Britain and the US are not shoulder to shoulder over defamation

When it comes to libel, the US disagrees with the high court - and one American author is hoping to take advantage of it

English libel law itself could face scrutiny in a US court, in a case brought by a US author in New York.

Rachel Ehrenfeld's Funding Evil: How Terrorism is Financed - and How to Stop It was published in 2003, and alleged that Saudi businessman Sheikh Kalid bin Mahfouz, among others, financed terrorism, a serious defamatory allegation. The book was published in the US, but 23 copies were made available for sale in the UK.

In 2004, Mahfouz won a default defamation claim against Ehrenfeld in the high court from the libel judge Mr Justice Eady. Ehrenfeld is seeking to resist the enforcement in New York of that English libel judgment.

In the past, US courts have refused to implement libel judgments obtained in England. The high court in England has been a popular venue for libel claimants - and English judges have been obliging in hearing cases not obviously related to this jurisdiction, including actions brought against US-based defendants. In 2000, for example, the House of Lords allowed a claim by Russian businessman Boris Berezovsky (at the time still resident in Russia) against the US Forbes magazine.

One crucial issue is often whether there is significant circulation of the material in question within the UK. With information posted on the internet essentially available everywhere immediately - and English law taking the view that material is published where it is read - the propensity for material to be actionable in England is all the greater.

But though it may be possible to bring a claim in libel in the English court against a foreign defendant and obtain judgment and an award of damages, if the defendant has no assets within the jurisdiction (such as a bank account or a house), that award can be fulfilled only if it can be enforced where the defendant does have assets. That is almost invariably in his or her home jurisdiction.

Sheikh bin Mahfouz, who has always vehemently denied the allegations in Ehrenfeld's book, chose to sue her not in the US where the libel laws favour the defendant but in London, where the libel laws are notoriously tilted in favour of the claimant.

In response, Ehrenfeld (who had no assets in the UK) decided not to contest the claim - allowing Sheikh bin Mahfouz quickly to obtain judgment from the English court and an award of £30,000 in damages - but instead elected to bring an action against Mahfouz in New York, hoping for a declaration that the claim would not succeed if it were brought within the jurisdiction of the New York court, and that the judgment from the English court was unenforceable in the US.

If Ehrenfeld's action is successful, it will not only insulate her from the effects of the English libel award, but it might also constitute an effective retort to the implicit criticism of her from the English judgment and undermine the vindication Mahfouz obtained from it.

Will it work? In the past, the US judiciary has taken a dim view of the law of defamation in the UK. For example, in 1995 Vladimir Telnikoff, a Soviet-born writer living in Israel, sought to enforce in a court in Maryland in the US a libel award obtained in England against Vladimir Matusevitch, another former Soviet writer.

Courts in one country usually enforce judgments granted by courts in another under a rather homely principle known as "comity", that is the mutual respect to be accorded between judicial authorities. However, in considering the case, the Maryland court of appeals undertook a review of the law of defamation in the UK from the oppressive censorship of the Star Chamber under the reign of Henry VIII to the present day - and essentially decided that little had changed.

For this reason, the court decided that enforcement of the English libel award would be repugnant and contrary to public policy in Maryland, and refused to allow Mr Telnikoff's claim.

Although Dr Ehrenfeld may well succeed in her claim, her hopes that this might inspire a significant change in the English law are probably overly optimistic. The British media have long battled for more lenient libel laws and have already achieved a degree of success with the so-called "Reynolds defence". This confers protection to a defamatory publication which is in the public interest and has been produced as a result of responsible journalism, even if the defendant media organisation cannot prove that the allegations in question are true. This still falls short of the equivalent defence in the US which, in light of the right to free speech under the first amendment of the US constitution, is more generous to the media. But the defence represents the settled view of the judiciary and there is unlikely to be any significant movement in the foreseeable future.

Dan Tench is a media partner at Olswang
Originally published in the UK Guardian