Long-Arming the Libel Tourist

Last week the New York Court of Appeals heard arguments in a case that pits freedom of speech against British libel law. Israeli-American criminologist Rachel Ehrenfeld is challenging a libel judgment against her obtained by Saudi billionaire Khalid bin Mahfouz, whom she identified in her 2003 book Funding Evil as a source of financial support for terrorism. Last June the U.S. Court of Appeals for the 2nd Circuit allowed her lawsuit to proceed, but the case hinges to some extent on issues of state law, one of which the New York Court of Appeals is now considering: whether New York's "long arm" statute can reach a defendant such as Bin Mahfouz who is outside the U.S.

Calling Bin Mahfouz to account before a U.S. court seems only fair, given his strategy in trying to shut Ehrenfeld up. Although her book was published in the U.S., Bin Mahfouz sued her in London to take advantage of England's pro-plaintiff libel rules, which he has used to intimidate other critics into silence. The excuse for suing Ehrenfeld in the U.K. was that people there (possibly cronies of Bin Mahfouz) had bought 23 copies of the book online. In 2005 a British judge issued a default judgment against Ehrenfeld, ordering her to apologize, pay Bin Mahfouz about $230,000, and destroy all copies of her book. Jared Lapidus, a fellow at the Moving Picture Institute ("Promoting Freedom Through Film"), has produced an eight-minute documentary about the case, which the prominent civil libertarian (and reason contributor) Harvey Silverglate calls "one of the most important First Amendment cases of the past 25 years." Although Lapidus gets a little distracted by how awful the Saudis are, the video does communicate the dangers of libel tourism pretty well.

I mentioned the Ehrenfeld case on Hit & Run last month. Silverglate considered the implications in a 2006 Boston Globe op-ed piece co-authored by Samuel Abady. Katherine Mangu-Ward interviewed Rob Pfaltzgraff, the Moving Picture Institute's executive director, in the October issue of reason.

Comments

Mad Max | November 19, 2007, 6:20pm | #

If someone tries in good faith to stay out of the UK and avoid its libel laws, then I think it's unfair for this Saudi guy to contrive some kind of jurisdictional link just to get into a UK court.

This isn't about the merits of UK libel law, but about stuff like forum con conveniens, and other international law/comparative law issues.

If someone deliberately publishes in the UK, this would be a different case.

Akira MacKeznie | November 19, 2007, 6:31pm | #

This is one of Scientology's favorite tactics against "suppressive persons" (i.e. critics of the cult): Have a the UK church sue for libel even if the comments were made in another country.

Sickening, really.

Elemenope | November 19, 2007, 6:32pm | #

Mad Max, I agree, and it's scary. This is one bad consequence of that otherwise effective principle of "laboratories of democracy", i.e. several governments deciding local law...in an international commerce environment, naturally as laws between jurisdictions differ, clients can go jurisdiction shopping to find favorable environments for their suits.

However, since international enforcement is lax, I find it a little hard to believe that a suit brought in British court against an American will have enough practical reach to collect judgment from the defendant. Sure, Britain's libel laws may be plaintiff friendly, but wouldn't seizing the assets of libelers in some other country be rather low on the international priority list? Aren't they too busy harassing drug merchants/traffickers and shipping pirates?

Fluffy | November 19, 2007, 6:48pm | #

What is obviously needed here is for some well-funded outfit to pick 1000 prominent residents of the UK and simultaneously launch frivolous lawsuits against them in scores of countries worldwide, so that when they are unable to respond you can get lots of default judgments entered.

JK | November 19, 2007, 6:53pm | #

It's more than just Ehrenfeld. Here are five books that Bin Mahfouz has had banned in the UK:

Five books on terrorism you aren’t allowed to read

Authors whose books on terrorism have been ‘erased from the map’ by English libel actions - that is, effectively banned in the UK - tell British readers what they’re missing out on.
by Various Authors

full at:

http://www.spiked-online.com/index.php?/site/reviewofbooks_article/4002/

Eric the .5b | November 19, 2007, 7:16pm | #

his is one bad consequence of that otherwise effective principle of "laboratories of democracy", i.e. several governments deciding local law.

How do you figure that, especially when in the next paragraph you point out that they have no enforcement powers on people outside of the UK?

Elemenope | November 19, 2007, 7:23pm | #

No, what I'm saying is that it is a two-edged sword. What scares me is that in such a circumstance as Ms. Ehrenfeld finds herself in, if it turns out that England's arm is that long, then she is out of luck. Even if things might shake out all right in the end, defending oneself from suits is expensive and eventually become a form of damages all of their own.

Since Ms. Ehrenfeld (I assume) played no role in the drafting of UK's current libel laws nor votes in the UK, she could get screwed by being forced to merely participate in a local system of law of which she is not a franchised party.

