The Myth of 'Libel Tourism'

New York Law Journal

November 20, 2007

A campaign is under way to convince Americans that our information media are in grave danger from 'libel tourism.' That term is being applied when the published work of an American has been distributed in another country, often solely through Internet purchases or accessibility through a Web site, and leads to a libel suit there by a foreigner who is not a resident.

The American media's claim is that, wherever and however their words travel to reach readers in the globalized Internet world, they should be cloaked in the protections afforded them when sued for libel in the United States. Here, a libel plaintiff has the burden of proving that the statements are false and were published with 'fault' ranging from negligence to deliberate lies -- a rule derived from Supreme Court decisions that the First Amendment requires that American media should have some 'breathing space' in reporting on the conduct of public officials and public figures, to allow for the possibility of a good faith mistake. This drastically changed the common law rule inherited by our states from England that publishers bear the burden of proving the truth of what they publish, and 'fault' is not a factor. 

Having enjoyed this 'breathing space,' for more than 40 years the American media's dismay at the prospect of being judged by the former standard in England or other countries is understandable. Nevertheless, as a matter of international law, the applicability of the U.S. Constitution, including the First Amendment, stops at our borders, and does not provide rules for the jurisprudence of other countries.

Currently, an author, Professor Rachel Ehrenfeld, is held up as a victim of 'libel tourism.' The archetype of the 'libel tourist' is said to be Khalid bin Mahfouz, a Saudi citizen, banker and businessman, who sued Ms. Ehrenfeld for libel in England because in a 2003 book published in the United States she wrote that he was a financial supporter of Islamic terrorism (NYLJ, June 11, 2007). In his libel claim, Mr. Mahfouz asserted that he had done business and owned property in England for many years and has a reputation there. He established to the satisfaction of the English court that it had jurisdiction over Ms. Ehrenfeld because at least 23 copies of her book were sold into England via the Internet, and a major American news Web site's account of her accusations was accessed from England more than 200,000 times.

Not discussed in most media treatments of Ms. Ehrenfeld's case is that, with lawyers in both England and the United States to advise her, she chose not to substantiate her charges in an English court, thus 'defaulting' by failing to appear and defend. One has to wonder if a reason for this is that, in the opinion of her English counselors, she did not have sufficient evidence to back up her charge of terrorism support. She defaulted even though English libel law had recently recognized a defense for reporting on subjects of public interest done in a responsible manner. Whatever may be the case there, the strategy followed by Ms. Ehrenfeld -- knowing that default would expose her to a judgment of the English court -- was to sue Mahfouz in a federal court here for a declaratory judgment that (1) his libel claim would fail if it was tried here under U.S. law, and (2) any English judgment he obtained would be unenforceable because it was not obtained in conformity with U.S. law.

This strategy raises troubling questions about the role of American courts and the reach of American law in our country's international relations, not the least of which is the question of the jurisdiction of our courts to render judgments binding on foreign nationals. Our courts have to be satisfied that they have 'personal jurisdiction' over a defendant. In New York a court may assert personal jurisdiction over a nonresident, if he 'transacted business' here and the plaintiff's claim 'arises from' such activity. Ms. Ehrenfeld claims that the delivery of papers in Mr. Mahfouz's English case on her in New York satisfied that jurisdictional standard. The federal court rejected that reasoning, ruling that New York's established criteria for 'transaction of business' could not be applied to such communications. On appeal the federal Court of Appeals decided that Ms. Ehrenfeld claim raised novel issues about 'transaction of business' which could only be answered by New York State's Court of Appeals, and 'certified' those issues to that court in Albany, where oral arguments were held last week.

Ms. Ehrenfeld's position is being vigorously supported by 'friend of the court' briefs submitted by major media companies and trade groups. That support has made clear that Ms. Ehrenfeld's case is a 'stalking horse' for a result which American media devoutly wish for -- the extension of the greater protection of U.S. libel law for U.S. publishers and writers to wherever in the world their publications do damage.

Mr. Mahfouz didn't walk without burdens into a receptive, unprincipled English court eager to proceed against Ms. Ehrenfeld. The English court, like ours, had to be satisfied it had a proper basis for exercising personal jurisdiction over her. Truth or falsity then became the central issue in the English libel case, just as it is here, but with the burden of proof on Ms. Ehrenfeld. She declined the opportunity to justify her research and writing, as both true and responsible, claiming in her federal lawsuit that Mr. Mahfouz's case was brought to harass and intimidate her and other American writers about terrorism. It was then that the 'libel tourist' was born -- created to demonize foreign libel claimants against Americans and presented as an unintended consequence or perversion of an Internet that is supposed to be a vehicle for the 'unencumbered, free exchange of ideas.'

To American media, 'unencumbered' means freedom from liability for the publication of damaging words anywhere outside the United States. But civilized societies have always found a way to provide a remedy for the damaging consequences of defamation. Worldwide, the law is slowly adapting to the Internet age because, if anything, the Internet's potential for devastating cross-border or global damage to reputation has grown exponentially because of its speed and reach. The insular, protectionist concept of Ms. Ehrenfeld's attempt to limit her liability -- and that of all other American authors and publishers -- to that determined by an American court under American law is not the answer to this global social problem.

England has given us much of our common law and the fundamental rights embodied in our federal and state constitutions, such as due process, indeed, the concept of freedom of expression itself. Now her courts are being unjustly vilified in our courts as instruments of intimidation and harassment of our media. At a time in our history when American policies and attitudes on a wide variety of subjects are antagonizing authorities and populaces in other countries around the world, that is truly an unseemly spectacle. In international law the recognition of judgments from foreign countries is based on 'comity' (a kind of mutual respect), the basic elements of which are reciprocity and shared beliefs in fundamental societal policies, such as due process, freedom of expression and, yes, protection of reputation. The myth of 'libel tourism' advanced in Ehrenfeld v. Mahfouz threatens the foundations of these long-standing and important relationships.

John J. Walsh practices media law as a senior counsel at Carter Ledyard & Milburn.

Reprinted with permission from the November 20, 2007 edition of The New York Law Journal
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