When the National Enquirer ran a scandalous story alleging that Cameron Diaz had cheated on then-boyfriend Justin Timberlake in 2005, the actress sued the American Media publication in England — where the article only appeared online, on the tabloid’s American-based website, and had 279 hits before it was removed.
Diaz is only one of a number of high-profile Americans who in recent years have opted to file libel or invasion-of-privacy lawsuits in the U.K. because libel laws there are less stringent.
It was the issue at hand Monday evening at "Why Hollywood Celebrities Flock to the U.K. Courts," a Variety-sponsored panel at the Paley Center in Beverly Hills to discuss the differences in the ways defamation and privacy cases are dealt with in the respective regions.
Both the U.K. and the U.S. agree that they should protect people’s reputations. But in the U.K., the burden of proof rests on the publisher, while in the U.S., that onus is reversed — defendants must show that they are reasonably identified in the publication, that the publisher had a reckless disregard for the truth, that the statement made is truly defamatory and that there is damage as a result of that defamation.
In addition, in the U.S., public figures — such as celebrities, politicians or business leaders — have a harder time winning libel suits. They are considered by the courts to be fair game for the media because of their greater access to counter speech than regular people.
The U.K. welcomes U.S. citizens who want to sue for libel, allowing them to make claim against U.S. publications which have any sort of distribution in the U.K. — be it in a blurb on a single web page or in a book or newspaper that is sold in the U.K., even if it’s a paper like USA Today or the New York Times.
"The U.K. is regarded as a safe haven for people to prosecute libel action," said Paul Tweed, a leading U.K. libel lawyer who has represented Britney Spears and Jennifer Lopez in the British court system. "U.K. courts are attempting to ensure fair and balanced reporting with both points of view included in the article," he said, implying that the U.S. media does not always present all sides of the story.
Andrew Thomas, First Amendment lawyer who has represented TV networks and movie studios, disagreed. He said there are greater dangers in imposing “balanced” limits on the media. "In framing the Constitution, there was a recognition that if you’re going to have uninhibited debate about public issues, you have to tolerate a certain amount of error," he said.
Other than the burden of proof being on the litigant, there are a variety of reasons attorneys might refer their clients to the British courts, said Lynda Goldman, a partner with Lavely & Singer who has represented Diaz, Vince Vaughn and Lisa Marie Presley, among others.
In England, there are no depositions; so if a public figure "is not excited about spending days in depositions, that can be a positive thing," she said. If you win a case in the U.K., the loser must also pay you your legal fees and costs.
Also, when U.K. cases are resolved, a statement is made in open court by the publisher acknowledging the story was wrong — offering an apology and taking back what was written.
"From a public relations standpoint, that can be a very significant thing," Goldman said. "These lawsuits are about restoring your reputation, not about getting rich. When somebody says in a court of law, ‘We’re wrong, we’re sorry, the story was false,’ that’s huge."
But it’s not just celebrities who are flocking to the British courts. The U.K. has seen an influx of money from what some are calling "libel tourism" — the practice of those who come to the country’s courts specifically because of their more lenient libel laws.
Four years ago, author Rachel Ehrenfeld published a book called "Funding Evil: How Terrorism is Financed — and How to Stop It," which accused wealthy Saudi Arabian businessman Khalid bin Mahfouz of backing radical terrorist groups. As a result of the allegations, Bin Mahfouz sued Ehrenfeld for libel in a British court, despite the fact that Ehrenfeld’s book was not published or marketed in England.
Only 23 copies of "Funding Evil" were purchased in Britain via the internet — copies Ehrenfeld says were purchased by Bin Mahfouz’s lawyers. A chapter of her book was also posted on the ABC News website, which was viewable to British web surfers. Despite these facts, Ehrenfeld lost the case and was ordered to pay Bin Mahfouz’s legal fees, give a donation to his charity of choice, remove her book from circulation, publicly apologize and retract the statements.
As a result of issues raised by Ehrenfeld’s case, U.S. senators Arlen Specter, Joe Lieberman and Chuck Schumer have sponsored the Free Speech Protection Act of 2009, which would block the enforcement of some defamation judgments from English, Welsh, Irish and other foreign courts. The legislation would also allow U.S. citizens to bring a federal cause of action for damages against someone who has a foreign judgment if courts in the U.S. decide the judgment was not complicit with U.S. defamation laws.
Goldman said she worried that this one specific case, which involves a "serious issue and an evil person," may hurt the cases of people who are harmed in smaller ways.
"If somebody wrote in a chapter of a book that was sold in the U.K. and excerpted in a U.K. newspaper that accused me of theft and stealing a dog, I would be upset," Goldman said. "Kathleen Turner did that in her memoir about Nicolas Cage. On an individual level, it’s not trivial. A lot of these people have international reputations. If there’s no concern about having to face a judgment for a false story, it will be open season."
