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.
Thursday 2nd April
New York
Still haven’t acclimatised to the 5 hour difference and wake very early once again. I’m not alone as the first people down for breakfast in what is a very big hotel are another MP and myself.
In today’s New York Times there’s an item about post office closures in the US due to customers using the internet rather than their post office. Unusual to read a story about post office closures without a UKIP spokesman blaming it all on the EU!
Our first meeting is in the heart of the financial district of Manhattan, just up the road from the Stock Exchange.
When we arrive we are in the middle of a film set and are herded out of shot by a frantic Grip or Best Girl or whatever the job title is.
It looks like a big production given the number of people, lorries, vans, lights and cameras. It turns out it is a TV pilot titled ‘Rubicon’. Given the numbers involved and the fact they are filming on location in the most expensive city in North America, it is obviously a big budget effort.
Our meeting is with the New York State Solicitor General and her Special Counsel who happens to be British.
We ask about the impetus behind the New York State Libel Terrorism legislation – note the word Terrorism in the title, a sure fire way of getting something onto the statute book in the US is to include the word in your bill.
The Act came about partly as a result of a book ‘Funding Evil: How Terrorism Is Financed, written by an American, Rachel Ehrenfeld, published in the US, but available on Amazon to anyone in the UK. 23 copies of the book were sold in the UK that allowed Sheikh Bin Mahfouz, a Saudi citizen, to use a British court to sue Rachel Ehrenfeld for libel because of something she wrote about him in the book that he claimed impacted upon his reputation and business interests in the UK.
In 2005 Ms Ehrenfeld refused to travel to England to defend herself in the High Court and a default judgement was entered against her. The allegations against Sheikh Bin Mahfouz were found to be wrong in law and judgement was entered against Ms Enrenfeld for £30,000, together with £100,000 costs.
Ms Ehrenfeld sought an order from the American Federal Courts that Sheikh Bin Mahfouz should not be able to enforce the judgement in the United States. The court held it was unable to make such an order against a foreign national.
It was in response to this that the New York Senator we met yesterday, Dean Skelos, championed new legislation to protect New York based writers from libel judgements in other jurisdictions unless a New York court held that the judgement satisfied the 1st Amendment.
Our next meeting is with Jonathan Bloom a leading lawyer who specialises in media and First Amendment, intellectual property, and art law.
He clearly knows his subjects but I don’t think we learn anything new, other than just how complicated it is going to be to find a way to defend the long held rights of people wishing to access our courts to avail themselves of the protection of UK libel laws against writers and publishers based outside the UK – essentially in the US – who apply a different standard and set of principles to what can be published.
Our final meeting of the day – we have a dinner in the evening so we haven’t finished work yet – is with New York Assemblyman Rory Lanceman (D-Queens, NY). He co-sponsored the Libel Terrorism Protection Act.
He cited the Rachel Ehrenfeld case as the impetus for the change in the law and there was much discussion about the fact that someone who takes money from the sale of a publication in one jurisdiction should not be protected from the consequences of their actions simply because they live in another jurisdiction with such an Act as the LTP.
He was very gracious about the UK and our democratic heritage that led me to point out afterwards the oft forgotten facts about our ‘democracy’ that is based on an unelected Head of State, an appointed Senate (House of Lords) and an electoral system that gives majority power to the largest minority.
I can live with the first, given the alternative possibilities, but will never be comfortable with Britain being described as a true democracy while the latter two remain unreformed.
Committee members with Assemblyman Rory Lancman in the British Consulate, New York.
Select Committee trips are a privilege but they also involve hard work and as one of my MP colleagues reminded me in advance of our dinner with the British Consul this evening, there is no such thing as a free lunch.
This is my fifth overseas trip with a Select Committee in twelve years and on each one the Embassy or Consulate or High Commission has arranged a reception or dinner at which guests are invited to meet us.
The guests are usually people with business, trade or cultural links with the UK and leading ex-pats from the city we are visiting. Our job, and I see it as a job, is to act as ambassadors for the UK. That means easy on the drink and don’t do what I did in Athens and set fire to the Ambassador’s garden.
The venue was the British Consul’s penthouse apartment in Manhattan and the guest list included media representatives from the BBC and the Telegraph, the editor of the New York Daily News, Mayor Bloomberg’s former communications director, Clinton’s former senior pollster, a university professor and Sir Harold Evans former editor of the Sunday Times when it had a reputation for investigative journalism.
