New York enacts Libel Terrorism Protection Act

Gov. David Paterson signed the Libel Terrorism Protection Act on Thursday, helping New York set the pace in protecting American journalists from foreign libel verdicts.

The bill was first proposed in response to a ruling from New York’s highest court that the state could not exercise jurisdiction over Khalid Salim a Bin Mahfouz, a Saudi Arabian businessman and banker who obtained a default judgment in a defamation suit against American author Rachel Ehrenfeld in a British court. Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002.

The law combats such international forum shopping on two fronts. It prevents litigants from enforcing foreign libel judgments in the state unless a New York court finds that the jurisdiction issuing the judgment provides the same free speech protections guaranteed under the U.S. and New York state constitutions.  Secondly, it grants New York courts jurisdiction over litigants who obtain a foreign defamation judgment against New York state citizens, allowing Ehrenfeld and others like her to petition a state court for a declaratory judgment rendering the foreign decision unenforceable on New York soil.

In signing the bill, Paterson recognized that New York has blazed a trail that other states and the federal government must follow. 

“Although New York State has now done all it can to protect our authors while they live in New York, they remain vulnerable if they move to other states, or if they have assets in other states,” Paterson said in a statement. “We really need Congress and the President to work together and enact federal legislation that will protect authors throughout the country against the threat of foreign libel judgments.”

Picking up on the tone set by his state, U.S. Rep. Peter King (R-N.Y.) took the first step towards establishing similar protections on a national scale when he introduced the Freedom of Speech Protection Act (H.R. 5814), in the House of Representatives.

Reporters Committee for the Freedom of the Press

New York to Protect Writers from Foreign Libel Suits

New York Governor David Paterson signed into law yesterday the “Libel Terrorism Protection Act,” according to the New York Sun. This bill, for which Harvey and his colleague Samuel A. Abady have lobbied in the Boston Globe and the New York Post, is the direct result of the recent censorship of New York journalist and counterterrorism expert Rachel Ehrenfeld. In her book, Funding Evil, Ehrenfeld named Saudi billionaire Khalid bin Mahfouz as a leading financier of Islamic terrorism based on an exhaustive review of government documents. While Ehrenfeld’s scholarship, particularly her characterizations of Muslim charities, are controversial, there’s no doubt that her attack on bin Mahfouz is fully protected speech and does not even approach the threshold set for libel by New York Times v. Sullivan. Nonetheless, bin Mahfouz has been able to effectively muzzle Ehrenfeld by suing her in England, where 23 copies of her book were ordered online and where libel laws are much more plaintiff-friendly. Like most journalists, Ehrenfeld could not afford to battle a litigious billionaire in a foreign country. She had no choice but to accept a declaratory judgment that she pay $225,000 in damages and pulp remaining copies of Funding Evil. The “Libel Terrorism Protect Act” now allows her to challenge the British court’s judgment on American soil, where she will enjoy the full protections of the First Amendment. Let’s hope that civil libertarian groups around the country understand the importance of rallying their state legislatures to pass similar legislation

The Pheonix

Conference Laments 'Libel Tourism' By Islamists

By: Bradley Vasoli, The Bulletin

New York - Security and legal experts admonished the Western world that Islamist terrorists take a heavy toll not only in lives but also in speech rights. on Thursday at Free Speech In The Age of Jihad conference held at the Princeton Club in New York City.

Six and a half years after Sept. 11, 2001, a phenomenon has taken hold in Europe, Canada and, to a lesser but potent extent, the United States that experts call "libel tourism." It refers to reputed supporters of terrorist networks like al-Qaida or Hezbollah filing civil complaints against their journalistic critics in a nation that defines "libel" very broadly. Because many books and periodicals are sold internationally, this presents a legal snag that is difficult for many authors to avoid.

One such apparent target of libel tourism is Rachel Ehrenfeld, director of the American Center for Democracy and author of Funding Evil: How Terrorism Is Financed and How to Stop It (Bonus Books, 320 pages). Saudi native Khalid bin Mahfouz successfully sued her for libel in England when her book, which alleges he has helped to fund al-Qaida, sold a few copies in Great Britain through Internet vendors. The litigation came as a surprise to Ms. Ehrenfeld, who had only made an effort to market the book in the United States.

