Ehrenfeld: International Libel Law Battle 'Is About Freedom Of Speech'

By Media Lawyer | by Mike Dodd
Thursday, June 16th, 2005 @ 9:53PM

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The legal battle between an American academic and billionaire Saudi Arabian businessman Sheikh Khalid Bin Mafhouz will decide whether writers in the United States will have the freedom to investigate and write about terrorism and its financing, or whether the search for truth will be compromised, according to papers filed with the US District Court in southern New York.

The claim is made in a Memorandum of Law filed by lawyers acting for Dr. Rachel Ehrenfeld.

The document was filed on June 10 in response to a motion from Sheikh Mahfouz for the dismissal of Dr. Ehrenfeld’s application to the court for a declaratory judgment that a summary judgment he obtained in the High Court in London was unenforceable in the United States, and that what she had written was not libellous under US law.

Sheikh Mahfouz and his sons had sued Dr. Ehrenfeld over allegations in her latest book linking them and the Muwafaq Foundation they founded to Osama Bin Laden’s Al Qaida organisation.

Dr. Ehrenfeld, who lives and works in New York, and is director of the American Centre for Democracy, refused to respond to the litigation.

Mr. Justice Eady gave Sheikh Mahfouz and his sons summary judgment, awarding them £10,00 each in damages, ordering Dr. Ehrenfeld to make an interim costs payment of £30,000, issuing a declaration of falsity about statements in her book, and ordering her and her publisher to agree with the claimants on a suitable apology, which they should then publish.

Solicitor Laurence Harris, of Kendall Freeman, which represented the Sheikh and his sons, said the case was brought in London because the family had homes and business interests in Britain.

It was based on the fact that some 23 copies of the book were sold in Britain, having been bought via the Internet – the work was never published in the UK – and on the appearance of the first chapter on the Internet, where it was thought that it could have been accessed by some 200,000 people from the UK.

In the motion to dismiss Dr. Ehrenfeld’s application, Sheikh Mahfouz’s lawyers are understood to have argued that that there was no real controversy, as there was no litigation in the US, and that the court had no personal jurisdiction because the Sheikh had no home or interests in New York.

Dr. Ehrenfeld’s lawyers say in the memorandum filed with the US District Court: “At stake on this motion (to dismiss her application) is whether American journalists, investigative reporters, and independent authors will have the freedom to write and publish – and whether the American public will have the freedom to read and learn – the facts about the funding of international terrorism.” “It is that simple, that stark, and that important.” “If this action is dismissed, writers will be afraid to do their jobs properly and aggressively, and the search for the truth behind issues of the highest and most urgent public interest will be compromised.”

“If, on the other hand, this action is allowed to go forward, public interest, the First Amendment and national security will all be enhanced. Brave and tenacious writers will be able to ferret out and publish the facts without fear of expensive lawsuits and huge judgments in foreign countries whose defamation laws and commitment to freedom of expression and public discourse are ‘repugnant’ and antithetical and ‘contrary’ to our fundamental public policy.”

The memorandum argues that the motion to dismiss should be denied because there is a controversy between the parties, on the basis that Sheikh Mahfouz had obtained a judgment in London and could attempt to enforce it through the US courts, and because there was personal jurisdiction as the Sheikh had “many intentional contacts with New York”.

Sheikh Mahfouz is a “libel tourist”, the document claims, adding that his choice was to sue Dr. Ehrenfeld in England because “he wanted to obtain an easy judgment against her there that he could then use to try to stop her research and publication, and the research and publication of others, in the United States”.

It also says his activities have created a “profound and pernicious chilling effect” on freedom of expression for Dr. Ehrenfeld and for others. It rejects the Sheikh’s argument that the case of Dow Jones and Company Ltd v Harrods Ltd and Mohammed Al Fayed (237 F. Supp.2d 394 (SDNY 2002)) shows that Dr. Ehrenfeld’s application should be dismissed. That case concerned litigation which, at that time, had yet to take place in London over a piece which appeared on the Wall Street journal website about an April Fool spoof published on the Harrods website.

The Second Circuit Court of Appeals affirmed the decision of a lower court to refuse to give a declaratory judgment that the material published by the US firm was not libellous as a matter of law, on the grounds that the action was non-justiciable because it was not ripe for adjudication, and that there was no “actual controversy” as required by the Declaratory Judgment Act. But the memorandum points out that there are differences between the Dow Jones case and that of Dr. Ehrenfeld – first, she has already been sued in London, and second the High Court had issued a summary judgment ordering her, among other things, to pay £60,000 in damages and interim costs.

It adds that the US District Court should “give no weight” to Sheikh Mahfouz’s assertions that Dr. Ehrenfeld has no reason to believe he will try to enforce his judgment in the US, adding: “Nothing prevents him from changing his mind.”