I think it’s the first time I have actually enjoyed one of these events and the round table discussion flowed way beyond the appointed time we were all supposed to leave.
A misty evening greeted us for the short walk back to our Hotel.
Wednesday 1 April 2009
New York
In the world hierarchy of daily newspapers the New York Times considers itself the equal of any. It is the largest metropolitan newspaper in the US and is part of a stable of 18 newspapers including the International Herald Tribune and The Boston Globe.
We hear the views of the senior editorial team and the business managers about the 24 hour information age and how a global newspaper competes.
Editions of the NYT are being printed at over 34 sites around the world. The day starts in Asia, moves to Europe and then the US that is obviously reflected in the different editions the newspaper produces.
They see their role as to enlighten society through accurate information. It is a refreshing attitude and again another conundrum is highlighted when we are informed that there is no press complaints commission or other independent body people can complain to about newspaper coverage in the states.
They say the NYT takes complaints seriously and they have their own internal mechanism to deal with them and publish a regular corrections section.
We have talked a lot in the UK about the need for newspapers to give people prior notification of a story that concerns them. As there is no legal mechanism to restrain a publication in the US they see no reason not to give prior notification to the subject of a story.
They also view website comments differently and see it as their duty to vet comments for approval before being posted – this from the newspaper with the most viewed newspaper website in the world and with the most comments.
Our next meeting was with the News Corporation, Rupert Murdoch’s empire of TV, newspapers and other broadcasting platforms around the world.
Given the right-wing nature and content of Fox News in the States and the Sun newspaper in the UK there was some amusement at the screen in the lobby declaring political balance.
Our hosts are the senior lawyers for News Corp and our discussions cover ethics and processes. Again there is a strong defence of the US system and the case was made that as US law protects the publisher it assists the uncovering of wrong doing by powerful or wealthy individuals.
I am drawn to this point of view but I have one tiny, although very important doubt. I keep asking myself what about the reputation and livelihood of an individual whom a newspaper or broadcaster adversely affects and their lack of finance to correct what has been put in the public realm.
It’s great when a Nixon is found out for lying, a Clinton uncovered for ‘not having sex with that women’, or a Bush for protecting members of the Bin Laden family. It’s not so good for the ordinary man or women in the street who gets caught up in a media storm and subsequently losses their livelihood despite having committed no crime. They have neither the resources nor the contacts to undo the damage to their lives. With the development of no win no fee arrangements in the UK, in theory at least, they might get a correction, an apology and even some compensation. From what I can deduce in the US they would stand no chance at all.
Onto the court house and a meeting room overlooking the holding penitentiary where the alleged $50 billion investment fraudster Mr Bernard Madoff is being held. It is claimed that we may be able to see him if he decides to look out of the window in his cell.
Our meeting is with Judge Robert Sack, US Circuit Judge of the US Court of Appeals and the author of several books on libel law.
His view of the conundrum of tougher libel law in the UK not leading to more responsible publishing is cultural, and the same conundrum that leads to different states within the US having different laws. Again it is the First Amendment to the US constitution that gets mentioned almost as if it is some cultural icon of American that in truth has no equivalent in English law. Not even article 10 of the European Convention that supposedly guarantees free speech can be said to match the eloquence and widespread understanding of the 1st Amendment.
Our final meeting of the day is held at the British Consulate on
He was the journalist who drew attention to the links between the Bush and Bin Laden family that was featured in Michael Moore’s film Fahrenheit 9/11.
We discuss freedom of speech and for the first time hear a mild criticism of the US system, but it is only in respect of his view that the US media has too cosy a relationship with the White House.
I’m still getting lots of calls from UK media – local and national, all adding to my mobile phone bill, that the same media will complain about when it is published in 12 months time!
Most are about the digital switchover, empty shops in Torquay, or parliamentary questions tabled last week. None are about allowances.
I talk down the empty shops story when the national media ask questions as I don’t think it helps to associate our town centres with failure, not least because there are other failing town centres in areas that don’t have tourism as one of their primary industries. On the other hand I don’t hold my punches if the media is local as our local decision makers could do much more to help struggling small businesses and locally owned shops.
Ate in a great diner a few doors down from the Hotel. Much cheaper than the average Manhattan restaurant, but still a few pounds more than one would expect to pay in central London.
31 March 2009
Albany, NY State
There is hardly time to unpack as we are off again to New York
We have time to visit the New York State Museum in Albany and view the 9/11 exhibition. I didn’t know that the black boxes – two for each plane – were never found. They are believed to have vaporised.
