‘Libel Tourism’ Bill Protecting Authors Passed By Legislators

By NEW YORK LAW JOURNAL | by Joel Stashenko
Thursday, April 3rd, 2008 @ 5:46AM

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ALBANY – State legislators voted unanimously this week for legislation that would protect authors and publishers in New York from libel judgments won by plaintiffs in foreign countries with standards that are less stringent than in the United States. In approving A9_652/S6687 (_Se_e Bill Summary and Memo),_ the Senate and Assembly reacted to a Court of Appeals ruling that declined to change the state’s long-arm statute for cases of so-called “libel tourism,” which critics say is the use of outstanding foreign libel judgments to discourage New York-based authors from writing controversial works and publishers from printing them.

In Ehrenfeld v. Mahfouz, _//9/ NY3d 501 (2007), Judge Carmen Beauchamp Ciparick wrote of the growing concern that foreign libel judgments are being used to “chill free speech” in the United States. But she said that a call for extending the reach of the long-arm statute “must be directed to the Legislature,” not the courts (NY_LJ, Dec. 21, 2007). Assemblyman Rory I. Lancman, D-Queens, said the bill he and Senator Dean G. Skelos, R-Rockville Centre, are sponsoring does what the Court of Appeals refused to do judicially. Both the Senate and Assembly approved the bill Monday. The measure would allow defendants to seek to have foreign libel judgments declared unenforceable in New York courts if judges find the countries where those judgments were won have weaker libel laws than in the United States. Mr. Lancman said he knows of no other country with stronger libel laws for defendants than the United States, effectively making all foreign libel judgments void in New York. “To my knowledge, the free-speech protections that are afforded American citizens are unique in the world,” Mr. Lancman said in an interview. “The world may be flat, but I don’t think we should bend or accommodate on that core value one iota.”

The bill also gives New York courts personal jurisdiction over plaintiffs in foreign defamation proceedings in which New York residents or people amenable to jurisdiction here are defendants. Mr. Lancman said the plaintiff in last year’s Court of Appeals’ case would be free to avail herself of the legislation if it is signed into law by Governor David A. Paterson. New York author Rachel Ehrenfeld faces a defamation judgment and a damage award of $225,000 against her that was won in a British court by Saudi businessman Khalid Bin Mahfouz. In Ms. Ehrenfeld’s book, “Funding Evil – How Terrorism is Financed and How to Stop It,” she identified Mr. Bin Mahfouz as a financier of Al Qaeda leading up to the Sept. 11, 2001, terrorist attacks.

Mr. Bin Mahfouz has denied bankrolling terrorism. Mr. Bin Mahfouz has not sought to enforce the judgment against Ms. Ehrenfeld. Her attempt in federal court to have the judgment ruled unenforceable wa_s rejected last month b_y the U.S. Court of Appeals for the Second Circuit. The federal panel based its ruling on the answer to a _certified question a_bout the reach of New York’s long-arm statute that the state Court of Appeals provided in Judge Ciparick’s unanimous ruling in December. Mr. Lancman said the measure was amended in one significant way from earlier versions to allow non-New York residents to avail themselves of New York courts to seek a declaratory judgment on a foreign libel judgment. Earlier versions had required that defendants live in New York or have substantial financial ties to the state to have standing (NY_LJ, Feb. 28). “It is no longer limited to just New York residents,” Mr. Lancman said. “That would solve any privileges’ and immunities’ clause objections to the bill.”

Despite amendments, the chief administrative judge’s Advisory Committee on Civil Practice remains opposed to the bill, two members of the group said yesterday. In March, the committee voted 20-2 to oppose the bill and urge the Legislature to reject it (NY_LJ, March 4). Mark C. Zauderer of Flemming Zulack Williamson Zauderer, a civil practice committee member, questioned whether a defendant can constitutionally bring a declaratory judgment action against a foreign libel plaintiff who has no contacts with New York or the United States. The legislation also puts New York “out of line” with other states on how its courts regard foreign judgments and would craft an exception to the enforcement of foreign libel judgments that other states do not recognize, Mr. Zauderer said in an interview. “The attempt to extend jurisdiction in the way this bill does creates the impression that New York is inconsistently applying its long-arm jurisdiction, making different rules for a particular kind of action,” Mr. Zauderer said. He suggested that the legislation would become the subject of a court challenge if it becomes law. “Courts will have to determine whether somebody seeking to take advantage of this procedure can do so constitutionally in a situation in which the foreign libel plaintiff has absolutely no ties in New York,” he said.

George F. Carpinello of Boies, Schiller & Flexner in Albany, said the bill “would not accomplish what it purports to do and raises serious constitutional questions.” Mr. Carpinello is chairman of the chief administrative judge’s civil practice committee. Mr. Carpinello said the committee does not plan further criticism of the bill beyond a letter it sent to legislators in March urging them not to pass it. Aides to Mr. Paterson are also “looking at our letter,” Mr. Carpinello said. A spokeswoman for the governor declined yesterday to say if Mr. Paterson has a position on the bill. The governor does not comment on legislation before it reaches his desk, she said. Messrs. Zauderer and Carpinello have both argued that New York courts already have the leeway to enforce or not enforce foreign judgments on a case-by-case basis under Article 54 of the Civil Practice Law and Rules.


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