Friday 3rd April
New York Up early again and go and take some photos of some New York landmarks.
First meeting of the day is with Rachel Ehrenfeld and her lawyer Daniel Kornstein. I think it can be safely said that it is because of Ms Ehrenfeld’s work that we are where we are. As mentioned earlier it was her book about the funding of terrorism that prompted someone mentioned in it to take out a libel action against her that she refused to defend. The Libel Terrorism Protection Act was brought in to protect her and other New York based writers from the enforcement in America of libel judgements in other jurisdictions.
She is a diminutive woman who strikes a defensive pose holding onto a large book as if for protection when we meet. I’m not surprised really; this can’t be easy for her to face a grilling from eight UK politicians who want to know why she feels she shouldn’t be subject to UK laws.
I put it to her that if she was prepared to take money from the UK for her work she should submit herself to UK law. Her reply was that she hadn’t received any money from the UK.
Whether this is splitting hairs in that she would have received an advance from her publisher that would have been based on that fact that the book would be sold in the UK I cannot say.
I am given the impression that she is on some kind of mission against middle east terrorists and her view is that the truth is what she believes and it is for others to prove she is wrong, not for her to prove she is right. It is really a defence of US libel law rather than an intellectually sustainable defence of the decision not to defend herself in a UK court.
Our final meeting is with the United Nations Human Rights Committee.
Having established in my mind that the differences between our two legal approaches to libel are unbridgeable, I wonder whether there might not be an international dimension where an independent judgement of such issues might be possible.
The UNHR Committee looked into the issue of libel tourism last year and concluded that: The Committee is concerned that the State party’s practical application of the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as “libel tourism.” The advent of the internet and the international distribution of foreign media also create the danger that a State party’s unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest.
The Committee recommended that both systems should be reformed, but did not come up with a third way forward. They think Governments should re-define their libel laws and consider the idea of a so-called “public figure” exception.
In other words if you are a “public figure” you would need to prove malice on the part of a publisher in order for your libel action to go forward. But how do you define a “public figure”. Would the parents of a missing child who use the media in the search become public figures as a consequence? An important question in the light of the treatment the McCann’s received at the hands of some tabloids last year, and whom they successfully sued for libel.
They also propose limiting Conditional Fee Agreements that in the UK have allowed people of very modest means to take on wealthy newspapers and obtain retractions. Which comes first, freedom of speech or protection of the underdog?
The question our witnesses do not satisfactorily answer for me is what evidence they can show that libel laws in the UK have served to discourage critical media reporting on a matter of serious public interest.
Back at the hotel there is sign welcoming the American Society of Pathologists – very helpful if the guests go down with a virus
I will post some draft conclusions tomorrow.
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