In my opinion, local "laboratories of democracy" if they are to work must have reach limited to their legitimate jurisdiction. The sticking point is that in a world that has a great deal of international commercial intercourse, these local patchworks of law will end up simply screwing whoever can't game the system well enough.

United Kingdom Churh of Scientology | November 19, 2007, 8:43pm | #

This is one of Scientology's favorite tactics against "suppressive persons" (i.e. critics of the cult): Have a the UK church sue for libel even if the comments were made in another country.

Sickening, really.

Mr. MacKenzie,

In regards to the above cited defamatory statements which you have intentionally and maliciously caused to be published in the United Kingdom of Great Britain and Northern Ireland, you are hereby summoned to appear forthwith to answer said charges in Blackfriars Crown Court, Pocock Street, London. SE1 0BJ.

Akira MacKeznie | November 19, 2007, 9:39pm | #

Fuck you.

jtuf | November 19, 2007, 9:43pm | #

This is why we have to clear up national juristictions and stick with agreed upon limits. We've got US officials banning websites in Antigua and Barbuda, England courts fining Americans for writing books, and the War on Drugs has trashed national sovereignty.

juris imprudent | November 19, 2007, 10:38pm | #

In 2005 a British judge issued a default judgment against Ehrenfeld, ordering her to apologize, pay Bin Mahfouz about $230,000, and destroy all copies of her book.

Jaysus, we complain about OUR judges! This dipwad seems to have failed to notice that we told the English to pound sand over 200 years ago.

Guy Montag | November 19, 2007, 10:43pm | #

whom she identified in her 2003 book Funding Evil as a source of financial support for terrorism.

Amazingly, Reason is going forward with support of this even though Bush/Cheney "terrorism" is not the focus.

Isaac Bartram | November 20, 2007, 10:21am | #

Amazingly, Reason is going forward with support of this even though Bush/Cheney "terrorism" is not the focus.

Well given what good pals the Bushistas are with the Saudis maybe it's not as disconnected a you think.

Kidding. Well....half kidding, anyway.

Taktix® | November 20, 2007, 10:42am | #

Is this Khalid bin Mahfouz fellow the same guy who got Robert O. Collins' book "Alms for Jihad" banned?

It's pretty clear this guy is gaming the U.K. system to keep his dealings hush-hush.

I sure hope the U.S. doesn't cave to this, seeing as we almost certainly have an expedition treaty with the U.K. If this can happen to Collins and Ehrenfeld, it can happen to anybody.

Damn Bush and his buddy-buddy shit with the Saudis.

Isaac Bartram | November 20, 2007, 11:07am | #

Taktix®

I'm sure you mean "extradition" rather than "expedition. Extradition only applies to criminal matters while this is a civil matter.

The power of foreign courts to enforce civil judgments in the US is a rather different matter and I believes it requires some kind of order from a judge here. But now I'm getting into territory where the knowledge of a lawyer might be useful.

Taktix® | November 20, 2007, 11:19am | #

Issac,

Thanks for the correction. When will reason add a preview button?

RKV | November 20, 2007, 10:27pm | #

See also Alms for Jihad: Charity and Terrorism in the Islamic World, by J. Millard Burr and Robert O. Collins (an old prof of mine at UCSB).
http://www.frontpagemag.com/Articles/Read.aspx?GUID=AB232ECB-25D9-4B8E-8FCA-3441CDB01B1F

Mark | November 20, 2007, 10:34pm | #

The UK is lost.

David Ross | November 20, 2007, 10:59pm | #

Elemenope: "Sure, Britain's libel laws may be plaintiff friendly, but wouldn't seizing the assets of libelers in some other country be rather low on the international priority list? Aren't they too busy harassing drug merchants/traffickers and shipping pirates?"

Unfortunately, no; not in the green and pleasant land. This is the place which pulled hundreds of bobbies off their beats to crack down on fox hunting. These are the cops who tried to stop Channel 4 from running "Undercover Mosque".

Policing in Blairistan is about law enforcement; and it is easier to enforce a stupid law, like English libel law or bans on smoking, than a serious one like keeping Abu A-Booboo from breaking into your home at 4 AM. The latter incurs paperwork and it's More Than My Job's Worth.

John Burgess | November 20, 2007, 11:54pm | #

Rather than a $230,000 judgment against the author, the sum was $23,000. As she didn't choose to defend herself (thus accruing no legal fees, incidentally) the court imposed the maximum fine permissible under UK law.

Bin Mahfouz has been suing primarily because the authors of the various books have been relying on a document known as the 'Golden Chain'. This document has been assessed by US and British courts as to be valueless. The document, with no provenance, suggests that Bin Mahfouz and his son are financiers of terror. All it is, though, is a mysterious list of names of people who some analysts think are financiers. Maybe it'd be useful to consider that Bin Mahfouz just might have a legitimate gripe.