Libel tourism has been catapulted into the headlines of what is left of the US print media, after aviation writer Joe Sharkey was served a writ in his New Jersey home for defamatory statements he says he didn’t make in Brazil after surviving a mid-air collision in 2006 between an airliner and the corporate jet in which he was a passenger.
All 154 people on the GOL Airlines jet died. The seven occupants of the damaged Brazilian-made biz jet (which was being delivered to its new owners in the US) were unharmed after it made an emergency landing at an airstrip in the Amazon jungle.
Sharkey is, among other things, accused of insulting the dignity or honour of Brazil in his reporting of the collision. A Brazilian crash inquiry has largely blamed the US pilots of the small jet, who are now being tried in absentia on criminal charges, and a US inquiry has largely found fault with Brazil’s air-traffic controllers, who through negligence allowed both jets to fly at the same altitude in opposite directions.
The Sharkey case has added to pressure on Capitol Hill for the passing of the Free Speech Protection Act of 2009, which is currently on the agenda of the Senate Judiciary Committee.
The Bill provides protections for Americans sued for libel in foreign countries whose laws are inconsistent with the freedom of speech granted by the US Constitution. In addition to journalists, corporate travellers, university researchers, analysts and organisations that issue travel warnings, including corporate travel departments, are argued to be at risk.
The situation reflects the pressure Australia’s Foreign Affairs Department comes under from issuing travel warnings about Indonesia, Fiji, and no doubt as the 2016 Olympic Games approach, the reputedly dangerous and crime-ridden streets of Rio de Janeiro.
Sharkey was served with a complaint seeking $US279,850 ($A320,348) in damages. In its summary of the case, the Business Travel Coalition in the US says:
The plaintiff in the lawsuit is identified as Brazilian Rosane Gutjhar, who asserts, in a novel claim, that Sharkey offended her country’s dignity in his writings and interviews. Although Gutjhar’s husband died in the crash, Sharkey did not know her, or mention her name at any time. In other words, the plaintiff doesn’t have to claim she was personally libelled, only that her country was insulted. The suit is based on a Brazilian law that any citizen can claim damages for any alleged insult to the dignity or honor of Brazil in any case involving a crime — for which the pilots, Joseph Lepore and Jan Paladino remain on criminal trial in Brazil, in absentia.
The Free Speech Protection Bill was introduced in February as a consequence of a case brought against US terrorism expert Dr Rachel Ehrenfeld in a UK court by a Saudi tycoon, who claimed he was libelled in her 2003 book Funding Evil.
The Saudi plaintiff won $US250,000 in damages, enforceable in the UK, where she would be subject to arrest on arrival and where sales of her book are prohibited by court order.
The Business Travel Coalition says:
The Ehrenfeld suit has been just the most prominent of cases known under the general rubric “libel tourism” in which foreign nationals, claiming to be offended by something written in the US. by journalists, researchers or scientists, travel to pliant courts in third countries and obtain libel judgments against American defendants, even though the allegedly offensive speech would be fully protected under the Constitution.
The Bill has clear potential to inflame Brazil/US relations, and illustrates the risks Australian journalists may encounter in writing about the modern-day barbarity of genocidal attacks on Amazonian Indians, and death squads hunting down and murdering feral children and other alleged petty criminals in the slums of its major cities.
In short, modern-day Brazil has much ugliness to hide in its contemporary history.
What happens in the Sharkey case has the potential to exclude him and other reporters from Brazil, and given the UK precedent, seek to intimidate even Australian publications that circulate online and in print in Britain and parts of Europe.