To Stanley Kurtz, a senior fellow at the D.C.-based Ethics and Public Policy Center, Mr. bin Mahfouz's decision to target the author in Britain owed to a simple realization: He didn't stand a chance in a United States court. But publishing houses now resist picking up Ms. Ehrenfeld's projects for fear that their doing so will entice lawsuits from her writings' subjects.
"Bin Mafouz has effectively paralyzed an entire subfield of American authors," Mr. Kurtz said.

Ms. Ehrenfeld has been ordered to pay a judgment of roughly $20,000 and over $200,000 in legal bills incurred by the litigant. She continues to seek avenues to fight the judgment of British Judge David Eady. Barring her success, she runs the risk of being arrested should she travel to Great Britain.

"[Supporters of terror networks] know how to silence us," she said. "And we need to do something in order to counter it."
On March 31, the New York state legislature took action of its own to provide partial protection to those like Ms. Ehrenfeld whose works have been subject to the litigiousness of their opponents. It unanimously passed the Libel Terrorism Protection Act, which specifies that New York does not have the onus of enforcing a defamation judgment issued in a foreign country unless the law provides for free-speech protections equivalent to those afforded by U.S. law.

The conference in New York City was sponsored by the Foundation for Defense of Democracies and the New Criterion magazine.

Bradley Vasoli can be reached at bvasoli@thebulletin.us.


©The Evening Bulletin 2008

Saudi wields British law against U.S. author

Billionaire leverages harsher libel rules to suppress unflattering book

By James Oliphant Tribune Correspondent, March 17, 2008


NEW YORK - Rachel Ehrenfeld writes about terrorism for a living. But now she is the one who feels targeted.

Her modest midtown Manhattan apartment is filled to the ceiling with books, most having to do with global terror networks and Mideast conflict. Sitting at her desk, she gazes out at the Hudson River. She says she has a hard time placing her work. She says she has been blacklisted. If she travels to England, she fears she will be arrested.

"I feel like a leper," she said.

Ehrenfeld faces a $225,000 judgment obtained in a British court in a libel suit brought by a former banker to the Saudi royal family, billionaire Khalid bin Mahfouz. "That's the Damocles sword effect. He's holding it above my head to intimidate me and others," she said.

The source of the trouble is Ehrenfeld's book, "Funding Evil: How Terrorism is Financed and How to Stop It," published by Bonus Books. In it, she named bin Mahfouz as a financier of Osama bin Laden and Al Qaeda. Bin Mahfouz responded by suing Ehrenfeld -- not in the U.S., but in England, which is friendlier to libel claims.

Bin Mahfouz maintains Ehrenfeld's statements about him are false and reckless and says she is perpetuating myths that have followed him around the globe, endangering his business affairs.

It isn't the first time bin Mahfouz has been tied to bin Laden -- or the first time he has responded by filing a lawsuit. On his personal Web site, he lists the lawsuits he has filed and corrections and apologies he has obtained from some of the leading newspapers in the world.

Ehrenfeld calls bin Mahfouz a "libel tourist" who has used British law to try to halt her investigative work. She has the support in written court filings of Amazon.com, PEN American Center, the American Society of Newspaper Editors and others who worry that litigants such as bin Mahfouz have a chilling effect on American publishers who sell books globally.

The New York Legislature seems to agree. The state Senate last month passed a bill to enable New York writers and publishers to block enforcement of any British libel judgment. The state Assembly is taking up the legislation.

In court papers, bin Mahfouz's lawyers say the Saudi financier never intended to get at Ehrenfeld's assets in New York and would drop his claims if she would apologize and destroy unsold copies of the book. But when asked by a federal appeals court to waive his right to enforce the judgment in the U.S., bin Mahfouz declined. His lawyers insist that Ehrenfeld is the one who has stoked the controversy to promote book sales.

No 1st Amendment here

Turning to British courts is not new for aggrieved international plaintiffs. England has nothing like a 1st Amendment, which provides constitutional protection for writers in the U.S. Under British law, an author ay have to prove a statement is true.

American actors such as Cameron Diaz and Kate Hudson have used British courts to sue a tabloid. In the wake of the Sept. 11 attacks, wealthy Saudis have chosen Britain as the forum to defend themselves from the writings of U.S.-based authors who have tried to penetrate the opaque realm of terror finance.

