Two members of New York’s legislature have put forward a new Bill intended to protect writers and publishers who live and work in the State from libel actions brought against them in foreign jurisdictions. The move, by Democratic Assemblyman Rory Lancman and Republican Senator Dean Skelos, follows the decision by the New York Court of Appeals that the State’s laws did not protect writer and researcher Dr Rachel Ehrenfeld from attempts by a Saudi Arabian businessman to enforce a summary judgment issued by the High Court in London.
Sheikh Khalid bin Mahfouz and his two sons sued Dr Ehrenfeld in London for libel over her book “Funding Evil – How Terrorism is Financed and How to Stop It”. The Sheikh and his sons – who have always vehemently denied any link with terrorism, or terrorist support or funding – claimed that the book was defamatory in suggesting that they supported Al Qaida and terrorism either directly or indirectly. Dr Ehrenfeld, who lives and works in New York city, refused to take part in the litigation, brought in London because 23 copies of the book, which was published only in the United States, had been sold into Britain, and because the first chapter was available on the Internet.
Mr Justice Eady gave summary judgment to Sheikh bin Mahfouz and his sons. He ordered Dr Ehrenfeld to pay each man GBP10,000 in damages, as well as costs, to publish an apology, and not to repeat the allegations in her book, and issued a declaration that statements in the book were false. Dr Ehrenfeld applied to the Federal Court for a declaration that the judgment could not be enforced in the US courts, on the grounds that it was contrary to the First Amendment of the US Constitution, which guarantees freedom of the press, and the Court of Appeals asked the New York State Court of Appeals for its view. The New York Court of Appeals ruled shortly before Christmas that State law did not have jurisdiction to protect Americans – on US soil – from foreign defamation judgments which contradicted the US First Amendment.
Assemblyman Lancman and Senator Skelos have now introduced into the State legislature the “Libel Terrorism Protection Act” to remedy what they see as a deficiency in the law. It would amend current legislation to give a new protections to writers and publishers in New York State.
The first would be that the courts would not enforce a defamation judgment obtained in a foreign country unless a court sitting in New York first determined that the defamation law applied by the other jurisdiction “provides at least as much protection for freedom of speech 8 and press as provided for by both the United States and New York constitutions”.
The second would give the State’s courts “personal jurisdiction over any person who obtains a judgment in a defamation proceeding outside the United States against any person who is a resident of New York or, if not a natural person, has its principal place of business in New York, for the purposes of rendering declaratory relief with respect to that resident’s liability for the judgment, to the fullest extent permitted by the United States constitution”. There are two provisos to this second provision. The first is that the publication at issue would have to have been published in New York. The second is that any resident would either have to have assets in the State which might be used to satisfy the foreign defamation judgment, or might have to take actions in New York to comply with the foreign defamation judgment. The second provision would “apply to persons who obtained judgments in defamation proceedings outside the United States prior to and/or after” it comes into effect – in other words, it would give Dr Ehrenfeld retrospective protection.
Assemblyman Lancman told a news conference yesterday at which the legislation was launched in Freshfields, New York: “This legislation will give New York’s journalists, authors and press the protection and tools they need to continue to fearlessly expose the truth about terrorism and its enablers, and to maintain New York’s place as the free speech capitol of the world.” Senator Skelos said: “The ability to expose the truth about international terrorist activities is critically-important to the global war on terror. “These foreign courts are trampling the First Amendment protections guaranteed to American writers and journalists by our Constitution and this legislation will ensure that they cannot infringe upon our freedom.” Senator Martin Golden, a supporter of the legislation, said: “Under the Libel Terrorism Protection Act, writers and journalists would have foreign defamation suits declared unenforceable in New York unless the foreign law provides the same free speech protections guaranteed under our Constitution. In effect, we are giving New Yorkers a chance to have their fair day in court.” Media law specialist Mark Stephens, a partner with London firm Finers Stephens Innocent, said: “This is a welcome move injecting clarity into an area of law which has been fraught with confusion. “For a long time it has been recognised that British libel judgments are unenforceable in the US because of the protection afforded by the US Bill of Rights, but publishers have been unnecessarily chilled by findings of falsity made by the English courts. “But it is notable that following the bin Mahfouz decision there has been a marked reluctance by the English courts to impose findings of falsity which might have extra-territorial effect. “Many of these libel tourists, who are so happy to sue in London, are not prepared to submit themselves to the rigours of the US depositions process.”