Libel Tourism Part 3
I have been reviewing my posts and identifying stories that may have developed since I last posted about them. The case of Rachel Ehrenfeld is one. I won’t post all the details again, you can read them in the two previous posts, here and here, but I will summarize them [from my previous posts] –
In 2005, Rachel Ehrenfeld published Funding Evil: How Terrorism Is Financed and How To Stop It, in which she wrote that Saudi businessman, Khalid Salim bin Mahfouz, had financed al-Qaida through the family’s National Commercial Bank of Saudi Arabia and Islamic charities. Mahfouz sued Ehrenfeld for libel in the UK. When Ehrenfeld did not appear, the British court entered a default judgment against her, awarded Mahfouz substantial money damages, and enjoined the publisher from making the book available in the UK. (For example, Amazon (UK) does not list the book.)
Ehrenfeld then filed an action in US federal district court, arguing that Mahfouz would not have been able to prevail had he sued in the US and, therefore, the British judgment is unenforceable here because it violates the First Amendment. She also argued that Mahfouz should have sued her in US courts, as she is American and lives here. And that Mahfouz engaged in forum shopping by bringing the suit in the UK, where the libel laws are more liberal.
The federal district court, sitting in diversity jurisdiction, asked New York’s highest court, the Court of Appeals, to interpret the state’s long-arm statute and whether it applied to Mahfouz to give the federal court personal jurisdiction over him.
On December 20, 2007, the Court of Appeals decided that Mahfouz had not transacted any business in New York “in person or through an agent” and therefore the state long-arm statute did not apply to him. If Mahfouz were to petition a US court to enforce the British judgment here, a sustained attorney-client relationship in the state might be sufficient to make him subject to NY laws and court jurisdiction.
That was not a defeat for Ehrenfeld. In their decision, the Court of Appeals stated, “At the outset, it is important to emphasize that we are called upon to decide a narrow issue. The Second Circuit has not asked us to opine upon the propriety of English libel law or its differences from its United States and, particularly, New York State counterparts. And we decline to do so.”
In response to the court decision, the New York State Assembly (legislature) passed “The Libel Terrorism Protection Act,” which was signed into law by the Governor in April 2008. The law states that a New York court need not recognize a foreign judgment if –
the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.
– New York Consolidated Laws, Civil Practice Law and Rules, Article 53 Recognition of Foreign Country Money Judgments § 5304. Grounds for non-recognition.
What the New York law does is allow state courts to not enforce judgments entered in foreign jurisdictions when those jurisdictions do not have at a minimum the same free speech guarantees as those in the US Constitution first amendment.
As I noted before, the UK is a defamation plaintiff’s paradise. A plaintiff there, to maintain a suit for libel, slander or defamation, need overcome very low legal thresholds.
In this case, the cause of action arose out of the fact that Ehrenfeld’s book was available in the UK. Neither party resided there. The plaintiff’s lawyers shopped for the forum that would be most convenient for the case.
As a matter of practice, known as “comity,” courts in the US and elsewhere generally recognize the judgments of foreign courts. Given that the Internet makes it possible to circulate any statement around the world, though, there exists a heightened potential for abusing the practice. Without laws like the one passed in New York, anyone who feels slighted can silence the author by filing a suit in a friendly court and seeking enforcement of the court’s judgment in the jurisdiction where the author resides.
Fortunately, the US Congress is considering a bill similar to the New York law. H.R. 6146, in part, states –
(a) Findings.–Congress finds the following:
(1) The first amendment of the Constitution of the United States prohibits the abridgment of freedom of speech.
(2) Freedom of speech is fundamental to the values of American democracy.
(3) In light of the constitutional protection our Nation affords to freedom of speech, the Supreme Court has modified the elements of the common law tort of defamation to provide more protection for defendants than would be available at common law, including providing special protections for political speech.
(4) The courts of other countries, including those that otherwise share our Nation’s common law and due process traditions, are not constrained by the first amendment and thus may provide less protection to defamation defendants than our Constitution requires.
(5) While our Nation’s courts will generally enforce foreign judgments as a matter of comity, comity does not require that courts enforce foreign judgments that are repugnant to our Nation’s fundamental constitutional values, in particular its strong protection of the right to freedom of speech.
(6) Our Nation’s courts should only enforce foreign judgments as a matter of comity when such foreign judgments are consistent with the right to freedom of speech.
(b) Purpose.–The purpose of this Act is to protect the right to freedom of speech under the first amendment to the Constitution of the United States from the potentially weakening effects of foreign
judgments concerning defamation.
Note that the bill in Congress goes further than the New York law. While the New York law allows the state court some discretion — “a New York court need not recognize a foreign judgment if” — the language in the proposed bill before Congress is mandatory. The key portion of H.R. 6146 states –
(a) First Amendment Considerations.–Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation that is based upon a
publication concerning a public figure or a matter of public concern unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States.
The scope of the bill before Congress is quite broad. It would trump any other federal or state law. It would also apply to publications concerning a “public figure or a matter of public concern.” The disjunctive “or” is key here. Even if the plaintiff shows to the court’s satisfaction that he is not a “public figure” and thus the law should not apply to his suit, the court may still find that matter at issue is one of “public concern.” No one could fault a court for finding that a publication, like Ehrenfeld’s, about financing terrorism through money laundering, is a matter of public concern. In that case, the proposed bill, once signed into law, would bar the plaintiff from seeking to enforce his foreign judgment in any US court.
The bill under consideration in Congress would apply to all courts in the US, federal and state.
Congress would do well to act with alacrity on this important and necessary legislation. And the President should sign it into law without delay once it is presented to him.
Sources: New York Consolidated Laws, Civil Practice Law and Rules, Article 53 Recognition of Foreign Country Money Judgments § 5304. Grounds for non-recognition, US Government Printing Office (GPO Internet Access)(accessed Sept. 18, 2008), Library of Congress FindLaw website (accessed Apr. 17, 2009), OpenCongress website (accessed Apr. 17, 2009)
