Once again, UK libel is stifling free expression by Padraig Reidy
Sheikh Khalid bin Mahfouz has made an academic publisher withdraw a controversial book. But it is the UK libel system that allows the rich and powerful to stifle investigation, writes Padraig Reidy
Sheikh Khalid bin Mahfouz, a Saudi-born Irish passport holder, and one of the richest men in the world, is no stranger to the UK libel courts.
Since 2002, banker bin Mahfouz has used his considerable financial clout to garner apologies and damages through the courts from a variety of organisations, from tiny leftist political publisher Pluto to the Mail on Sunday, one of the UK's biggest newspapers.
Recently, bin Mahfouz's attention has been turned to respected academic publisher Cambridge University Press.
Bin Mahfouz's wrath was provoked by the CUP book Alms for Jihad by Robert O Collins and J Millard Burr, a wide-ranging study of the use of Islamic charities in siphoning funding to al-Qaeda.
Bin Mahfouz alleged that the book linked him, financially and through family, to Osama bin Laden, a claim which he has previously forced others to retract in the UK courts.
However, the authors firmly deny bin Mahfouz's specific claims. In a comprehensive response to the sheikh, Collins and Burr insist that they never once in the book name bin Mahfouz personally as a funder of bin Laden, or repeat the false claim that a sister of bin Mahfouz is married to bin Laden. There were nine other specific claims, all of which Collins and Burr addressed in a lengthy letter put together, they say, at the request of CUP.
This detailed defence was not enough to convince CUP (indeed, bin Mahfouz's law firm Kendall Freeman told Index: 'We were never presented with any defence prepared by the authors of Alms for Jihad'). On July 30, CUP issued an outright apology, displaying a sadly understandable lack of commitment to its authors, in the face of bin Mahfouz's personal wealth (estimated at $3.2bn) and his enthusiasm for litigation.
CUP declared that it would pulp all unsold copies of the book, and requested that library copies be returned, to meet the same fate. They also agreed to donate a sum (variously described as 'small' and 'significant') to Mahfouz's elected charity, Unicef.
In the apology Kevin Taylor, CUP's intellectual property director, went as far as to describe the claims made in the book as 'entirely and manifestly false'. One can only wonder how Cambridge, which in the same apology describes itself as a 'responsible publisher' would allow a book based on manifest falsehood get right through the editing process and on to bookshelves. The authors themselves refused to take part in the apology.
Robert O Collins told Index: 'Our defense was simply a facade on the part of CUP who had decided they could not possibly win under British libel law and sought to settle as quickly as possible at any cost and get on with the business of publishing books. Which they did. We of course refused to be a party to their settlement. CUP lawyers had spent a month in March 2005 vetting our book.'
It would most likely have been impossible for them to win the case, such is the nature of UK libel law, which would have obliged them to counter every single one of bin Mahfouz's claims about the book, unlike US law, where it would have been up to bin Mahfouz to counter the book's claims.
This is the third book-pulping Mahfouz can take credit for – having previously seen off Profile Books' Unknown Soldiers and Pluto's Reaping the Whirlwind.
Media lawyer Mark Stephens, of Finers Stephens Innocent, believes that personal wealth can give plaintiffs a huge advantage in the UK courts: 'The courts are predicated on the basis that each party has the wherewithal to bring to the court all the relevant evidence, and be represented by lawyers of equal ability. Vindication through contested trial is, in my view, a value that underpins the British libel system.'
He went on to say that as nobody has parity of arms with bin Mahfouz, 'the allegations about him have never been contested in trial. There have always been settlements or default judgements.'
Laurence Harris of Kendall Freeman says that bin Mahfouz resorts to the UK courts because 'he and his family travel to the UK, have friends here, own properties and do business here and consequently have significant reputations in the UK. Our client and his family adopted a policy of seeking to protect their reputations in the UK in 2002 when a major UK newspaper made similar defamatory allegations and our client brought proceedings, which were initially defended by the newspaper but ultimately settled by an apology and payment of damages. Since then, our client and his family have continued consistently to protect their reputations in the UK in respect of publications which appear in the UK and which make such allegations.'
Such is the fear of bin Mahfouz that even US-based Amazon is not selling Alms for Jihad, instead, somewhat disingenuously, offering a 557-word review for the knock-down price of $9.95. Unsuspecting punters, ordering what they thought was the book itself, were understandably upset to receive a small Word file. As one pointed out, not unreasonably: 'I haven't even read the d--- review they gave me - I've already read reviews of the book, which is why I wanted to buy it in the first place!'
Meanwhile, copies of the actual book are said to be changing hands for upwards of $500.
While he has so far been successful in the UK courts, bin Mahfouz may not find things so easy in the United States, where the First Amendment provides more protection for books such as Alms for Jihad. The American Library Association had already refused to comply with CUP's request to return copies for pulping. The ALA's Office for Intellectual Freedom told members: 'Libraries are considered to hold title to the individual copy or copies. Given the intense interest in the book, and the desire of readers to learn about the controversy firsthand, we recommend that US libraries keep the book available for their users.'
This may only be the beginning of bin Mahfouz's American problems: Dr Rachel Ehrenfeld, author of Funding Evil: How Terrorism is financed, was sued by bin Mahfouz in the UK in 2004. She chose not to contest the case, refusing to acknowledge the court's jurisdiction over a book which was being published in the US (only 23 copies ever made it to the UK). Consequently, the London court issued the first ever declaration of falsehood in a case that had not been contested by a judge and jury. Judge Eady ruled that Ehrenfeld should apologise to bin Mahfouz, pay damages and costs of $225,000, and destroy the book. Instead, Ehrenfeld is planning to contest the case in a US court, on the basis that the 'English default judgement is unenforceable in the United States and repugnant to the First Amendment.'
The New York Second Court of Appeals seems to think Ehrenfeld could have a point, and in June ruled that the case should be heard, possibly as early as autumn of this year.
Laurence Harris says that bin Mahfouz will argue the appeal through his US attorneys.
But Robert O Collins points out: 'Just as CUP did not have a snowball's chance in hell of winning a long and costly suit in the English courts, it is doubtful that the good sheikh will come after us or Dr Ehrenfeld in the US courts where we are protected by the First Amendment, historical precedent [and] the recent unanimous decision of the 2nd NY Court of appeals.'
Meanwhile, answering critics on the Bookseller's website, Kevin Taylor hinted at his company's own difficulties with UK law, pointing out that 'Cambridge University Press is not in business to do ideological battle but to act responsibly as a publisher of scholarly material. It would not be a responsible use of our resources, nor in the interests of any of our scholarly authors, to attempt to defend a legal action [in this case] ... we are a global publisher with a duty to observe the laws of many different countries.'
Published in Index for Free Expression