Persistence of Vision

The New York courts recently dismissed author Rachel Ehrenfeld's efforts to seek redress against a British libel judgment against her for publishing a book that accuses Saudi billionaire Sheikh Khalid bin Mahfouz of funding terrorism. It was a sad day for free speech, and a distressing commentary on how vulnerable English libel law leaves those who seek to uncover the complicated mechanisms by which terror financiers operate. But that may be changing.

The New York Sun is reporting that state legislators are considering a bill that would enable writers like Ehrenfeld to count on far more protection than they can now:

A bill introduced this week in Albany would give new protection to New York authors and journalists against libel judgments from foreign courts and would make it easier for writers to use New York courts to challenge foreign judgments against them.

The bill was introduced in response to a British libel judgment against a New York-based researcher that ordered her to pay a libel award of 30,000 pounds to the family of a Saudi billionaire. The researcher, Rachel Ehrenfeld, had written a book, published in America, which accused the Saudi, Khalid bin Mahfouz, of funding organizations with alleged ties to terrorism. Mr. bin Mahfouz denies the allegation and has said he "abhors terrorism in all its forms."

The libel suits Mr. bin Mahfouz filed in London against Ms. Ehrenfeld and others who made similar accusations caused a stir in the publishing world, fueling concern that foreigners increasingly head to English courts to take advantage of a lower legal standard required to prove defamation. Critics call the practice "libel tourism" and say it undermines First Amendment protections.

"If you want to go to Singapore or England or Katmandu to get a libel judgment, that judgment will not be enforceable in New York," the Queens Democrat who introduced the legislation in the Assembly, Rory Lancman, said.

The bill would prevent New York courts from enforcing such foreign libel judgments "unless a court sitting in this state first determines that the defamation law applied in the foreign jurisdiction provides at least as much protection" as the federal and state constitutions. It is unlikely that any foreign libel law passes that test. Foreign libel judgments are, most lawyers agree, generally considered unenforceable in New York courts. Current state law forbids New York courts from enforcing foreign judgments that "are repugnant to the public policy." That has been interpreted to include at least one foreign libel judgment in the past.

"The proposed legislation is unnecessary, since no foreign libel judgment has ever been enforced by a court in the United States," a lawyer for Mr. bin Mahfouz, Timothy Finn of the firm Jones Day, wrote by e-mail.

The bill does give one new boost to authors. It lets them go to New York courts to challenge a foreign libel judgment, without first waiting for anyone to try to enforce the judgment. A decision by the state's highest court, the Court of Appeals in Albany, last month refused to let Ms. Ehrenfeld pursue such a challenge.

The court decided that because Mr. bin Mahfouz, hadn't yet gone to court in New York to collect on the British judgment, Ms. Ehrenfeld couldn't get an order saying the judgment was unenforceable in New York. Ms. Ehrenfeld claimed that Mr. bin Mahfouz's employees had contacted her repeatedly with requests to pay. She said that having the order hanging over her head made it difficult finding publishers for her work . The bill would give New York courts jurisdiction to hear countersuits such as Ms. Ehrenfeld's.