Albany, the state capital of New York, not the most attractive city in the world
It was budget setting day in the State Capital and the Republican’s tails were up hoping to influence the Democrat controlled chamber. Our meeting was with Senator Skelos, the Republican minority Leader in the State who was behind a piece of State legislature that seeks to prevent libel judgements made overseas being enforceable in the USA.
Freedom of speech is sacrosanct and enshrined in the 1st Amendment to the US constitution. The attitude seems to be that there are no circumstances where speech should be curtailed or prevented, particularly by a foreign court - in the case that led to this legislation a
The attitude of the State politician is somewhat intransigent but I guess this is partly a front for the fact that he might not be the brains behind the legislation and he is actually out of his intellectual depth explaining it to us. Now Senator Skelos if you are reading this in the US prove yourself a hypocrite and sue me! However, if you are reading this in the UK then I apologise unreservedly for suggesting anything other than the fact that you a man who fully understands the intention of the legislation and how it should be interpreted.
I actually admire the Senator’s position on freedom of speech and share it. His view, shared by other politicians we have met on this trip, is that the truth will out and you don’t need the law to protect you - only a free and fair press.
We meet with a couple of New York State University professors of law who brief us on the detail of the law the state has passed and the law that is being proposed for the Federal Government.
They offer us academia’s view of the laws of libel in the US and how they compare with the rest of the world which is interesting but doesn’t really add much to what we had already uncovered from non-academic witnesses to the enquiry.
A train ride down the banks of the Hudson past the WestPoint military acadamy and onto the end of the line at New York's Penn Station.
An abandoned castle in the middle of the Hudson on the journey from Albany to New York
Monday 30 March 2009
Washington
Met with former Democrat presidential hopeful Patricia Scott Schroeder, now President and CEO of the Association of American Publishers. Interesting discussion about the difference between the US and UK libel laws. In the US the libelled has to prove the error, in the UK the publisher has to prove their facts.
Committee members and staff with former Congresswoman Pat Schroeder now President and CEO of the Association of American Publishers.
Had lunch with the American Library Association who campaign for freedom of speech and in defence of the first amendment. They say they would not sanction against holocaust denial and would defend the right to insult. They support current US libel laws and oppose Patriot Act restrictions on freedom. I asked whether they believed the Patriot Act would have prevented 9/11 if it had been on the Statute Book at that time. The answer was an emphatic no.
Visited the offices of the Washington Post and met the General Manager, Bo Jones and their legal team. The message was that the law is less strict in the US but the quality press check their facts more. This is turning out to be the conundrum between the two systems. The one that carries the least penalty seems to encourage the fact checking one would welcome from the media in the UK.
The committee and hosts with Ben Bradley at the Washington Post
The principle followed by the Post is to always double-check your facts.
The former Post Editor, Ben Bradley, who broke the Watergate Story and was played by Jason Robards in the movie ‘All The Presidents Men’ met us and reinforced the message about ethics and double checking facts. He fears the loss of investigative journalism as budgets are tightened.
On the Hill we had a discussion with congressional aids preparing for a Bill that would make libel judgements outside the US unenforceable within. This is something we are going to explore in more detail in Albany tomorrow.
We later met Congressman Steve King (R-Iowa) and discussed this attempt to change the law and prevent UK libel actions being enforced in the US. We heard many more defences of the 1st amendment and freedom of speech that I am beginning to warm towards. The evidence so far is highlighting that the UK's problem is the lack of a written constitution.
The railway that runs for around 200 yards linking the Congress with the outbuildings. Is this the original politician’s gravy train?
On the subject of so called gravy trains, today is the day when MPs expenses are published and it is a very strange experience sitting on the minibus with 7 other MPs as mobile phones ring with journalists asking questions about them.
In fact I fear for my mobile phone bill at the end of the month given I have to pick up the cost of the overseas element of someone phoning me.
Among our number are the MP with the highest travel costs in the country, the MP with the highest claim in the West Midlands, and an MP who with his MP wife has clocked up very high living cost allowances.
I heard it half a dozen times as they spoke to their local papers trying to explain the difference between payments made to others, such as rent, rates, rail tickets, and claims paid direct to themselves, such as car mileage.
All were telling the same story that MPs for urban seats tend to have higher staffing and office costs that reflect greater casework activity. MPs for rural seats tend to have higher transport costs.
If MPs don’t visit their constituencies every week it will be reflected in lower travel costs.
