, right.

And could be held in contempt of court if a book that she never intended to be available to a U.K. audience somehow is published there again or is available there again. I can't imagine a more perverse miscarriage of justice than that.

REP. COHEN: Doctor?

MS. EHRENFELD: Regarding the Jameel case and the changes in the British law, the decision Lord Hoffman said in that case and I think that the decision was that the measure is how responsible reporters report.

So who will decide who is the responsible reporter? Should we leave it to the court? That's an important question. So I don't think that that's really -- it's a movement towards a change, but it's not the way you change.

Regarding the other changes, I understand that the British bar is now discussing changes in the structure of payments of defendants in libel lawsuits. That's as far as I know the changes that they are discussing, but not really about the libel laws themselves.

REP. COHEN: Thank you.

I don't believe there are any further questions and if not I would like to thank all the witnesses for their attendance and their testimony.

Without objection, members will have five legislative days to submit any additional written questions which we'll forward to the witnesses and ask you answer as promptly as you can; that will be made part of the record.

The record will remain open for five legislative days for the submission of any other additional materials. Materials have been forwarded to us and the request had been made to have them included in the record.

And without objection, they will be made so. A statement from the World Press Freedom Committee with appendices, a letter from John J. Walsh (ph) to me, and statement from the American Association of American Publishers, a statement from the American Jewish Congress and a statement from the American Civil Liberties Union.

Without objection, that's done. I thank everyone for their time and patience. This hearing of the Subcommittee of Commercial and Administrative Law is adjourned.

END.

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