Publishers and journalists in the United States are awaiting the decision of a federal Appeals Court after it reserved judgment in a case in which an American terrorism researcher has asked for protection from enforcement of a British court’s order that she should pay damages for libel. Dr Rachel Ehrenfeld went to the US District Court in New York after Mr Justice Eady, sitting in the High Court in London , ordered her to pay Sheikh Khalid bin Mahfouz and his two sons ﾣ10,000 each in damages – the maximum allowable under summary disposal for a defamation case – in a decision handed down in June last year. 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, and to pay the claimants’ costs.
Sheikh bin Mahfouz sued in London on the basis that some 23 copies of Dr Ehrenfeld’s book, entitled Funding Evil, How Terrorism is Financed – And How to Stop it, which was not published in Britain, got into the country after being sold by Internet booksellers, and because one chapter appeared on the Internet and could be accessed in England and Wales. Dr Ehrenfeld, who lives and works in New York , did not attempt to defend the case in London .
But after Mr Justice Eady’s judgment, she applied to the US District Court in New York for a declaration that the British court’s judgment was not enforceable. The court declined to make such a declaration, saying it had no jurisdiction. The 2nd US Circuit Court of Appeals heard the case on November 8. One of the court’s three judges expressed reservations about the order made by Mr Justice Eady, according to a report in the New York Sun newspaper. But questions from the judges also suggested that they had significant doubts that the court had the jurisdiction to toss out the British court’s judgment in the libel case. Dr Ehrenfeld’s claim is based on her allegation that she is a victim of libel tourism – she says she was sued in London because Sheikh Mahfouz and his sons knew that they would not win an action if they had brought it in the United States courts.
The New York Sun described libel tourism as “the phenomenon of foreigners filing libel suits in British courts based on claims that American judges would quickly toss out on First Amendment grounds”. The newspaper also reported that the Appeals Court expressed little interest in the First Amendment concerns that legal observers say are present in the case. One judge on the panel, Jose Cabranes, seemed worried that a ruling in Dr Ehrenfeld’s favour could open the US courts to cases challenging the judgments of other courts across the globe, it said.
Dr Ehrenfeld’s attorney, Daniel Kornstein, told the Appeals Court that it had jurisdiction because aspects of the British judgment amount to “intrusion into New York”, The New York Sun reported. The case was “the grinding down of Doctor Ehrenfeld,” Mr Kornstein said, adding that the effect of Mr Justice Eady’s judgment was to make her and other journalists think twice before pursuing investigative projects.
Judge Pierre Leval suggested the part of the order requiring Ms Ehrenfeld to keep her books out of Britain might be enough to allow her case to go forward, and asked: “If a foreign litigant seeks and obtains from a foreign court an order that requires action in the US, why should that not be sufficient to give jurisdiction to US courts?” The case has provoked considerable interest in the United States , where courts give greater sway to the freedom of speech guaranteed by the First Amendment to the US Constitution. Dr Ehrenfeld has been supported in her application by a large consortium of media groups – including some from Britain – and press freedom campaigners.