In the wake of two recent highly publicized libel cases against American authors in the U.K., New York State legislators last week introduced a bill that would help protect authors from "libel tourist" cases in plaintiff-friendly foreign courts. Senate deputy majority leader Dean Skelos and assemblyman Rory Lancman announced legislation that they say will make it harder for "libel tourists" to threaten American authors and publishers in New York by bringing meritless defamation actions in overseas courts.
The proposed legislation would amend New York's code of civil practice to prohibit enforcement of a foreign libel judgment unless a New York court determines that it satisfies the free speech and press protections guaranteed by the U.S. and the New York State constitutions. The legislation would also amend New York's "long-arm" statute to allow courts, under certain circumstances, to exercise personal jurisdiction over nonresidents who win foreign libel judgments against New York residents in order to grant resident writers declaratory relief in those cases.
The legislation was introduced in response to a Dec. 20, 2007, ruling that New York courts lacked jurisdiction to hear American author Rachel Ehrenfeld's lawsuit seeking to have a British default libel judgment against her declared unenforceable in the U.S. Ehrenfeld, author of Funding Evil: How Terrorism Is Financed and How to Stop It (Bonus Books), was sued by Saudi billionaire Khalid bin Mahfouz in a London court under U.K. libel laws. In her book, Ehrenfeld identified bin Mahfouz as a financial supporter of terrorist organizations. Bin Mahfouz sued Ehrenfeld even though the book was never published in Great Britain and neither he nor Ehrenfeld resides there. Ehrenfeld refused to participate in the suit, but was nonetheless hit with a default judgment of $225,000 in damages and legal fees to bin Mahfouz, as well as a "declaration of falsity" against Funding Evil and a promise to destroy existing copies of the book, a demand for a public apology and an injunction against U.K. publication.
Ehrenfeld will not be subject to the U.K. ruling as long as she stays in the U.S. "Why doesn't [bin Mahfouz] sue me here? Because he doesn't have a chance here," she said. She will not travel to England because the judge there issued a ruling of contempt of court against her. But Ehrenfeld hopes the bill "will encourage others to write about the people who are funding terrorism without any fear of persecution in foreign lands."
Bin Mahfouz is infamous for silencing authors and journalists—he has sued or threatened suit in the U.K. 33 times against writers who linked him to terrorism—and his legal actions against Cambridge University Press's Alms for Jihad by J. Millard Burr and Robert O. Collins resulted in the press pulping its copies and putting the book out of print (the writers are reportedly near a deal to publish the book in the U.S.). The new bill, however, would extend writers protection beyond the realm of books just about terrorism. Judy Platt, who directs AAP's Freedom to Read program, said, "It's not really a terrorism issue. It is a broader First Amendment issue" and confirmed that the bill would apply to any work by a New York writer.
Although both Ehrenfeld and Platt said U.K. law has recently loosened slightly regarding libel issues, it is still far tougher than in the U.S. It is for just that reason that Andrew Morton's new Tom Cruise unauthorized bio carries a note on the back jacket from St. Martin's saying the book is not for sale in the U.K. or Ireland. "The laws in the U.K. and Ireland could make it difficult to defend there," said St. Martin's v-p. director of publicity, John Murphy.
Ehrenfeld hopes that libel law in the U.K. could be further reformed. "The new law in New York will help those in England who want to make the change in their law," Ehrenfeld said. She also said the new bill could create opportunities for English authors to publish in the U.S.