The English courts are increasingly willing to extend English defamation laws beyond our shores. ‘Libel tourism’is a growing phenomenon, where non-English citizens travel here to sue US citizens, for statements published in the US which would be protected there. New York state’s recent strong reaction, in passing the Libel Terrorism Protection Act, potentially renders these English libel judgments unenforceable in the US.
The Bin Mahfouz case
The impetus for the Act was Bin Mahfouz versus Dr Rachel Ehrenfeld (2005). Mahfouz, a Saudi businessman, sued Ehrenfeld and US publisher Bonus Books for publishing defamatory statements about his involvement in terrorism in her US-published book Funding Evil, How Terrorism is Financed – And How to Stop it. Only 23 copies were sold in England, but one chapter was available online.
When Ehrenfeld did not appear in the English proceedings, Mahfouz successfully obtained a default judgment. The English court focused on the availability of the material here, but gave little consideration to everyone’s lack of connection with England. Mahfouz was awarded damages and costs and the defendants were required to publish an apology.
Ehrenfeld filed a pre-emptive suit in New York, seeking a declaration that the English judgment was unenforceable. The New York Court of Appeals ultimately rejected this because it lacked jurisdiction over Mahfouz. In response, New York swiftly enacted Rachel’s Law, explicitly aimed at preventing the chilling effect on free speech created by a potential foreign-libel judgment being enforced in New York.
The conflicting defamation regimes of England and the USA
The US has a sharply different defamation regime from England. It focuses on protecting a free press without the risk of a defamation judgment every time a mistake is made. In contrast to here, the plaintiff has the burden of establishing falsity. Public figures, like celebrities and politicians, also need to prove that a false statement was made with ‘malice”.
The potential effect of the Libel Terrorism Protection Act, 2008
A defamation claimant does not necessarily need to enforce an English libel judgment in New York or anywhere which is hostile to English defamation law. It may be that English libel claimants will be able to manoeuvre around this law.
On the other hand, the effect may be broad. The Act allows a pre-emptive strike against a foreign libel judgment before any enforcement is attempted. Once a New York court strikes down an English libel judgment, the judgment may as a result be unenforceable throughout the US. Ironically, the Act may invite some reverse ‘tourism”. It is available not only to New York residents, but also to any person amenable to jurisdiction in New York. So, the result is that New York may become a hub of ‘non-enforcement libel tourism’by multi-state media entities, who find themselves subject to English libel judgments.
Jennifer McDermott is a partner at international law firm Withers LLP