Libel Tourists Out, Says New York State

By Gazette of Law and Journalism | by Michael Cameron
Thursday, March 20th, 2008 @ 5:50AM

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As “libel tourism” burgeons in Britain, the State of New York is set to protect its writers and journalists from such action via the Libel Terrorism Protection Act. Michael Cameron reports from the Big Apple on what this means for free speech and America’s “war on terror” By Michael Cameron* New York’s independent journalists and freelance writers stand to benefit from a new state law that protects them from liability for defamation judgments awarded overseas. Angered by judicial decisions in London in recent years, the New York State Assembly is pushing through new legislation to stem the flow of “libel tourists” across the Atlantic.

The Libel Terrorism Protection Act received unanimous endorsement in the New York Senate last month and, gubernatorial scandals notwithstanding, is likely to be passed in the Assembly in the coming weeks. The bill is the legislature’s response to a decision in the New York Court of Appeals in December concerning the long-running defamation case between New York-based author, Dr Rachel Ehrenfeld and a Saudi businessman, Sheikh Khalid Bin Mahfouz.

Ehrenfeld, the author of the book Funding Evil: How Terrorism is Financed And How to Stop it, was the subject of a default judgment by Justice Eady in the High Court of Justice in London in July 2005. Her book alleges that Bin Mahfouz and his family were among the main sponsors of Al Qaeda and other terrorist organizations and channeled money to charities acting as fronts to Al Qaeda. Bin Mahfouz denies any link to terrorism. While the book was published in the US, 23 copies made their way to Britain, purchased on the internet. In addition, the first chapter of the book could also be downloaded from an American website.

The wealthy Saudi businessman chose London to bring the action against Ehrenfeld and not the USA, where it was published, thereby denying the defendant, a US citizen, the protections of the First Amendment. Rather than subject herself to the English courts, Ehrenfeld, who has no assets in the UK, decided to stay at home and not answer the claim. In her absence, Justice Eady (pic) awarded judgment to Bin Mahfouz and ordered that Ehrenfeld apologise and pay him damages, reported at the time as US$225,000. Ehrenfeld has ignored the order and the Sheikh has made no attempt to enforce the decision in the USA.

As a result of the English court’s decision, Dr Ehrenfeld, who has traveled often to London in the past, is now effectively barred from any future travel to the UK, lest she is met with an arrest warrant at the airport. “I can’t go there any more because my freedom is important to me,” Dr Ehrenfeld said in an interview with the Gazette of Law and Journalism. “Justice Eady’s ruling hinders my ability to conduct research in the UK, thus adversely affecting my work and income.” With the support of local media lawyers, Dr Ehrenfeld decided to take a proactive approach to the English judgment by bringing her own action against Bin Mahfouz in a Manhattan court, seeking a declaratory judgment that Judge Eady’s decision should be declared void as it was antithetical to the free speech protections afforded by the US Constitution.

While apparently sympathetic to the cause, the New York Court of Appeals ultimately found that the state’s “long-arm” statute did not cover the absent defendant in this case as Bin Mahfouz was not transacting business in the state. The new bill would amend the statute, section 302 of the New York Civil Practice Law and Rules (CPLR), effectively granting courts jurisdiction over a foreign libel plaintiff who wins a foreign defamation judgment when the author or publisher (not the complainant) is adjudged to have sufficient ties to the state. The current law requires both parties to have connection with New York State.

“Why should American writers be silenced because foreign laws do not allow free reporting?” Dr Ehrenfeld said this week. For Assemblyman Rory Lancman, of the Twenty-Fifth District in New York City, there is an inexorable link between the fight against global terrorism and those legal systems which “enable” supporters of terrorism in the defamation courts. “The information they [authors, journalists] unearth informs not just the general public, but policymakers who must make choices about strategies and tactics, resources and priorities, allies and adversaries, in how to best fight this war. Without their work, we are all merely groping around in the dark,” Assemblyman Lancman recently wrote on the website “The terrorists and their enablers know this. That is why American journalists and authors who relentlessly and doggedly pursue the truth about terrorism networks are being met with a barrage of libel lawsuits in kangaroo courts on phony-baloney libel charges in overseas jurisdictions who don’t share our belief in freedom of speech or a free press. England seems to be the enablers’ forum…”

In 2007 English publishing house Sweet and Maxwell reported that “libel tourism” actions by non-resident businessmen from the Gulf states amounted to 13 per cent of all defamation cases in England, a tripling of the number from the year before. Bin Mahfouz has been involved in a number of these cases. In July 2007 Cambridge University Press chose to pulp its book Alms for Jihad rather than defend itself against the alleged defamation of the Mahfouz family. “Most American publishers today refuse to publish anything on terrorism, terror financing and certainly work that implicates any Saudi or other Gulf state individuals or institutions,” said Dr Ehrenfeld. “Apparently, economic considerations won over their supposed commitment to the reading public – expose the truth. Instead, all retracted, and most apologized and paid fines. I alone refused to acknowledge the British court and didn’t apologise.”

Despite its promise, the new law of libel terrorism does not quite represent “mission accomplished” for those American media companies with global reach. For one, it only applies to defendants based in New York State. Any media entity with global reach can still be dragged into court in any country around the world where they have business interests, to face local law. The new law will protect individual authors and smaller publishing houses based in New York State from exposure to foreign jurisdictions. Jason Criss, an associate with Covington and Burling in New York City, represented media companies as amici in the Ehrenfeld case. He said the new law represents an important step in the US media’s attempts to counter the effects of libel tourism upon American writers and journalists. “I think one shouldn’t underestimate the power of symbolic actions or declaratory judgment,” Criss told the Gazette. “Sheikh Bin Mahfouz was never interested in enforcing the judgment [against Ehrenfeld]. He’s a multi-millionaire. It wouldn’t be worth his while. This gives American authors the ability to get a declaratory judgment in a US court. I think that declaration can be a pretty powerful counter-balance.” *Michael Cameron is an in-house lawyer for The New York Post and member of the Committee on Communications & Media Law of the New York City Bar. The Committee recently issued a discussion paper in support of the Libel Terrorism Protection Act.

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