The New York State Supreme Court has agreed to request to investigate whether the State’s law would give a federal court the right to protect one of its citizens from enforcement of an award of damages and a costs order made by an English Court. The request to the New York Supreme Court was made by the United States Second Circuit Court of Appeals – a federal court – as it dealt with a request by academic Dr Rachel Ehrenfeld for an order protecting her from enforcement of a summary judgment issued in the High Court in London by Mr Justice Eady. The New York court announced on June 28 that it was accepting certification of the federal court’s question.
The move was one of the latest stages in the battle between billionaire Saudi businessman Sheikh Khalid Bin Mahfouz and his two sons and New York-based Dr Ehrenfeld, director of the American Centre for Democracy, over her book, Funding Evil – How Terrorism is Financed – and How to Stop It. In another move, on July 13, the US Second Circuit Court of Appeals rejected an application by Sheikh Bin Mahfouz to reconsider its decision that the case bought by Dr Ehrenfeld was “ripe”. In effect, this means that journalists and authors in the United States have the right to apply to the federal courts to protection against the enforcement of orders for damages, costs, and apologies, and injunctions ordering them not to repeat statements the English court views as defamatory.
Dr Ehrenfeld launched her case in the US after Sheikh Bin Mahfouz and his sons sued her in London and won summary judgment. Dr Ehrenfeld played no part in the litigation. The case was launched in London because some 23 copies of Dr Ehrenfeld’s book, which was published only in the United States, were sold to buyers in Britain, and because one chapter appeared on the Internet and could be accessed in the UK. Sheikh Bin Mahfouz and his sons – who have always denied having any links with terrorism or terrorist funding, or with Osama Bin Laden’s Al Qaida terror organisation – were each awarded GBP10,000 in damages, and costs. Mr Justice Eady also made a declaration that certain statements in Dr Ehrenfeld’s book were false, issued an injunction prohibiting their repetition, and ordered Dr Ehrenfeld and her publisher to publish a suitable apology.
Dr Ehrenfeld then applied to the US District Court in New York for a declaration that Mr Justice Eady’s judgment would be unenforceable in the United States, because it breached the US Constitution. After the court held that it had no jurisdiction to make such a declaration, Dr Ehrenfeld – who also seeks a declaration that Sheikh Bin Mahfouz’s defamation case against her could not succeed in New York or in the United States – appealed to the US Second Circuit Court of Appeals. That court certified a question to the New York courts on whether New York State law would give the Federal Court jurisdiction over Sheikh Bin Mahfouz. New York has a so-called “long-arm statute” which confers jurisdiction over someone who does not reside in the State who “in person or through an agent … transacts any business within the state” if the cause of action arises out of the defendant’s New York transactions. Circuit Judge Wilfred Feinberg, giving the court’s decision, wrote that it believed that the case involved public policy issues which justified asking the New York courts for guidance, and involved issues which had not yet been addressed and about which New York State court decisions did not give a clear answer. “The question is important to authors, publishers, and those, like Mahfouz, who are the subject of books and articles. Thus the question is ‘significant’,” he wrote. “The issue may implicate the First Amendment rights of many New Yorkers, and thus concerns important public policy of the State. Because the case may lead to personal jurisdiction over many defendants who successfully pursue a suit against a New York citizen, the question before us is also likely to be repeated.”
The case has caused considerable comment in the United States. A recent article on the website FrontPageMagazine.com quoted Harvey Silvergate, a senior lawyer with the American Civil Liberties Union, as describing it as “one of the most important First Amendment cases in the past 25 years”. It has also sparked criticism of English defamation law, with US observers and journalists pointing out that English law is more claimant-friendly than American law, and that the English courts are becoming a centre for “libel tourists” bringing cases in London which they could not hope to be able to launch in the US.