Rachel Ehrenfeld, a New York-based author against whom a Saudi Arabian resident and citizen obtained a default judgment in a “libel tourism” lawsuit filed in England, asserted a declaratory claim that the foreign judgment was not enforceable in New York State. Just last week, the Second Circuit held that it does not have jurisdiction over the Saudi resident, clearing the way for him to attempt to enforce the judgment in New York.

New York resident Rachel Ehrenfeld is the author of the 2003 book, Funding Evil: How Terrorism is Financed and How to Stop It, which was published only in the United States. The book claimed that Khalid Salim Bin Mafouz, a Saudi Arabian citizen and resident, financially supported terrorism. Mafouz sued for defamation in Great Britain, where neither party lived, based solely on the internet sale of a relatively small number of books. He chose Great Britain wisely. Under US law, Mafouz, a public figure, would have had to show not only that Ehrenfeld’s statements about him were false, but also that they were published in reckless disregard of the truth. In Great Britain, on the other hand, Ehrenfeld had the burden of establishing that her statements were true. This type of forum-shopping has been dubbed “libel tourism.” (Libel tourism has become popular even for US plaintiffs. Just this month, Nicolas Cage brought a libel claim against Kathleen Turner over accusations in Turner’s forthcoming autobiography that Cage was arrested for DUI and that he stole a dog.) In this case, it worked for Mafouz. In light of the stringency of British law, Ehrenfeld chose not to defend against the action, and Mahfouz obtained a judgment in the amount of $225,000, an injunction against publication of the book in England and Wales, and an order that Ehrenfeld apologize.

Ehrenfeld brought a declaratory judgment action against Mafouz in New York, seeking (amongst other things) to enjoin enforcement of the judgment in New York on First Amendment grounds. Mafouz moved to dismiss, claiming that the New York courts lacked jurisdiction over him. The courts sided with Mafouz, holding that they have no jurisdiction over a person who sues a New York resident in a non-US jurisdiction, and whose contacts to New York stemmed exclusively from that lawsuit.

The Ehrenfeld case must be viewed narrowly for exactly what it is – a procedural decision based upon a narrow set of facts, brought before any attempt was made to enforce the British judgment. In fact, U.S. courts have increasingly showed their reluctance to enforce foreign defamation verdicts. As the New York courts stated in Bachchan v. India Abroad Publications, Inc., 154 Misc.2d 228, 235, 585 N.Y.S.2d 661 (Sup. Ct. N.Y. Co. 1992), “The protection to free speech and the press embodied in [the First Amendment] would be seriously jeopardized by the entry of foreign libel judgments granted pursuant to standards deemed appropriate in England but considered antithetical to the protections afforded by the Constitution.”

The Ehrenfeld case also spurred the New York legislature to introduce the “Libel Terrorism Protection Act” (S.6687/A.9652), which would both allow the New York state courts to gain jurisdiction over a libel plaintiff who obtained a foreign judgment against anyone with sufficient ties to New York State, and would render foreign defamation verdicts unenforceable in New York unless the foreign law under which the case was decided provides the same speech protections as guaranteed under the U.S. Constitution. We will be following the progress of the Bill on this Blog.