Several months ago I began an analysis of the misuse of foreign and domestic judicial systems for political purposes. At the same time it seemed as though there were frequently instances of strange happenings in the news. Taxi drivers not allowing passengers with seeing-eye dogs in their cars because it was inconsistent with their religious beliefs, imams being removed from a flight after acting suspiciously and then suing the airline for unspecified damages, citing “fear, depression, mental pain and financial injury”, and one my personal favorites, the Oklahoma State Legislature practically coercing legislators to accept a personalized and state-seal embossed Koran as a gift, paid for with government funds, in honor of the state’s centennial.
And then there were the defamation cases. Litigious Muslim plaintiffs and Islamic organizations alleged to have connections to terror financing such as the Islamic Society of Boston in their suit against the Boston Herald, et al., and the Global Relief Foundation in their suit against the New York Times, et al., and were suing individuals and groups for libel. Many of these suits were arguably frivolous, initiated with the sole purpose of silencing the defendants, knowing full well that most people do not have the time, money or desire to engage in a long and protracted legal battle. In the United States, plaintiffs in these cases almost always lose, but not before achieving part of their objective which is to silence criticism. After all, who would bother to investigate and critique if they know that dissemination of their work will just land them back in court?
But the plaintiffs got wind of a great idea ﾖ if they sued for libel abroad they would have a much better chance of actually winning. To bring a defamation suit in a particular country, the plaintiff must have a reputation in that territory and must show that the material in question was published there. Plaintiffs may choose to sue in any country of publication, if the publication is international. They are not required to choose the country with the highest distribution rate, although at times there are arguments relating to appropriate venue. Plaintiffs naturally choose the jurisdiction that is most favorable to them – usually it is England, which has plaintiff-friendly libel laws. It is important to bear in mind that this concept of libel tourism was not invented by Muslim plaintiffs to impede investigations. As early as 1959, Liberace chose to sue the Daily Mail in the U.K. for daring to publish the suggestion that he was gay and he received substantial damages from the court – $8000 (the largest ever libel settlement up to that time) and an apology. From that success we get his famous quote “I laughed all the way to the bank.”
More recently, in 1996, the Russian businessman Boris Berezovsky sued New York-based Forbes Magazine for an article about his business background. The dispute was ultimately settled with the magazine retracting the allegedly libelous claims. New South Wales is also a popular destination for libel tourists. In 2003, Dow Jones lost a case against Mr. Joseph Gutnick who sued them for libel over a statement that was posted on a website originating in the United States. Dow Jones argued that exposing them to potentially global liability “from Afghanistan to Zimbabwe” was unreasonable. They suggested the proper venue was New Jersey where the story was uploaded to its server. The Australian court dismissed the suggestion, claiming that it was an attempt to impose American law on all stories regardless of their place of publication.
While there have been defamation lawsuits in the United States that were used to silence critics of Islamic extremism, nearly all never saw the light of a courtroom and those that did, simply lost. Jeffrey Breinholt, formerly the Deputy Chief of the Counterterrorism Section at the U.S. Department of Justice, has compiled an extensive database of cases to that effect. Because of this poor record of success in the American courts, libel tourism was growing in popularity. With the knowledge of the way things work and the history of the libel cases, these plaintiffs were armed with three important pieces of information which led to an increase in the number of lawsuits: first, libel plaintiffs in England almost always win; second, they typically receive sizeable damage awards; and third, if they win, the losing parties must also reimburse them for nearly all their legal fees and costs.
