England's Chilling Forecast: The Case For Granting Declaratory Relief To Prevent English Defamation Actions From Chilling American Speech

By Fordham Law Review | by Raymond W. Beauchamp
Monday, May 1st, 2006 @ 8:14PM

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Dr. Rachel Ehrenfeld is an expert on the financing of terrorism. In her book,Funding Evil, she reported allegations by her sources that the Saudi Arabian businessman Khalid Bin Mahfouz funds terrorism. Bin Mahfouz sued Dr. Ehrenfeld in England for libel even though Dr. Ehrenfeld wrote and published her book in the United States. Because twenty-three copies were purchased over the Internet in England and the first chapter of the book was available online, an English court allowed Bin Mahfouz to bring his suit there.

Bin Mahfouz’s behavior has been labeled “libel tourism”—choosing to sue in a forum with plaintiff-friendly libel laws. Dr. Ehrenfeld did not defend this suit because, as an independent writer, she lacked the resources to defend an overseas action. Furthermore, she felt English law did not offer her sufficient protection from Bin Mahfouz’s defamation action. The English judge found for the plaintiff in a default judgment and awarded damages of 60,000 pounds as well as an injunction. Had this case been brought in the United States, the First Amendment very likely would have protected Dr. Ehrenfeld. However, because Bin Mahfouz chose the forum, and because England does not honor the United States Constitution, she could not shield herself with the First Amendment.

In the face of international defamation litigation, American defendants may have a source of relief in American courts. The Declaratory Judgment Act provides a procedural mechanism for a potential defendant to institute proceedings in a federal district court. It is typically used when one party is under threat of liability, but the party alleging a cause of action has not yet filed suit. The Declaratory Judgment Act is not usually available to a defendant seeking a more advantageous set of laws—i.e., forum shopping. But what about in the context of libel tourism? The central question of this Note is whether, and when, it is appropriate to provide declaratory relief to American defendants such as Dr. Ehrenfeld from defamation actions brought overseas.

Part I of this Note provides an overview of defamation law in the United States as compared with England. In particular, Part I contrasts American reform to its defamation law with the comparative stagnancy of English defamation law. In addition, Part I provides an overview of how declaratory relief operates under the Declaratory Judgment Act. Part II presents arguments for and against courts considering declaratory relief from overseas defamation actions. This debate centers on the role of the First Amendment in determining whether to provide declaratory relief and how courts must modify their Declaratory Judgment Act analysis in light of the international scope of libel tourism cases. Part III argues that declaratory relief is appropriate under certain circumstances and provides a framework for use of the Declaratory Judgment Act in overseas defamation cases

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