NEW YORK’s Highest court turned down a chance today to protect American authors from libel judgments awarded by foreign courts. The case decided today, which pits a Saudi billionaire against a New York-based researcher, was a test of how New York’s courts will respond to concerns that the First Amendment rights of American authors are being undermined by libel judgments imposed abroad, especially in Britain. Libel law in Britain is far more plaintiff-friendly than America’s libel law, and the discrepancy has given rise to a practice that critics describe as “libel tourism.”
In recent years, American authors and journalists have found themselves sued by non-British nationals in British courts over articles and books published in America. Today the Court of Appeals in Albany said that New York law did not allow the researcher, Rachel Ehrenfeld, to seek a court order saying that a British judgment against her was unenforceable under the First Amendment. The Court said it did not have jurisdiction over the Saudi financier and that Ms. Ehrenfeld’s suit to block the judgment must be dismissed.
The court’s opinion, written by Judge Carmen Beauchamp Ciparick, an appointee of Governor Cuomo, largely sidesteps any of Ms. Ehrenfeld’s First Amendment considerations. Of “libel tourism,” the decision states: “However pernicious the effect of this practice may be, our duty here is to determine whether defendant’s New York contacts establish a proper basis for jurisdiction.” A lawyer in Boston who has written on the case, Harvey Silverglate, said: “The New York Court of Appeals could have done a better job of protecting our Constitutional rights than it did here with this rather technical opinion.”
At issue was Ms. Ehrenfeld’s 2003 book, “Funding Evil: How Terrorism is Financed — and How to Stop It,” in which she accused a Saudi financier, Khalid bin Mahfouz, of backing organizations with alleged ties to terrorism. It is a charge that Mr. Mahfouz denies. Mr. Mahfouz sued Ms. Ehrenfeld and other researchers who made similar accusations against him in court in London. Ms. Ehrenfeld’s work has appeared in many publications including The New York Sun. Ms. Ehrenfeld never appeared before the British court, which in 2005 ordered her to pay 30,000 British pounds, print an apology, and keep her books out of the country.
Today’s ruling is in response to Ms. Ehrenfeld’s countersuit, which sought a court order blocking enforcement of the judgment. The Court of Appeals said that a New York court had no jurisdiction to hear her countersuit against Mr. bin Mahfouz because he has few ties to New York. A lawyer for Ms. Ehrenfeld had argued that Mr. bin Mahfouz’s threats that he would collect on the British judgment were enough to give the court jurisdiction over Mr. Mahfouz. She claimed that her research and writing were hampered by the British court judgment hanging over her head.
The court’s decision today does not preclude Ms. Ehrenfeld from raising those concerns again in the event that Mr. Mahfouz actually goes to court in New York to try to collect on the judgment before she could contest it. A lawyer for Mr. Mahfouz, Timothy Finn of the firm Jones Day in Washington, declined to comment. Last year, Britain’s highest court, the House of Lords, made it significantly more difficult for journalists to be sued for libel. That decision came in a case against the Wall Street Journal Europe brought by another Saudi businessman.