Craig Unger, who wrote the best seller "House of Bush, House of Saud," said his publisher, Random House, decided not to publish the book in Britain due to fears of a libel action. It was eventually distributed by another publisher. "I was disappointed with [Random House's] decision, but clearly U.K. libel laws are far more onerous for publishers than are American laws," Unger said.

Bin Mahfouz is one of the wealthiest people in the world, with a fortune estimated in the billions. His father, Salim, built the National Commercial Bank of Saudi Arabia and became banker to the Saudi royal family, a position Khalid inherited. (He has since sold his shares.)

Khalid bin Mahfouz was also an outside director of Bank of Credit and Commerce International, which collapsed in the early 1990s amid allegations of money laundering, fraud, bribery and supporting terrorism. Bin Mahfouz denied any involvement in the bank's day-to-day activities but ended up paying a civil fine in New York of $225 million.

That is the backdrop for attempts by Ehrenfeld and others to tie bin Mahfouz to bin Laden, with Ehrenfeld writing that the Saudi bank he oversaw diverted money to an Islamic charity that funneled money to Al Qaeda.

"Mr. bin Mahfouz has publicly condemned terrorism and vehemently denies that he or his former bank have ever provided financial support for terrorism," said his lawyer in the United States, Timothy Finn.

Bin Mahfouz is a bit player in Ehrenfeld's book, mentioned only on a handful of pages. But that didn't keep him from suing her in London in 2004, saying his reputation in Britain had been damaged. "I saw [the court papers] and thought, 'Bin Mahfouz chose the wrong victim,'" Ehrenfeld said.

While Ehrenfeld may have thought her book safe from the reach of British courts, she was wrong. Because it had sold two dozen copies in England via the Internet, and because some portions had been excerpted on a Web site, a British judge ruled that Ehrenfeld must defend herself across the Atlantic.

Ehrenfeld decided not to appear in England to contest the lawsuit, preferring instead to fight back in other ways. The second edition of her book contained the tag line "The book the Saudis don't want you to read" and a new introduction referring to bin Mahfouz's lawsuit.

This did not pass unnoticed by the British court overseeing bin Mahfouz's case.

Costly judgment

"It appears, therefore, that the defendants are trying to cash in on the fact that libel proceedings have been brought against them in this jurisdiction without being prepared to defend them on the merits," the presiding judge wrote in 2005. The court hit Ehrenfeld with a judgment of close to $20,000 and an order to pay bin Mahfouz's legal bills, which ranged beyond $200,000. It also found that Ehrenfeld's allegations toward bin Mahfouz were false as a matter of law.

Then Ehrenfeld again went on the offensive. She filed a lawsuit in federal court seeking an order to prevent bin Mahfouz from enforcing his British judgment in the U.S. Her cause was supported in a brief filed by a host of organizations.

But the federal court decided it didn't have sufficient jurisdiction over a foreign national such as bin Mahfouz. An appeals court asked bin Mahfouz's lawyers whether they would promise not to enforce the judgment; they declined.

And last month a New York court ruled that state courts could not block bin Mahfouz. Ehrenfeld was surprised by the outcome, which led to the effort in the state Legislature to pass a bill to protect her and other writers from foreign judgments.

"She is the example right now," said state Sen. Dean Skelos, who co-sponsored the bill.

The bill passed the state Senate unanimously but has run into trouble in the Assembly. An advisory committee to the state court administrator opposes the bill, saying it may be unconstitutional.

So Ehrenfeld sits in her apartment and awaits news from Albany.

And if she can force bin Mahfouz into an American court, she will seek the answers she has been chasing for years. "If I get this law, I will ask the court to depose him," she said. "This is really why I started this whole thing."

----------

joliphant@tribune.com

The worst case scenario

British libel law means our press is vulnerable and the wealthy are shielded from criticism
by Geoffrey Wheatcroft, The Guardian, Thursday February 28 2008

For years journalists have grumbled about the libel laws and no one has listened, but when a distant legislature passes a law of its own to counteract the intolerable effects of the British courts then it's time to take notice. The most startling recent legal story comes not from the high court but from Albany, where the New York state legislature has introduced the starkly named Libel Terrorism Prevention Act, intended specifically to guard writers and publishers outside British jurisdiction from the terrors of English libel law.

