British libel laws that favor plaintiffs led one publisher to destroy unsold copies of a book about terrorism financing and to ask librarians to pull it from shelves despite the authors’ complaints that “libel tourism” will chill important scholarship.
The contested book, Alms for Jihad: Charity and Terrorism in the Islamic World, examines the recent “dramatic proliferation of Islamic charities,” according to an overview on the publisher’s Web site. “While most are legitimate, considerable evidence reveals that others have more questionable intentions, and that funds have been diverted to support terrorist groups, such as al-Qaeda.” The book traces the flow of money from the charities back to terrorist groups in the Middle East. Cambridge University Press published the book in April 2006.
In the spring of 2007, Saudi businessman Khalid bin Mahfouz sued Cambridge University Press in England, claiming the book’s allegations that he and his family had financed terrorists were false and defamatory. The New York Times reported Oct. 7, 2007 that the publisher agreed in August 2007 to destroy 2,300 unsold copies, pay undisclosed damages and attorney fees, offer a written apology, and ask librarians to remove the book from shelves.
Under English libel law the burden is on the defendant to prove the truth of defamatory passages in a publication. In the United States, the plaintiff must prove the claims are false and, in the case of a public figure, that they were made with actual malice. “Actual malice” means the defendant knew the claims were false or acted with reckless disregard for the truth. The differences make it much easier to prevail on defamation suits in England than in the United States, especially for public figure plaintiffs.
According to the Times, the Cambridge University Press determined that the suit would be impossible to defend because bin Mahfouz had already won several libel suits in England against publishers who had printed similar allegations. But authors J. Millard Burr and Robert O. Collins argued that bin Mahfouz is mentioned only 11 times in 350 pages, and the whole publication should not be scrapped because of the complaints of one individual.
Burr, a retired State Department official, and Collins, a history professor at the University of California, Santa Barbara, said they wrote the book after extensive research and stand behind most of their claims. The authors told the Times that the book contains two errors related to bin Mahfouz. First, his family is not intermarried with the bin Laden family, and second, he was a director and not chief executive officer of a bank the Manhattan district attorney charged with fraud in 1992. Bin Mahfouz paid $225 million to settle that case, involving the Bank of Credit and Commerce International, in 1993, but he did not admit fault.
Burr and Collins told the Times that they had reacquired the copyright to the book and were looking for a U.S. publishing house to reissue it. However, bin Mahfouz has previously won judgments in English courts against American publishers and authors because the challenged book was available over the Internet in England. He has filed, or threatened to file, so many libel suits in England against foreign plaintiffs that some critics have labeled him a “libel tourist.” (For more on international libel tourism cases, see “Appeal in Canadian Libel-Tourism Case Denied” in the Winter 2006 issue of the Silha Bulletin.)
In 2004, bin Mahfouz won a default judgment in English courts against Rachel Ehrenfeld, author of Funding Evil: How Terrorism is Financed – and How to Stop it. Ehrenfeld wrote and published the book in the United States, but because it was available for sale through Internet retailers in England, the court awarded bin Mahfouz unspecified damages, enjoined publication, and declared the book’s allegation to be false. Like Burr and Collins, Ehrenfeld linked bin Mahfouz to organizations that funnel money to terrorist groups.
Rather than fight the lawsuit in England, Ehrenfeld accepted the default judgment and filed suit Dec. 8, 2004 in U.S. District Court in New York seeking a declaratory judgment. She argued the English judgment was unenforceable in the United States because the book was published in the United States, and the claims would have failed under U.S. law.
After nearly three years of procedural wrangling, no U.S. court has reached the merits of Ehrenfeld’s case. The 2nd Circuit U.S. Court of Appeals ruled June 8 in Ehrenfeld v. bin Mahfouz, 489 F.3d 542 (2d Cir. 2007), that jurisdiction turns on a novel question of state law: whether New York’s long-arm statute allows personal jurisdiction over a defendant whose only contacts with the New York are his efforts to enforce an English libel judgment, not federal law.
The 2nd Circuit held that New York’s Court of Appeals, the state’s highest court, should determine the state law question before federal courts reach any constitutional issues. Under federal law, if a state court may exercise personal jurisdiction over a defendant, so can a federal court sitting in that state so long as it does not violate the defendant’s due process rights.
The state court accepted the question from the federal court on June 28, 2007, but as the Bulletin went to press, had not yet ruled. If the state high court finds personal jurisdiction over bin Mahfouz, the case would return to the federal district court in New York for a ruling on whether the U.S. Constitution allows for personal jurisdiction over bin Mahfouz, and if it does, whether the First Amendment bars enforcement of English libel judgments in the United States.
The English suits filed by bin Mahfouz have garnered considerable attention in the popular press and raised concerns about the propensity of English courts to sanction American speech. The Weekly Standard reported on Aug. 20, 2007 that the lawsuits could prompt American publishers to stop selling certain titles on the Internet in order to avoid English jurisdiction.
Advance Publications, Amazon.com, the American Society of Newspaper Editors and numerous other publishers and booksellers concerned about Ehrenfeld’s lawsuit filed an amicus brief urging the court to reach the merits of her case. The amici argued that enforcement of foreign libel judgments in the United States would chill protected speech and have “potentially devastating implications for the crucial spread of information and ideas in the public interest.”
Two professors at Emory University argued American courts should not allow wealthy businessmen to avoid the First Amendment by enforcing foreign libel judgments in an October 11 International Herald Tribune article. “American courts and publishers must take steps to preserve the unique protections American authors and journalists treasure. If they do not, ultimately it is readers who will be deprived of information and ideas,” Michael J. Broyde and Deborah E. Lipstadt wrote.
For his part, bin Mahfouz has vowed to continue the fight to “clear his family’s name.” A statement on his Web site www.binmahfouz.info reads: “The [b]in 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.”
- Michael Schoepf, Silha Research Assistant