New York Governor David Paterson signed a bill April 30, 2008 that grants statewide protection to writers and publishers convicted of libel in foreign courts.
The law, officially titled the Libel Terrorism Protection Act , effectively overruled a December 2007 New York Court of Appeals ruling that author Rachel Ehrenfeld could not enjoin enforcement of a $225,000 British libel judgment entered against her in 2004, according to a summary of the bill published by the New York State Assembly.
Ehrenfeld was sued in England by billionaire Saudi Arabian businessman Khalid bin Mahfouz for allegations made in her 2003 book “Funding Evil: How Terrorism is Financed – and How to Stop It,” that accused bin Mahfouz of backing organizations with ties to terrorism. (See “New York High Court Rules in Libel Tourism Case” in the Winter 2008 Silha Bulletin).
British libel standards place the burden of proof on the defendant to prove that the allegedly libelous statements are actually true, rather than on the plaintiff to prove the statements’ falsity. Ehrenfeld did not contest bin Mahfouz’s libel claim and default judgment was entered against her.
Popularly dubbed “Rachel’s Law,” the New York law renders foreign judgments unenforceable in the state of New York unless the applicable foreign laws provide the same free speech protections as those guaranteed under the First Amendment. The bill received unanimous support from both the New York State Assembly and Senate.
The key provisions of the law amended New York’s statute pertaining to foreign country money judgments, N.Y. C.P.L.R. 5304, to read, “A foreign country judgment is not conclusive 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.”
The statute also extended personal jurisdiction to 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 is a person or entity amenable to jurisdiction in New York … for the purposes of rendering declaratory relief with respect to that person’s liability for the judgment,” codified at N.Y. C.P.L.R. 302. Typically, personal jurisdiction in a state court is limited to defendants whose contact with the state is sufficient to reasonably expect to be sued there.
In an official press release that accompanied the signing of the bill, Paterson said, “New Yorkers must be able to speak out on issues of public concern without living in fear that they will be sued outside the United States under legal standards inconsistent with our First Amendment rights. This legislation will help ensure the freedoms enjoyed by New York authors.”
In the same press release, bill sponsor Sen. Dean Skelos (R-Rockville Centre) said, “The truth is a critically-important component of the War on Terror. American authors, like Dr. Ehrenfeld, who expose terrorist networks and their financiers, should not be subject to intimidation and lawsuits in foreign courts designed to circumvent our First Amendment rights.”
A January 20 story in the International Herald Tribune recapped several recent episodes of “libel tourism” taking place in British courts, in addition to the case against Ehrenfeld. For example, an Icelandic investment bank has sued Danish tabloid Ekstra Baladet for libel in London because the publication’s online edition can be accessed in England.
The story also mentioned a previous case brought by bin Mahfouz which resulted in British publisher Cambridge University Press agreeing to destroy all remaining copies of the book “Alms for Jihad: Charity and Terrorism in the Islamic World,” and to write to 100 libraries around the world seeking to add an explanatory sheet to archived books.
According the Herald Tribune, bin Mahfouz alone has filed more than two dozen lawsuits against writers and authors, and his advisers have created a special Web site tracking the law suits and featuring apologies issued by writers and publishers. The Web site is available at http://www.binmahfouz.info/faqs_4.html.
In an April 30 Wall Street Journal op-ed, prominent First Amendment attorney and 2005 Silha Lecturer Floyd Abrams criticized the long shadow cast by the recent British decisions. “English libel law is increasingly being used to limit public debate about terrorism,” Abrams wrote.
Abrams emphasized the need for increased statutory protection of American authors. “England should be free to choose its own libel law. But so should we. It is not too much to ask that American law should protect our people when they speak in precisely the ‘uninhibited, robust and wide-open’ manner that the First Amendment was drafted to protect.”
Abrams noted that American and British law differ in protecting freedom of speech, citing the U.S. Supreme Court decision Bridges v. California, 314 U.S. 252 (1941). In Bridges, the court ruled in favor of two California newspapers that had printed strongly worded editorials urging specific outcomes in then-undecided court cases. The lower courts found the newspapers guilty of contempt of court, but the Supreme Court reversed.
The state had argued that the convictions should be upheld because “the power of judges to punish by contempt out-of-court publications tending to obstruct the orderly and fair administration of justice in a pending case was deeply rooted in English common law.” Justice Hugo Black, writing for the majority, reversed, stating that, “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.”
The recent upsurge in foreign libel decisions, especially in England, has other American commentators concerned. In a June 25 article in The Chronicle of Higher Education, Jonathan Bloom, a lawyer at the firm Weil, Gotshal & Manges in New York said that some of the damage has already been done. “I have no doubt there have been many other examples of authors who have not written books or articles or even undertaken research in this area because they didn’t want to wind up on the receiving end of a lawsuit,” he said. “There’s no worldwide security issue that affects us more than the funding of terrorism. The fact that libel laws are being used to chill unvarnished academic writing on this subject is pretty frightening.”
U.S. courts have previously ruled, in a case involving a French lawsuit against Yahoo!, that speech by U.S. companies could not be regulated by countries that have more restrictive laws on freedom of expression. (See “Recent Developments in Internet Law: Court Clears Yahoo!” in the Winter 2003 issue of the Silha Bulletin.)
In May, Sens. Joseph Lieberman, (I-Conn.) and Arlen Specter (R-Pa,), along with Rep. Peter King, (R-N.Y.), introduced federal legislation that would extend similar libel protections across all 50 states. Officially entitled the Free Speech Protection Act, the bill creates a federal cause of action and federal jurisdiction so that federal courts may determine whether statements are defamatory under United States law when a journalist, speaker, or academic is sued in a foreign court for speech or publication in the United States. The bill authorizes a court to issue an order barring enforcement of a foreign judgment and to award damages.
The House version of the bill, H.R. 5814, and the Senate version, S. 2977, are both presently in committee. The bill specifically provides a cause of action for “any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise disseminated in the United States … against any person who, or entity which, brought the foreign suit if the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law.”
The bill also allows the court to triple any damages and award court costs, including attorney fees, to plaintiffs who recover under the statute. Under the bill, an action may be commenced any time after the filing of the defamation lawsuit in a foreign country. It extends to any lawsuit, even those commenced before the enactment of the act.
“The freedom of American journalists should not be threatened by foreign courts that do not adhere to America’s principles of free speech,” Lieberman said in a statement released May 7 by his office. “Discovering the truth requires full and open debate.”
“Our journalists provide us with insight on issues that affect all Americans, such as war and terrorism,” King said in the same statement. “We cannot allow their voices to be silenced … American authors and journalists should be able to practice their First Amendment right without the fear of a lawsuit.”
– Jacob Parsley
Silha Research Assistant