MPs on the Government pay-roll will claim less through the published expenses because some of their transport and other costs will be met centrally – these costs will be hidden.
MPs engaged in select committee or all party group international activities will receive daily expenses while overseas and their travel costs will be met that may include those to and from their constituency – these costs are all hidden and not part of the published expenses much to the annoyance of MPs who don’t spend several weeks of the year on foreign trips.
My long-held conclusion is that we need complete disclosure and transparency. The present partial disclosure can mislead as it shields MPs whose actual costs are far greater than those published, or whose lower costs are simply a reflection of lower levels of activity within a constituency or on behalf of constituents.
On the Hill with part of the committee: Alan Keen MP (Lab), Adrian Sanders MP (Lib Dem), Philip Davies MP (Con), John Whittingdale MP (Con), Paul Farrelly MP (Lab) and Mike Hall MP (Lab).
At £164,000 my overall claim looks high in comparison to other MPs, but nothing is hidden. It reflects the cost of representing a constituency a long way from London on a line served by the country’s most expensive rail operator. It is consistent with the costs of employing four staff, one on London pay scales, and of maintaining two offices, one in the constituency that I return to every weekend when the House is sitting. Even though there are many cost factors beyond my control my claims are always well below the maximum that could be claimed because I always strive for value for money for the taxpayer.
It must be a quiet news day back home because I receive several calls from different media outlets on a number of issues that have nothing to do with MPs remuneration.
We left the Hill just as President Obama was arriving to make a speech before he was then due to fly to the G20 Summit in London. The number of police and other security vehicles lining the short distance between the White House and Congress was stunning.
We ate at the ‘famous’ Ben’s Chilli Bowl in Washington. A packed greasy spoon diner that Obama visited at the start of his Presidential campaign. I couldn’t resist Ben’s original chillie half-smoke hot-dog. Pity there’s nothing like it in Torbay, or anywhere in the UK as far as I can tell.
We left the city very late and arrived at our hotel in Albany just before midnight.
From the diary and photo log – a Select Committee trip to the States
Sunday 29 March 2009
We are conducting an inquiry into press standards, privacy and libel asking a number of questions and testing:
Why the self-regulatory regime was not used in the McCann case, why the Press Complaints Commission (PCC) has not invoked its own inquiry and what changes news organisations themselves have made in the light of the case;
· Whether the successful action against the Daily Express and others for libel in the McCann case indicates a serious weakness with the self-regulatory regime;
· The interaction between the operation and effect of UK libel laws and press reporting;
· The impact of conditional fee agreements on press freedom, and whether self-regulation needs to be toughened to make it more attractive to those seeking redress;
· The observance and enforcement of contempt of court laws with respect to press reporting of investigations and trials, particularly given the expansion of the Internet;
· What effect the European Convention on Human Rights has had on the courts’ views on the right to privacy as against press freedom;
· Whether financial penalties for libel or invasion of privacy, applied either by the courts or by a self-regulatory body, might be exemplary rather than compensatory; and
· Whether, in the light of recent court rulings, the balance between press freedom and personal privacy is the right one.
We are going to the States to investigate why people chose to take out libel actions in British courts against US publishers and whether there may something the US legal and publishing system can teach us.
On the flight from London to Washington with 7 other MPs – 4 Labour, 2 Tories and a Plaid Cymru - all the talk was of the Sunday newspaper stories on MPs’ expenses: Harry Cohen, Jacqui Lait and Bob Neill in the Mail. Jacqui Smith paying for porn on her allowances in the Express and the News of the The World.
There was comment also about Eric Pickles disastrous performance on Question time earlier in the week where he failed to persuade the audience that he needed a second home when his constituency was 34 miles from Westminster. According to one member of our committee he was led into a trap by on unhelpful comment from a Lib Dem. I proclaimed that whenever you – Tories and Labour – are in trouble you blame the Lib Dems. This got one of those I wish it wasn’t true laughs.
There is talk about visiting a Jazz bar or somewhere called the Marvin Gaye bar. One in our number wants to know if it’s a gay bar!
I only managed an hour or sos cat nap so spent much of the flight writing on my laptop.
Not the best flight – worse turbulence I’ve ever experienced. Pilot slowed and rose to 40,000 ft at one point to avoid worst of it. Added 15 minutes to the journey.
Took a while to get away from the airport and into town. A smoker in our group delayed us at the airport and it’s 45 mins to the Hotel.
Ate over the road and went to bed early. Don’t think anyone got to find the Marvin Gaye bar.
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