New York Court Considers Free Speech Case

By MediaLawyer.Press.Net | by Mike Dodd
Friday, November 16th, 2007 @ 6:49AM

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Media groups in the United States and Britain are awaiting the result of a decision by the highest court in New York State in the latest stage of a battle between an academic and a Saudi Arabian businessman who obtained a libel judgment against her in the High Court in London. The New York State Court of Appeals yesterday heard argument on the issue of the circumstances under which New York’s so-called ”long-arm” law can be invoked to give the state personal jurisdiction over someone who is not physically in the state. The Court of Appeals, sitting in the State capital, Albany, heard arguments from Rachel Ehrenfeld, author of a book about the funding of terrorism.

Dr Ehrenfeld, who is based in Manhattan, is seeking protection from British court judgments obtained by Saudi billionaire Sheikh Khalid Bin Mahfouz, who has successfully sued a number of authors for libel in the High Court in London. Cambridge University Press recently withdrew and pulped a boojk by two other American authors, and issued an apology to Sheikh Mahfouz. Dr Ehrenfeld is the author of ‘a book called ‘Funding Evil: How Terrorism is Financed – and How to Stop It,” which was published in the United States in 2003. She filed a case in the US federal courts against Sheikh Bin Mahfouz after he and his two sons sued her in the High Court in London on the basis of some 23 copies of the book sold in the UK from the United States, and because part of the book was available on the Internet. Dr Ehrenfeld refused to respond to the litigation in England, and the Sheikh 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 awarded summary judgment. Mr Justice Eady ordered Dr Ehrenfeld to pay each man ᆪ10,000 in damages, and pay costs. He 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 said yesterday that Sheikh Bin Mahfouz had “single-handedly silenced the American media” from writing about him and others, the Associated Press news agency reported. It said that lawyers for Sheikh Bin Mahfouz did not immediately respond to requests for comment. But the possibility that Sheikh Bin Mahfouz might try to enforce the English court’s judgment in New York has raised support for Dr Ehrenfeld among media groups in the United States and Britain. Media Guardian reported yesterday that a consolidated amici curiae (friend of the court) brief – backed by every major newspaper group in the UK, including the Guardian – urged the court to recognise the “growing and dangerous threat of “libel tourism”, which it described as “the cynical and aggressive use of claimant-friendly libel laws in foreign jurisdictions…” which “has chilled and will continue to chill Dr Ehrenfeld’s exercise of her free speech”.

Although Dr Ehrenfeld’s lawsuit was filed in federal courts, much of it deals directly with New York state law, so the state court is charged with interpreting that law before the issue is returned to U.S. Court of Appeals for the Second Circuit. The Second Circuit court said: ”The issue may implicate the First Amendment rights of many New Yorkers, and thus concerns important public policy of the state.’ Current law indicates that New York State has jurisdiction over someone outside the state if he or she ”in person or through an agent” transacts any business within the state – as long as the legal action arose from those New York transactions. The court must determine if existing laws give the state jurisdiction over someone in another country who sues a New Yorker. It will also have to decide if interactions with New York state stemming from a foreign lawsuit qualify as doing business in the state – and specifically, whether Sheikh Bin Mahfouz conducted business in New York in his legal interactions with Dr Ehrenfeld.

According to court documents, Sheikh Bin Mahfouz argues that his actions in New York are not equivalent to doing business there, so he is not subject to the long-arm statute. Dr Ehrenfeld said yesterday that her response to Sheikh Bin Mahfouz’s libel action in London was that she would not acknowledge the court in England, and added ”I’m an American … If he wants to sue me, he should come to sue me in America.” In the federal lawsuit, Ehrenfeld has asked the court to declare that Sheikh Bin Mahfouz could not win a claim of libel against her under United States law, which would make the English High Court’s decision unenforceable in the US. She also claims in her case that Sheikh Bin Mahfouz sued her in London because English libel law favours claimants, and warns that his actions are leading to ”libel tourism”. Her case alleges that he has sued or threatened to sue for defamation in the English courts at least 29 times over statements or allegations which have linked him to terrorist financing.

An undated statement issued on Sheikh Bin Mahfouz’s family website said: ”The Bin Mahfouz family has suffered for over a year from unsubstantiated innuendo and inaccurate reporting (much of it corrected or withdrawn too late to be helpful). “It is, naturally, distressed that it now faces many of the same untrue allegations in filed civil actions. The family repeats that it abhors and condemns all acts of terrorism and that there is not a shred of evidence to justify the actions and lengthy legal process involved. It will, of course, vigorously contest them.” Another page on the site, headed Litigation, details libel cases the Sheikh has won – and carries a warning which reads: “The publications listed on this page – books, reports, newspapers, magazines and web based publications – contain numerous errors of fact about Khalid Bin Mahfouz and his family. Some of them make serious allegations against him, which are manifestly false and defamatory. “Khalid Bin Mahfouz and his family reserve their rights against the authors, editors, publishers, distributors and printers of these publications. Furthermore, it should be noted that they expressly reserve their rights against any person or entity which repeats any of the erroneous allegations contained in these or any other publications.”

Mike Dodd Editor Media Lawyer PA Business

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