In recent decades, "libel tourism" has become a lucrative trade for London lawyers. Foreign celebrities turn up to sue British papers or US magazines with insignificant British circulations. The late Telly Savalas was one of the first, winning an action here that he couldn't even have begun in the US. Roman Polanski was allowed to give evidence from France to London by video link when he sued Vanity Fair, a New York magazine. Since he's wanted in California, he couldn't set foot in London for fear of being extradited.

But what has brought this to a head are several even more grotesque cases. The powerful Saudi businessman Sheikh Kalid bin Mahfouz sued over a book by two Americans which alleged he was associated with the funding of Islamic militants: hence the lurid name of the New York law. Only a few copies were sold in the UK, but damages were paid and the remaining copies were pulped.

Our libel law has always been heavily weighted in favour of the plaintiff. Unlike the defendant in a criminal case or other civil suits - or in a US libel action - he is assumed to be in the wrong, and must prove that "the words complained of" are true. Under "no win, no fee", the plaintiff is gambling someone else's money, while the defendant is on a hiding to nothing. "True as to fact or fair as to comment" are the classic defences, but fair comment is subjective, and any attempt to justify or prove truth can be held to aggravate the gravity of the libel. And a defendant is at the mercy of the caprice of juries and the malice of judges.

Many years ago, after Evelyn Waugh had won large damages from the Daily Express, he shrewdly told a friend that the millions of readers of the Express secretly detested the paper and were glad of any chance to punish it. That helps explain the half-million damages awarded against a tabloid by Jeffrey Archer - one of a long line who have won actions by plain lying.

Following the case brought by Albert Reynolds, the former Irish prime minister, there is now a partial defence of public interest. But our media have nothing like the protection that the US press has been afforded since the New York Times won the Sullivan case in 1964. Any American public figure bringing an action now has to prove that what was written was not only untrue but published maliciously and recklessly.

In Britain, we now have the worst of all worlds. Obscure people are hounded by the gutter press, but the libel laws shield "malefactors of great wealth" from criticism and make our courts a playground for the international rich. The Reynolds rule, like so many recent checks on an oppressive state, came from judges rather than parliament, but it really is time for comprehensive legislation, a new Fox's Libel Act.

This would provide a statutory defence of public interest. It would remove the burden of proof from the defendant. It would end the nonsense of a person from one foreign country suing in London a person from another over something published in a third country. And better still, it would assimilate libel to slander, where the plaintiff must show actual material damage suffered.

The only trouble is that laws have to be passed by parliament. And there are few people keener on using and abusing the libel courts than politicians.

wheaty@compuserve.com

New York passes law against 'libel tourists'

Times Online Op-Ed

The state will protect authors against foreign libel judgments after a US journalist was sued by a Saudi businessman in London.  Politicians in New York have acted to protect the state’s writers and publishers from so-called libel tourism after an English libel judgment went against an American author.

The Libel Terrorism Protection Act was given a unanimous passage in the state Senate in Albany, the New York Law Journal reported. The new bill was introduced after the New York Court of Appeals ruled in December that the state’s laws did not protect Rachel Ehrenfeld, an American author, from a possible bid by a Saudi Arabian businessman to enforce a summary judgment issued by the High Court in London.

The bill is intended to amend New York’s so-called "long-arm statute" in order to give the state’s courts jurisdiction over a foreign libel claimant who won a judgment against an author or publisher with sufficient physical or financial ties to the state.

It would allow New York’s courts to declare that a foreign judgment was unenforceable if the courts decided that the libel laws in foreign jurisdictions did not protect freedom of speech and the press to the same extent as the laws in New York and the US.
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The New York Law Journal reported that the Bill had made “unusually swift” progress since being introduced into the legislature and said new legislation usually took several months, or even years, to reach the floor of the Assembly or Senate.

Dr Ehrenfeld claimed her book, Funding Evil, in which she makes a series of allegations about the charitable activities of wealthy Saudi businessman Sheikh Khalid bin Mahfouz, was protected under the freedom of speech section of the US constitution.

