The Russian State Duma voted 339-1 today to tighten media rules on slander and libel. (more…)
The retail giant is displaying a sudden enthusiasm for libel courts, writes Roby Alampay
In the space of five months, four libel suits have been filed by Tesco, one of the world’s biggest retailers, and its subsidiary in Thailand, Tesco Lotus.
The latest of those suits, filed this month in Britain, targets the Guardian for a story on Tesco’s tax filings. The three other defamation charges were all filed between November 2007 and March 2008 in Thailand by Tesco Lotus, Tesco’s subsidiary in that country, and summon to court a former legislator and current consumer advocate, as well as two columnists, who criticised the company’s expansion in the land. At least one of the columnists also raised questions about Tesco Lotus’s accounting and tax filing procedures.
Tesco Lotus’s impact on the Thai retail industry has been a topic of public discussion ever since the company’s entry into the Thai market in 1998.
That the company would now seek damages against advocates and media practitioners signals to some observers an attempt to now simply avoid that continuing debate.
The Thai Journalists Association this week called for an emergency meeting, recognizing the impact Tesco Lotus actions may have on press freedom and free expression in Thailand. The Southeast Asian Press Alliance, of which the TJA is a member, has called the defamation suits ‘pure acts of harassment against civil society and the press’, and warned that the ‘absurd’ damages sought could have a chilling effect on Thai journalists and advocates critical of Tesco.
Indeed, SEAPA notes that Tesco Lotus’ defamation suits test a new law in Thailand that seeks to empower publishing companies, but which may apparently also leave individual journalists feeling more vulnerable.
Thailand’s Press Registration Act of 2006, among other things, removes the requirement of a permit for setting up newspapers and also protects newspaper editors and publishers from automatically sharing in defamation suits brought against their writers. Under the 1941 law the Press Registration Act of 2006 replaces, the editor (and/or the publisher) and the author had to share the liability.
Now entities filing defamation charges have the option to sue just individual writers — which is exactly what Tesco Lotus has done, suing the two Thai columnists for $3.3m each, and the former legislator and current consumer activist for $33m. SEAPA is concerned that the strategy sends a chilling message as well as divisive attack on the media sector as a whole, resonating with individual journalists while sending the signal to their principals and companies not to get involved.
For more information, visit the SEAPA website at www.seapa.org
It was the most iconic image of the second intifada: the killing, on camera, of a Palestinian child caught up in the violence of September 2000. But a French libel case has raised questions about what happened that day in Gaza.
Natasha Lehrer reports
In a packed courtroom in Paris’s Palais de Justice last Wednesday, Charles Enderlin, veteran Jerusalem correspondent for the state-owned television channel France 2, presented 18 minutes of raw footage filmed at the Netzarim Junction in Gaza on 30 September 2000. The footage included 68 seconds of the final moments of Mohammed al Dura, the 12-year-old boy whose death in a barrage of Israeli gunfire was caught on film that day and broadcast around the world. The image became an iconic image of Israeli brutality and was the trigger for some of the worst violence ever seen in the Israeli-Palestinian conflict. These 68 seconds of footage form the pivotal evidence in the latest stage in a libel case brought by Enderlin and his employer against Philippe Karsenty, head of a small Internet current affairs watchdog called Media Ratings, who accuses Enderlin of having perpetrated a hoax and demands that he and Arlette Chabot, head of news at France 2, resign.
Karsenty bases his allegations on the work of a small, dedicated—some would say obsessive—group of Israeli, French and American bloggers and journalists who have been voicing serious doubts about the footage filmed that day by Talal Abu Rahma, a freelance Palestinian cameraman who has often worked for France 2. Enderlin himself was not in Gaza that day.
The principal objections to the footage focus on the fact that although Abu Rahma claimed under oath that the boy and his father were subjected to a 45-minute sustained attack from the Israeli position, there are only seven bullet holes in the wall. These bullet holes are perfectly round. According to ballistics experts, this is consistent with having been fired from straight ahead, whereas the Israeli position is to the extreme right of the father and son. Even if the Israelis had managed to hit them directly with bullets fired at an angle from a position over 100 metres away, the holes they would have made in the wall would have been noticeably distended.
The difficulty with unravelling this story is that it has, in the main, preoccupied people whose obsessions are at least in part political, leading to extravagant claims that serve only to undermine their arguments. Much of the evidence on both sides is little more than conjecture. But if one thing can be said about what was viewed in court last week, it is that it is impossible to verify the claim that al Dura was killed by an Israeli bullet from watching the footage alone. The only corroboration of the attack was made by the cameraman himself, whose sworn affidavit at the Palestinian Centre for Human Rights furnishes further essential details of what took place that day.