SECOND STORY: US PUBLISHERS `NEED PROTECTION FROM FOREIGN LIBEL LAWS’ DEFAMATION

Ehrenfeld Amici Brief

Publishers in the United States are increasingly being subjected to the jurisdiction of foreign courts which do not apply the principles enshrined in the US Constitution, according to a friend of the court brief filed in the battle between an expert on terrorism and a billionaire Saudi Arabian businessman.

The brief was filed on June 10 in support of Dr. Rachel Ehrenfeld, director of the New York-based American Centre for Democracy, who is involved in a battle in the US District Court for the Southern District of New York with Sheikh Khalid bin Mahfouz.

Sheikh Mahfouz recently sued Dr. Ehrenfeld in London over her book, entitled Funding Evil: How Terrorism is Financed, and How To Stop It, which was published in Chicago.

It was never published in the UK, but 20-plus copies were sold via the Internet, and some 200,000 people in Britain may have accessed the first chapter of the work, which appeared on the world-wide web.

Dr. Ehrenfeld refused to acknowledge the jurisdiction of the English courts. Mr. Justice Eady, in the High Court in London, issued a summary judgment, awarding £10,000 damages each to Sheikh Mahfouz and his two sons, ordering Dr. Ehrenfeld to pay £30,000 in interim costs, and to publish an apology, and making a declaration that some of the statements in her book were false.

Dr. Ehrenfeld responded by applying to the US District Court for a declaration that the judgment was unenforceable in the US, and that what she had published was not libellous under US law – which led lawyers for Sheikh Mahfouz to apply to have the action struck out on the grounds that there was no cause of action as he had not tried to enforce the judgment, and that the court had no jurisdiction in the matter.

The friend of the court brief was filed in support of a motion to dismiss Sheikh Mahfouz’s motion by a group of media and Internet publishers and interests.

The group comprises online shopping firm Amazon.com, the American Society of Newspaper Editors, human rights group Article 19, the Association of Alternative Newsweeklies, the Association of American Publishers, the Authors Guilt, digital rights group the Electronic Frontier Foundation, the European Publishers ‘Council, the Australian newspaper group John Fairfax Holdings, the Newspaper Association of America, the Online News Association, NYP Holdings, publisher of the New York Post, the Radio-Television Directors’ Association, the Reporters Committee for Freedom of the Press, Times Newspaper Ltd, publisher of The Times and The Sunday Times, and the World Press Freedom Committee.

The brief says Sheikh Mahfouz’s tactic in suing in England rather than in the United States has created a chilling effect which is not limited to Dr. Ehrenfeld.

It goes on: “Increasingly, publishers are being subjected to the jurisdiction of foreign courts, which apply laws that could not be applied against them in the countries where they publish, at the behest of libel tourists such as Mr. Bin Mahfouz.

“This Court has an essential role in defending the application of the US Constitution to works published in the United States. “Litigation against US publications and authors in foreign countries constitutes a clear threat to the ability of the US press to vigorously investigate and publish news and information about the most crucial issues before the US public – including, as in this very case, the funding and sources of terrorism.

“The English judgment provides compelling evidence of the ease of punishing US authors by using the courts of another country to avoid the protections of the First Amendment.

“This Court should provide an essential counterweight for US authors and publishers, who increasingly are under attack by litigants in the United Kingdom and elsewhere, by declaring that the judgment is unenforceable in the United States.” Such a declaration, it says, would “reinvigorate the application of the Constitution to works published in the US” even when those works were attacked in countries where the principles of the Constitution were not applied.

It goes on: “Internet publication and distribution of newspapers, books and other media has led to litigation in which the courts of Australia, Canada, England, France, Germany, Italy and Zimbabwe have ignored the laws under which publications have been produced and applied local laws to determine the liability of publishers. “If publishers may be sued in any country in which a handful of citizens have accessed or purchased their works over the Internet, the media will lose any ability to predict the law that will apply to their publications.

“This trend, if unrestrained, will lead to publishers limiting their exercise of speech that would be protected in their home country out of legitimate concern that a more restrictive legal system will define their liabilities after publication.

“The principle that such judgments would be unenforceable under the laws of the country in which the work was published would protect free expression and enable publishers, whether in the US, Europe or Australia, to retain the full benefit of their countries’ laws in an Internet-enabled publication marketplace.

“It is well-settled US law that a defamation judgment obtained under English legal standards is unenforceable in the United States.

“This principle should be effectuated by this Court without forcing Dr. Ehrenfeld to await the execution of an English default judgment that may never occur.”

Dr. Ehrendfeld’s application for the declaratory judgment is, it says, the only means by which she can obtain relief from the impact of the High Court’s decision.

The brief says that “the vital public concern in favour of free speech militates against recognition of the English judgment” and in favour of granting relief, and adds: “It is the very existence of the overseas default judgment – through which a Saudi resident has sought to use the English court system to silence an American author in her home country in violation of her constitutional rights – that implicates complex issues of national policy, constitutional law and international affairs.

“By clarifying Dr. Ehrenfeld’s legal rights under American law as applied domestically, a declaratory judgment would serve to resolve, rather than create, these issues.”

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Categories: Free Speech & Libel Tourism