Court refuses to protect author from British libel verdict

New York’s highest court ruled against author Rachel Ehrenfeld yesterday, refusing to protect her from British libel laws which heavily favor plaintiffs in defamation suits.

Ehrenfeld sought a declaratory judgment from a federal district court in New York that Khalid Salim Bin Mahfouz, a Saudi Arabian billionaire who won an English defamation suit against her in 2005, could not prevail on his libel claim against her and that the English court’s judgment was unenforceable in the United States.

Before making any ruling though, the district court called on the state court to determine whether New York could establish jurisdiction over Mahfouz. Yesterday, the state court concluded that it did not, rejecting Ehrenfeld’s claim that Mahfouz purposefully availed himself of New York’s laws while conducting a “foreign litigation scheme designed to chill her speech.”

In her book, “Funding Evil – How Terrorism Is Financed and How to Stop It,” Ehrenfeld asserted that Mahfouz and his family provided financial support for Al Qaeda and other terrorist organizations. Mahfouz has made a habit of taking advantage of the plaintiff-friendly English court system, lodging more than two dozen suits over similar allegations from other sources.

Ehrenfeld refused to appear in the British court, and does not acknowledge the court’s jurisdiction over her given that she was a U.S. citizen and the book was published only in the United States and sold only in the United States. Mahfouz, in response, pointed to 23 copies of the book that had been purchased in England via the Internet and that a chapter of the book was available on ABC News’ Web site.

Because she refused to appear, the British court ultimately entered a default judgment against Ehrenfeld, awarding Mahfouz £30,000, enjoining future publication of the book in England, and requiring Ehrenfeld and her publisher to apologize to Mahfouz.

By refusing to take a stance on the issues, the court missed a great opportunity to stem the bleeding in the growing trend of “libel tourism.” With the growth of the Internet, more non-British nationals have hailed non-British speech into British courtrooms, simply because the rules favor claimants in that jurisdiction.

At the outset of her opinion writing for a unanimous panel, Judge Carmen Beauchamp Ciparick noted that “however pernicious the effect of [libel tourism] may be, our duty here is to determine whether defendant’s New York contacts establish a proper basis for jurisdiction.”

The problem is, though, that by refusing to find jurisdiction, the court is ultimately tying the American court system’s hands and preventing it from meeting the issue of libel tourism head on. Until a U.S. court steps up to unequivocally deny the legitimacy of such foreign libel rulings, plaintiffs will continue to use those foreign courts to skirt the protections provided by the First Amendment.