Update (12:27 p.m.): Speaking of Islamofascism, Pakistan’s Benazir Bhutto, first female PM of a Muslim country, has been assassinated. Read more at Hot Air and Michelle Malkin’s.
Later…On a lighter note, my review of Net, Blogs and Rock ‘n’ Roll has been posted.
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Jeff Jarvis, blogger, journalist, and media critic I credit for my appearances on MSNBC a couple years ago, points to an article about an American author sued in an English court for libeling a Saudi.
Rachel Ehrenfeld wrote in Funding Evil: How Terrorism is Financed – and How to Stop It accused a rich Saudi named Khalid Salim A. Bin Mahfouz of funding Islamofascist groups like al-Qaida.
Ehrenfeld sought protection under New York state law and asked that the judgment against her be rendered unenforceable, but the courts contend Bin Mahfouz is not subject to New York jurisdiction. It’s a procedural matter, but substantive to Ehrenfeld all the same.
Jeff is concerned, perhaps rightly so, that such a judgment chills free speech and postulates that such actions could extend to speech that merely criticizes Islamofascists. It’s not so far-farfetched, once you consider that Islam is incompatible with the West, given its propensity toward free expression, which includes the right to offend. But are we talking about libel, censorship, or both? Ehrenfeld accused the man of funding terrorism. What “free speech” right does she have to do that?
As scary as it seems, anyone who publishes anything in print or online is subject to libel laws all over the globe. Either Ehrenfeld libeled Bin Mahfouz or she didn’t. But what if she did? One can only imagine the resultant damage of being accused of funding terrorism.
Findlaw’s Julie Hilden says libel laws in the UK are more “pro-plaintiff” than such laws in the US. She briefly analyzes what libel is and the standard of proof applied if the plaintiff is a public figure as opposed to a private individual. The UK doesn’t have a strong legal tradition of tightly defining libel and requiring standards of proof that leave wiggle room for defendants. The US has a longer and much stronger tradition of giving defendants the benefit of the doubt. Indeed, the very idea is embodied in our Constitution.
If the UK is censorship prone, that’s a problem. Hilden writes:
Make no mistake, this is a clash of cultures: one that so values speech and openness that it leaves significant room for irremediable, damaging error; and another that so values reputation and privacy, that it errs in favor of what is, in effect, government censorship accomplished by the courts.
In other words, under America’s legal system, one can write or say irremediably damaging things about someone, but if the subject is a public figure and if the alleged defamer had no knowledge and did not act in reckless disregard for whether the accusation was false or not, the defamer is not guilty of libel. Dig?
The US v. UK libel laws discussion should concern everyone, of course, but more interesting is the Internet’s role in all this. Can Americans claim “No jurisdiction!” in foreign courts (and vice versa) when the Internet has “globalized” practically all aspects of communication? As Hilden says, writers are responsible for whatever they publish, for whatever ends up getting republished, and even “foreseeable republication.” People in the UK read this blog, for instance. If I libel a UK citizen from my perch in the nation’s capital, I may be liable under UK law for damaging that person’s reputation in the UK. (I hope I dig.)
Damages awarded by a jury in defamation cases hinge on the level of damage (perceived or actual?) to the defamed person’s reputation. Theoretically, the more widely published the libel, the more damaging it is to the person’s reputation. Thanks a lot, Internet!
In that regard, we Americans should be subject to libels laws around the globe, no matter how speech-suppressing. Hilden tacitly acknowledges that if a writer targets a foreign audience, he should be subject that country’s libel laws. As Americans, such a scenario leaves us queasy and shouting, “First Amendment violation!” But are foreign government’s obligated to honor our Constitution? Of course not. Hilden’s proposed solution to the mess (emphasis added):
Rather than contending with these elusive trans-hemispheric cases as the Internet slowly makes borders and oceans less and less relevant for distribution and reputation purposes, it might make the most sense for the U.S. and U.K. to enter into a defamation treaty. The treaty would ask both U.S. and U.K. courts to give up jurisdiction in defamation cases in which the other country has a stronger interest, based on factors such as the intended dissemination of the allegedly defamatory statement, personal jurisdiction over the defendant, and the location of the plaintiff’s primary reputation, and therefore, of his or her alleged damages.
A workable solution? (I still want to go to the UK, by the way, despite its pro-plaintiff, censorship-like quality. Working on it!)
One concern I have about foreign laws is the censorship of religious speech. It may seem ridiculous to us Americans, but I envision a world in which sharing the Gospel will be considered hate speech. Isn’t it already the case in Canada? Think it can’t or won’t happen here? American politicians already tried to make it so.
Remarkable thing, the Internet. In fact, the implications of digital technology specifically are far-reaching and profound. As knowledgeable as we think we are, we can only guess the far-ranging consequences of the so-called digital age. Even if you don’t have a blog or video blog or podcast, the implications of all this technology will affect you, too.
This morning I finished writing a review of Net, Blogs and Rock ‘n’ Roll, which examines one aspect of the digital age: how people discover entertainment products like music and how creators of these products and marketers can make digital discovery easier. Fascinating stuff. I’ll post the link once the review’s up on BlogCritics.
