Case of the Day: the Akhbar Beirut Case

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The case of the day is the Akhbar Beirut case (S.T.L. 2016). The case, for contempt, was brought against a Lebanese newspaper company and its editor-in-chief, Ibrahim Al Amin, for contempt of the Special Tribunal for Lebanon, an international tribunal established by the Security Council to hear cases brought against people accused in the February 2005 attack in which former prime minister Rafik Hariri and others were killed.

The charge was that the newspaper and the editor published the names, particulars, and expected testimony of several confidential witnesses. This, the prosecutor alleged, was contemptuous because it undermined public confidence in the Tribunal’s power to protect the identities of its confidential witnesses.

At Opinio Juris, Ekaterina Kopylova has a post commenting on the importance of the decision on the question of corporate liability for contempt before an international tribunal. I am interested in the freedom of expression issues the case presents. These did not go unnoticed by the judge, of course, but his fundamental conclusion, in the judgment finding the journalists guilty of contempt, was that the right of free expression had to be balanced against other interests, and that here the other interests outweighed the freedom of the press.

What’s curious to me is the lack of real interest in the source of the leak. If anyone has exhibited contempt of the tribunal, it’s the person who leaked the confidential information to the press. Apparently the prosecutor looked into the leak and determined that it was unlikely that someone within the tribunal itself was the source of the leak. Really? To leave things at that shows a startling lack of curiosity and creates the impression, fair or unfair, that the tribunal was interested in protecting itself and decided to punish the messenger, as it were. I could be wrong, but as far as I can tell from the docket, the report in which the prosecutor explained his conclusions was confidential and ex parte, so it’s difficult to judge the merits of his conclusion. All this seems at least damaging to the public perception of the tribunal as the publication of leaked information. This is particularly so because while there is a suggestion that the journalists didn’t do a great job (they didn’t verify the information they published, for example), there doesn’t seem to be a claim that anything they published was untrue. And there can’t be any question about the newsworthiness of the information published.

Obviously the First Amendment doesn’t apply here, and US attitudes toward freedom of the press are not always the attitudes of the rest of the world. But I think that just on general principles, this decision lays the blame on the wrong party and underestimates the public value of timely reporting on significant court cases. There was no risk of undue influence on the finder of fact here, as there was no jury. There was a risk that future witnesses might be less likely to cooperate with the tribunal out of fear that their identities would be disclosed, but it’s the tribunal that’s responsible for making sure that it is safeguarding its confidential information, not the newspaper.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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