By Ron Chepesiuk Posted Jul 1 2004
Craig Unger and Gerald Posner have a lot in common. They are both respected investigative journalists who have published best-selling books in the United States about the Saudi connection to the War on Terrorism and to U.S. foreign policy. Both books (Posner's While America Slept; the Failure to Prevent 9/11 and Unger's House of Bush, House of Saud: The Secret Relationship between the World's Two Most Powerful Families) were published by Random House.
But there is one thing Unger and Posner no doubt wish they did not have in common. Given their books' controversial contents, Random House's lawyers reviewed them carefully to ensure they did not contain anything libelous. Yet, despite the thorough “vetting” procedure, the publisher has now decided not to publish the two books in England.
In England, it is much easier for a disgruntled subject to pursue a libel action and disrupt publication of even a nonlibelous book than it is in the United States. That's why Random House took the action it did even though the lawyers found the books defensible against libel actions.
The United States has the world's best libel laws, but people with deep pockets can sue journalists in many other countries such as Britain and Australia, Unger said. “They don't have to win, just tie you up in court forever.”
Posner agreed with Unger's assessment and added, “In cases of real bad journalism, people should be able to sue here (the United States ), England or anywhere, for that matter. I want to see the bad journalists out of business, but I'm a journalist who did his homework and got it right. My publisher's lawyers meticulously checked my book for accuracy.”
The “people with deep pockets” who stopped Unger's and Posner's bestsellers in their tracks are rich and powerful members of the Saudi royal family. Unger's book investigates the intriguing relationship between the Saudi royal family and the extended political family of George W. Bush and the relationship's impact on the growth of terrorism and the events of 9/11. Posner's book revealed that Abu Zubayah, a key Al-Qaeda operative captured last year in Pakistan, had confessed that important members of the Saudi establishment knew beforehand about the 9/11 attack but failed to alert the United States.
This author contacted the Random House legal department to find out why the two books aren't being published in England. “We don't want to comment on that at this time,” was the response of Laura Goldin, a Random House spokesperson from the legal department.
One can understand why Saudi royal family members want to keep such information out of print, but why not first try to prevent the books from being published in the United States , which has a far larger reading public than England and where the damage to one's reputation can be greater?
“Libels laws differ from country to country, but it's fair to say that the U.S. has perhaps the greatest protection of writers and publishers through the First Amendment and other doctrines,” explained Lawrence Savell, an attorney with the New York City-based law firm of Chadborne & Parke.
“The burden of proof is on the claimant, not the writer or publisher, to prove that their reputation has been damaged.” Savell, who specializes in media law, represents several U.S. media companies.
Burden of proof
In England , on the other hand, the burden of proof lies with the publisher and the writer, and that makes them attractive targets for libel claims. Writing in England 's Guardian newspaper, journalist Martin Soames explained what could happen: “Once the claimant has shown the English courts that he or she has been identified and that the defamatory allegation has been published here, the burden of proof is on the defendant. In other words, the allegation is presumed to be untrue. It is then up to the publisher to prove the contrary.
The attractiveness of England as a jurisdiction in which to pursue legal claims has given rise to a practice known as “libel tourism” or “forum shopping.” Individuals with fat bank accounts, not only from Saudi Arabia but also the United States , Russia , England and Australia , are taking advantage of the laws in claimant-friendly countries to sue for damages.
And it's not only book publishers and their authors who end up in court or are intimidated into practicing what can be only be described as self-censorship. In March 2002, Richard Pearle resigned as head of the Defense Policy Board, an influential organization of ex-government officials who serve as consultants to the Pentagon. Investigative journalist Seymour Hersh had written a piece in The New Yorker magazine that raised questions about Pearle's dealings with two Saudi businessmen and suggested that he might have tried to benefit from a war with Iraq . Hersh's article led to a series of critical reports about Pearle, which prompted his resignation.
Pearle likened Hersh to a terrorist and announced his plans to sue in England where The New Yorker is sold, but did not follow through. Hersh was already familiar with the British legal system. Earlier, media mogul Robert Maxwell had sued Hersh in English court, but the investigative journalist countersued and won. Maxwell and his company had to pay six-figure damages.