Enderlin and Abu Rahma have always claimed that what was broadcast on the evening of 30 September 2000 was significantly shorter than what was filmed earlier in the day. In his sworn affidavit, Abu Rahma said that he filmed 27 minutes of footage that day. He told Esther Schapira, the German filmmaker who made the 2002 documentary Three Bullets and a Dead Child: Who Shot Muhammad al Dura, that he filmed six consecutive minutes of the attack. In an interview in the French magazine Telerama in October 2000 Enderlin explained his decision not to include the footage of the actual death throes—“agonies”—of the child because they were so unbearable.
Why then, when the court ordered France 2 to release the raw footage to be shown in court (on a DVD made in the presence of a bailiff in the offices of France 2 from the original tape) did we see footage that was only 18 minutes long? Why, in the course of that 18 minutes did we see only 68 seconds of non-consecutive footage rather than six consecutive minutes of Jamal and Mohammed al Dura? Where are the death throes that Enderlin described so eloquently? In fact, there is nothing in the tape that definitively shows that the child is dead. The first 17 minutes of the video are taken up with scenes of young Palestinian children and youths apparently staging riots, playing at being shot, getting up again and smoking cigarettes nonchalantly. For 16 minutes (Enderlin told the courtroom) only rubber bullets were fired; the real bullets that are fired in the 16th minute were, according to Enderlin’s commentary in court, from the Palestinian position. At no point in the footage do we see gunfire coming from the Israeli position.
Enderlin’s commentary in court contradicted earlier claims he has made about the raw footage. Last Tuesday, he told the BBC that “nothing is staged. Footage of the same events filmed by other news organisations confirms this”. In court he explained why there is in fact no other footage of Mohammed’s death: “All the other cameramen ran away in fear”. In a galvanising moment in court, Guillaume Weill-Raynal, a lawyer (though not working on the case) and friend of Enderlin, gestured to the judge to pause the playing of the footage to show how Mohammed’s foot in one of the penultimate frames is positioned in such a way that shows that he must be dead. Experts, explained Weill-Raynal, have verified that it is impossible for a living person to lie with his foot in such a position; the child is clearly dead at that point in the footage. The judge gestured for the showing of the footage to continue. Within a couple of frames everyone in the courtroom saw the “dead” child raise his arm and leg to peer out in the direction of the gunfire. The irony of his resurrection at that point was lost on nobody.
Does it matter if the child did or did not die that day from an Israeli bullet? For Enderlin, in the end, it clearly doesn’t; in a January 2005 article in the Figaro written by two veteran French journalists who expressed severe reservations about the veracity of the footage, Enderlin responded that “the image corresponded to the reality of the situation, not only in Gaza but also in the West Bank”. In other words, its symbolic importance is much more important than its factual truth. This is undeniably true, given the uses to which the image of al Dura has been put over the last seven years. With his death Mohammed became “the first child martyr of the Intifada”. He was eulogised by the Palestinian poet Mahmoud Darwish. All over the Arab world streets were renamed in Mohammed’s honour and stamps with his picture were issued. Appalling acts of violence were perpetrated in his name. Less than a fortnight after his murder two Israeli soldiers were lynched in Ramallah. Osama bin Laden name-checked the child after 9/11. His picture can be seen in the videotape of Daniel Pearl’s beheading. Both in the west and in the Arab world there are many who even go so far as to claim that Mohammed’s death changed the course of 21st century history.
Given the significance of the footage it is striking that the case hasn’t exactly galvanised the French media. Though it has been reported in the American and Israeli press, and last week appeared on the websites of both the BBC and al Jazeera, the French media have all but ignored it, with the exception of the 2005 article in the Figaro, a brief mention on France 24’s website and some coverage in the Jewish press. Enderlin’s close relationship to former President Chirac was underlined when during the first round of the libel case last year—which he won—the journalist’s lawyer produced a letter from the then president attesting to Enderlin’s integrity. It is perhaps no coincidence that it is only now with Sarkozy in power that the appeal court finally ordered France 2 to release the footage for it to be shown in open court.
It is undoubtedly true that l’affaire Enderlin raises uncomfortable questions regarding the independence of the French media from its government. Questions must inevitably be asked about the ethical standards, transparency and self-regulation of France 2 in particular and the French media in general, which has shown next to no interest in an affair that not only exposes a rotten core at the heart of the country’s public information network but is a salutary reminder that we ignore the importance of maintaining the highest level of journalistic integrity at our peril. Lives depend on it.
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.’