New York Moves A Step Closer To Libel Tourism Ban

By Media Lawyer | by Mike Dodd
Monday, March 3rd, 2008 @ 5:53AM

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A Bill intended to amend New York’s laws so as to protect writers and publishers from decisions in defamation cases brought in foreign courts has passed a major stage of the process in the State legislature. The Libel Terrorism Protection Act was given a unanimous passage in the state Senate in Albany, the New York Law Journal reported. The Bill is intended to amend New York’s so-called long-arm statute so as to give the state’s courts jurisdiction over a foreign libel claimant who won a judgment against an author or publisher with sufficient physical or financial ties to the state. It would allow New York’s courts to declare that a foreign judgment was unenforceable if the courts decided that the libel laws in foreign jurisdictions did not freedom of speech and the press to the same extent as the laws in New York and the United States.

The extension of jurisdiction to New York courts would be limited to an action by a writer or publisher seeking a finding that the foreign court’s libel judgment was unenforceable. The New York Law Journal reported that the Bill had made “unusually swift” progress since being introduced into the legislature and said new legislation usually took several months, or even years, to reach the floor of the Assembly or Senate. Solicitor Mark Stephens, a media specialist partner in London law firm Finers Stephens Innocent, said: “The speed with which this legislation is passing through the New York legislature should temper the enthusiasm of Claimants to pursue foreign authors and publishers through English Libel Courts. “Statements made in predominantly foreign publications should be judged by the prevailing standards of the country in which they are published.”

The Bill was introduced into the State legislature in January by Democratic Assemblyman Rory Lancman and Republican Senator Dean Skelos after the New York Court of Appeals held that the State’s laws would 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. The case was brought in London because 23 copies of her book, which was published only in the US, were 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, ordering Dr Ehrenfeld to pay each man $10,000 in damages, as well as costs, as well as to publish an apology, and not to repeat the allegations in her book. He also 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. The Federal Court referred the issue to the New York State Court of Appeals – which said the state’s law did not at present offer such protection, and that it was for the legislature to decide whether it should do so. The Bill introduced by Assembleyman Lancman and Senator Skelos would offer that protection – which would be retrospective. The New York Law Journal quoted First Amendment expert attorney Floyd Abrams, of law firm Cahill Gordon and Reindel, as saying that the Bill was moving so fast because it united powerful forces. “It has brought together two propositions that have widespread support: There is considerable support, if not total support, for the notion that First Amendment rights should be protected,” Mr Abrams was quoted as saying. “There is total support for the notion that when an American writes a book about terrorism, she shouldn’t be dragged around the world to defend herself and then find herself with a foreign judgment that is enforceable here.”

Mr Abrams said he did not know of any foreign libel laws which a New York judge would be able to find provided freedom of speech and press protections equal to or greater than those in New York and the US. Assembleyman Lancman said: “For all intents and purposes, this legislation would bar any defamation judgment obtained outside the United States from being enforced in New York.” The Bill has cleared the Assembly’s Judiciary Committee and is now before the chamber’s Codes Committee. Mr Lancman said he expected the bill to pass the full Assembly by next month. It would have to be signed into law by Governor Eliot Spitzer. But his office does not discuss pending legislation until it reaches his desk. Mr Lancman said he began working on the legislation just after the New York Court of Appeals decided that State law did not give it the jurisdiction to offer Dr Ehrenfeld protection from the enforcement of a foreign defamation judgment. “The Court of Appeals invited the Legislature to act, and we are acting,” Mr. Lancman said.

The New York Law Journal reported that those backing the Bill included the New York City Bar Association’s Committee on Communications and Media Law, Manhattan District Attorney Robert M. Morgenthau, the New York State Trial Lawyers Association and the Association of American Publishers. The legislation’s supporters say the Bill will extend to libel judgments protections which already exist in New York law in regard to money judgments – the state’s courts can refuse to recognise and enforce foreign money judgments where the “cause of action on which the judgment is based is repugnant to the public policy of this state”. The new Bill would give authors and publishers a right to redress if they were residents of the state, had New York as their principle place of business, published the materials at issue in New York, or had assets in New York being sought by claimants in a libel action.


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