Earlier this year, the British newspaper The Mail on Sunday planned to publish an excerpt from Posner's While America Slept. “I thought at the worst I would have to do a few rewrites, but at the last moment, the Mail's lawyers intervened and killed our deal,” Posner revealed. “I know that Prince Turki (the Saudi Ambassador to the United Kingdom ) had contacted The Mail on Sunday. Then the next thing I knew, the excerpt wasn't going to run. The newspaper paid me in full, but an author wants to see his work published.”
Stephan Bevan, an editor of The Mail on Sunday, has not replied to e-mails asking why the newspaper killed Posner's excerpt.
The problem for U.S.-based authors and publishers is that libel tourism can pay off big-time in court. Russian business tycoon Boris Berezovsky, for instance, sued the New York City-based Forbes Magazine in English court and won. Last January, The Wall Street Journal lost in court to Saudi businessman Mohammed Jameel over the newspaper's claims that antiterrorist officials had monitored his bank accounts.
Noted filmmaker Roman Polanski wants to sue publisher Condé Nast for libel in England for allegedly defaming his character, but he doesn't want to set foot in the country for fear he can be arrested and extradited to the United States where he is a fugitive. The court is now deciding whether it will allow Polanski to give video evidence.
Saudi businessman Sheikh Khalid bin Mahfouz, one of the world's richest people and a principal in Unger's House of Bush, House of Saud, won substantial damages from Pluto Press and author Michael Griffin. The author alleged in his book Reaping the Whirlwind that bin Mahfouz, former chairman of Saudi Arabia's the National Commercial Bank, financed the activities of Osama bin Laden and the Al-Qaeda network. The United Kingdom High Court ruled that the assertions were unfounded and ordered the defendants to apologize and pay “substantial” damages.
Bottom-line business decision
It is easy to criticize a publisher like Random House for its timidity, Posner said, but he understands its move is nothing personal. “It's purely a bottom-line business decision,” the author explained. “If Random House spends $500,000 or $600,000 in British Court defending my book, it will certainly get a nice pat on the back. But that's additional money the publisher has to spend for the right to buy and publish the book. Unless the book does extremely well, the publishers can possibly be out hundreds of thousands of dollars defending the rights of an author in court.”
Interestingly, at one time, Random House was not afraid to take on the rich and powerful in British court. Steve Weinberg, a freelance journalist based in Columbia, Mo., and a former director of the Investigative Reporters and Editors organization, signed a contract with publisher Little and Brown to write an investigative biography of American businessman Armand Hammer. “Right away I let Hammer know that I was writing the book, and right away he let me know that he would try stop it from coming out,” Weinberg recalls.
Four years later the book appeared, and Weinberg signed a separate contract with Random House UK to have the biography published in England . Hammer filed a lawsuit, and Weinberg spent much of the next two years in litigation. “I had a really good libel insurance policy, which I negotiated as part of the book contract,” Weinberg recalls. “I also got a lot of support from my publisher, but most publishers that were brave back then aren't so brave today.”
Libel insurance for a freelance journalist is hard to get today, says Weinberg, and Posner agrees. As a member of the National Writers Union, Posner had group libel insurance for a few years but it's no longer available for purchase. “If one of the hundred of us who were covered was found responsible for libel, and the damages were large, the rest of us would not have been covered,” he reveals. “But it was better than nothing, and that is what I have now – nothing.”
So will libel tourism put a permanent damper on the willingness of U.S publishers to publish hard-hitting investigative books in England and other countries where the law favors claimants? Savell believes the legal pendulum may be swinging against libel tourism.
“To my understanding, it is not that the laws of libel plaintiff-friendly jurisdictions are changing as much as it is that courts in such jurisdictions,” he explained. “Mindful of the forum—shopping phenomenon, and understandably desirous of not inundating their dockets unnecessarily, these courts are appropriately being selective in cases they allow to be brought before them.”