But in a 17-page ruling by Judge Ciparick in December, the New York Court of Appeals in Albany ruled that it did not have jurisdiction over Mr Mahfouz as they found he had not carried out any business in the state.

The Sheikh has always vehemently denied any link with terrorism, or terrorist support or funding, and claimed that the book was defamatory in suggesting that he supported al-Qaeda and terrorism either directly or indirectly.

In January, Democratic Assemblyman Rory Lancman and Republican Senator Dean Skelos introduced the “Libel Terrorism Protection Act” to remedy what they see as a deficiency in the law.

Mr Lancman said: “This legislation will give New York’s journalists, authors and press the protection and tools they need to continue to fearlessly expose the truth about terrorism and its enablers, and to maintain New York’s place as the free speech capitol of the world.”

Mr Skelos added: “The ability to expose the truth about international terrorist activities is critically-important to the global war on terror.

“These foreign courts are trampling the First Amendment protections guaranteed to American writers and journalists by our Constitution and this legislation will ensure that they cannot infringe upon our freedom.”

Senator Martin Golden, who supports the legislation, said: “Under the Libel Terrorism Protection Act, writers and journalists would have foreign defamation suits declared unenforceable in New York unless the foreign law provides the same free speech protections guaranteed under our Constitution.

“In effect, we are giving New Yorkers a chance to have their fair day in court.”

In court papers filed last year, Dr Ehrenfeld described Mr Mahfouz as a “serial libel tourist”.

Her book was never published in the UK but 23 copies entered England.

Mr Mahfouz, who denies all the allegations in the book about the funding of terrorist organisations, turned to English law and brought a successful libel action against her three years ago.

Mr Mahfouz has had a series of victories in English courts, and in August last year, the Cambridge University Press withdrew all copies of Alms for Jihad, a book which took a similar line to Dr Ehrenfeld.

But some American librarians have refused the publishers’ request to withdraw the book from their shelves and surviving copies are for sale for hundreds of pounds on the internet.

NY court: Saudi billionaire can pursue British claims in the U.S.

By LARRY NEUMEISTER Associated Press Writer,  NewsDay.com March 3, 2008

NEW YORK - The author of a book about financing terrorism can't prevent a Saudi billionaire from trying to enforce a London libel verdict in the United States, a federal appeals court said Monday.

The 2nd U.S. Circuit Court of Appeals rejected Manhattan author Rachel Ehrenfeld's lawsuit to stop the billionaire, Khalid Salim A. Bin Mahfouz, from trying to collect on a default judgment obtained against Ehrenfeld in London.

Ehrenfeld's attorney, Daniel Kornstein, said he was disappointed by the ruling.

"This is a matter that's not only about Rachel Ehrenfeld. It's about New York writers and publishers generally and their ability to investigate and speak their minds on matter of urgent public interest," he said.

Stephen J. Brogan, a lawyer for Bin Mahfouz, did not immediately return a phone message requesting comment.

The Saudi businessman has made claims against authors and journalists more than two dozen times over writings on terrorism and those who fund it, including Ehrenfeld's 2003 book, "Funding Evil: How Terrorism is Financed _ and How to Stop It."

Ehrenfeld wrote that Bin Mahfouz and his family provided financial support to al-Qaida and other "Islamist terror groups."

A 2005 ruling by London's High Court of Justice ordered Ehrenfeld to pay Bin Mahfouz $225,000, declare her writings about him to be false, destroy existing copies of the book and apologize.

Ehrenfeld had then asked a Manhattan court to declare that the London judgment was unenforceable in the United States. A lower court previously said the matter was out of its jurisdiction.

Bin Mahfouz has not tried to collect on the London judgment in the United States.

New York state has a so-called "long-arm" law, which establishes jurisdiction for almost anyone who does business in New York. But New York's Court of Appeals previously found that it does not apply to Bin Mahfouz's case.

The 2nd Circuit also said Monday that Ehrenfeld had failed to asked the lower court to decide whether the First Amendment entitled her to a ruling in her favor and thus could not argue for such a ruling from the appeals court.

Two state lawmakers are trying to pass legislation that would protect authors and journalists who write about terrorism from limitations imposed as a result of foreign libel lawsuits. The court refused to delay its decision until that legislative effort is concluded.