Of those cases, one stood out and that was the case of Rachel Ehrenfeld and Sheikh Khalid Salim bin Mahfouz. What made it so worthy of note was that the dispute was not over ﾖ despite her loss in the London High Court of Justice, Ehrenfeld wanted to continue to fight and began her appeal to the American courts, first the federal in the Southern District of New York and then to the New York State Court of Appeals to which the Second Circuit deferred judgment on the question of personal jurisdiction over Mahfouz. Libel tourism is a bullying tactic, and a successful one at that, which caused writers, journalists, and publishers to capitulate at the mere threat of a lawsuit – the famous “chilling effect” on free speech. Here was one defendant who refused to be bullied, but the media was not taking her case seriously and provided minimal coverage. As November 15, the date that the New York State Court of Appeals was to begin hearing arguments, drew near, I published a piece about Ehrenfeld’s case to draw attention to the importance of the issues. The next day I got a call from Assemblyman Rory Lancman who had read what I wrote and said that he was interested in introducing legislation to address the growing problem that New Yorkers, but really all Americans, were facing.
The momentum had grown in support of the “Libel Terrorism Protection Act” and had captured the national interest with comparable federal legislation entitled the “Free Speech Protection Act” (H.R. 5815) having been introduced by Congressman Peter King of New York. On April 30, 2008, Governor David A. Paterson of New York State signed the bill into law. The purpose of the Libel Terrorism Protection Act is to ensure that foreign judgments that are at odds with American law and public policy will not be enforceable in New York State. It may seem odd to some that U.K. and U.S. defamation law diverge as they do, considering our shared legal foundations, with a large part of U.S. law having been derived from the British Common Law. However, our Constitutionﾒs Bill of Rights, though modeled after the English Bill of Rights, provides protections where the English version did not go far enough. For instance, the English Bill of Rights only protected “freedom of speech and debates or proceedings in Parliament” while our First Amendment guarantees freedom of speech to the general population. The framers of the Constitution felt it was important to codify in the First Amendment protections of not only free speech, but also of the press, religion, and assembly to safeguard against encroachment by the government on the rights of the public.
Some may argue that First Amendment protections stop at our borders and that one cannot invoke our Constitution in cases simply because they were decided in a foreign jurisdiction, but that is not necessarily so. The doctrine of comity does not bar asserting free speech rights if you are sued in a foreign court. Comity in international law is loosely defined as reciprocity or mutual respect among nations by recognizing the validity and effect of foreign executive, legislative, and judicial acts. More specifically, the New York State Court of Appeals in Gotlib v. Ratsutsky, 83 N.Y.2d 696, 700 (1994) defines it as “an ordered sense of respect and tolerance for the adjudications of foreign nations, paralleling that commanded among the States by the Full Faith and Credit Clause of the United States Constitution.” Comity is an important tool for international law but it is not a matter of absolute obligation.
One of the exceptions to the doctrine of comity allows a non-U.S. judgment not to be recognized if the cause of action on which the judgment is based is “repugnant” to domestic public policy. The New York State Supreme Court held in Bachchan v. India Abroad Publ’ns Inc., 585 N.Y.S.2d 661, 662 (Sup. Ct. 1992) that non-U.S. judgments that impinge on constitutional rights, especially First Amendment rights, can be found to fall under that exception. British defamation law as it exists is almost antithetical to American values that protect free speech. There is a presumption of falsehood when bringing a libel lawsuit in English courts as opposed to American courts where there is a presumption of truth and falsehood needs to be proved. This knowledge has given plaintiffs the security and encouragement to go “forum shopping” to address their grievances and choose the British courts (or those of New South Wales) as the venue to bring their suits. While it is not as simple as automatically invalidating contradictory foreign laws, case law allows for a process where the exception can be made.
And, the Libel Terrorism Protection Act gives the law extra teeth. The Act extends the long arm of the law to give the New York courts jurisdiction over libel tourists like Mahfouz and takes the guesswork out of where the doctrine of comity applies when it comes to Americans exercising freedoms of speech and of the press. Elizabeth Samson is an attorney specializing in international law and constitutional law. She is a Legacy Heritage Fellow in New York where she is conducting an analysis of the misuse of foreign and domestic judicial systems. Ms. Samson formerly served as an Adjunct Professor of International Law and Constitutional Law at Queens College – CUNY. Ms. Samson holds a J.D. from Fordham Law School in New York and an LL.M. in International and European Law from the University of Amsterdam, the Netherlands.