New York has moved to protect local media from England’s ‘asphyxiating’ defamation laws

The Libel Terrorism Protection Act is the formal ‘short title’ of legislation recently passed in the State of New York. Its purpose, in the words of an accompanying note, is to protect ‘New York-based publishers and media outlets from local enforcement of foreign defamation judgments designed to squelch their freedom of expression’.

They certainly don’t mince their words in the New York State Assembly. The act was prompted, according to the note, by ‘England’s asphyxiating defamation laws’. Indeed, parts of the note – which I shall not repeat – may themselves be defamatory under English law.

As the Gazette reported last week, there are now moves to extend the New York law across the United States. Federal Bills, sponsored jointly by Republicans and Democrats, have been introduced in the US Senate and the House of Representatives. So what have the Americans got against our libel laws?

Rory Lancman, the New York Assembly member who promoted the act, came to London last week to address a seminar on ‘libel tourism’ arranged by the think-tank Policy Exchange. As he explained, the story began four years ago when an extremely wealthy Saudi businessman called Khalid Bin Mahfouz launched libel proceedings in London against Dr Rachel Ehrenfeld, author of a book called Funding Evil, How Terrorism is Financed – And How to Stop it.

The book makes ‘allegations of the most serious and defamatory kind’ about Bin Mahfouz and two of his sons, according to a summary of the case approved by Mr Justice Eady. ‘It alleges that the Bin Mahfouz family is one of the main sponsors of al-Qaeda and other terrorist organisations’, the summary continues. The book also alleges that the National Commercial Bank of Saudi Arabia, which was owned by the Bin Mahfouz family, ‘was used as a conduit for financing al-Qaeda’.

Ehrenfeld and her publishers took no part in the libel proceedings and the claimants were granted judgment in default. The Bin Mahfouz family applied for summary disposal of the proceedings under a special procedure in the Defamation Act 1996. Again, the author and publisher did not appear.

Even so, Mr Justice Eady examined some of the assertions Ehrenfeld had made elsewhere, concluding that at one point she had relied on an article whose author subsequently admitted that it had been ‘completely false’ and should never have been published. Ruling in May 2005, the High Court concluded that the allegations made in the book about Bin Mahfouz and his sons were defamatory and false.

Perhaps Ehrenfeld’s strongest argument is that her book was not ‘published’, as such, in England and Wales. But that no longer seems to be a defence. Inevitably, a handful of copies were sold within the jurisdiction by on-line retailers such as Amazon. In addition, the first chapter of her book could be read for a month on a US website ­that attracted a significant number of UK visitors. And that was enough. Mr Justice Eady dismissed any suggestion that the claimants had been ‘forum-shopping’, referring to their significant connections with England. The author and her publishers were ordered to pay each of the three claimants £10,000 in damages plus their costs, with an interim payment of £30,000. That left Ehrenfeld facing a total bill of more than £100,000.

Meanwhile, she had launched proceedings against Bin Mahfouz in New York – seeking declarations that the English default judgment could not be enforced in the US and that the allegations against him were not actionable under US law. That action failed for lack of jurisdiction.

Hence the Libel Terrorism Protection Act, which now gives the New York courts jurisdiction over anyone who obtains a defamation judgment abroad in respect of material published by a New Yorker in New York. The act goes on to say that a defamation judgment granted by a court abroad need not be recognised in New York unless the foreign law provides ‘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’.

This does not help Ehrenfeld, who still faces enforcement action if she ever comes to Britain. And it may not be much of a problem for Bin Mahfouz, since he was not seeking to enforce his judgment in the New York courts anyway. But he is not left entirely powerless in the US. A year ago, Cambridge University Press agreed to pulp all unsold copies of a book called Alms for Jihad because the book contained ‘serious and defamatory allegations’ about Bin Mahfouz and his family. Allegations of ‘support for terrorism’ were ‘entirely and manifestly false’, the publishers said.

As well as apologising and paying ‘substantial damages’ to charity, Cambridge accepted that ‘the entire Bin Mahfouz family categorically and unreservedly condemns terrorism in all its manifestations’.

A conference in New York arranged by The New Criterion magazine in April was told that the price of the book rose ‘astronomically’ when Cambridge withdrew it from sale and asked libraries worldwide to take it off their shelves. The American Library Association subsequently advised its members that they could ignore this request in the absence of a US court order.

Despite recent developments in English libel law, it is still much easier for public figures to win defamation cases in England than in the US. Whether that’s a good thing or not depends where you stand: an Israeli academic, represented by the Jerusalem-based English solicitor Trevor Asserson, recently threatened to bring proceedings in London against a journal published in New York over a review by a US professor of Arab studies accusing the Israeli of plagiarism. The journal apologised and paid damages.

Reporters and critics alike must take the greatest of care when they write about people who may sue – as I hope you can see from the article you have just read.