A Legislative Solution For Cross-Border Defamation Claims


The State of New York, and—recently—the United States Congress—are presently considering enacting laws that would give American authors legal recourse when they are sued abroad for defamation over literary works that would otherwise fall within the broad protections of the First Amendment to the United States Constitution.

In New York, both the Assembly and its Senate have unanimously passed a bill (dubbed the “Libel Terrorism Protection Act” (S.6687/A.9652)) that would give authors who are sued for libel abroad the right to obtain a declaration that such judgments are unenforceable because their works are protected under American law. Both the U.S. House and Senate are now considering federal legislation that would give authors the right to countersue those who have sued them for defamation in foreign courts, and obtain more than three times the amount of the libel judgment of the foreign court, if the American writer could prove the accuser was trying to intimidate the author from exercising his or her First Amendment rights.

As this article explains, the conflict between foreign judgments and the First Amendment has been brewing since 1941, when the U.S. Supreme Court starkly distinguished American protection of speech from that of England. Only recently, however, as England has become a choice venue for libel plaintiffs from around the world, has that country’s libel law come to have a disturbing impact on the First Amendment. The case against Rachel Ehrenfeld in England by Saudi banker Khalid Bin Mahfouz is illustrative. Her 2003 book named Mr. Bin Mahfouz as a possible funder of terrorism. Twenty-three copies of the book were sold in England, which led Mr. Bin Mahfouz to sue there. Ms. Ehrenfeld refused to appear before the English courts, and a judgment against her was entered in the amount of $225,000. Ms. Ehrenfeld has sought a declaratory judgment in New York determining that the English judgment was not enforceable here, and that her work was protected under American law. But the New York Court of Appeals determined that her suit could not be heard under existing state law (because the state’s long-arm statute did not authorize personal jurisdiction over Mr. Bin Mahfouz), and it was the duty of the legislature to change that law if it sees fit. See Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501 (N.Y. App. 2007). It appears now that that some change in that direction is starting to occur. English courts, however, are not the only one’s creating this alleged conflict; consider Yahoo!’s cross-border struggle with French authorities over Nazi-era materials on its auction website. See Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1204 (9th Cir. 2006).

More commentary on this pending legislation is available here.

4 replies
  1. John Ahern says:

    Perhaps it is just me, but is this not simply an attempt to impose American positions on a wider world. Where material is knowingly published in a jurisdiction, is it not natural that authors and publishers be subject to the laws and principles of that jurisdiction rather than those of the home jurisdiction? Would it not be highly undesirable for a state to acquiesce to US law where it, and not the US, is the directly affected jurisdiction? “Libel Terrorism Protection Act”….terrorism indeed.

  2. Charles Kotuby says:

    . . . . However, just to play the role of devil’s advocate, is the NY law substantively different than many European laws refusing to recognize or enforce U.S. punitive damage awards or class action judgments, and is the contemplated federal law any different from the present Japanese “clawback” statute that allows a Japanese defendant to recover the amount (plus costs and interest) of any U.S. judgment for certain antidumping violations (see Goss Int’l v. Tokyo Kikai Seisakusho, Ltd., 491 F.3d 355 (8th Cir. 2007)? In all cases, a fundamental notion of justice in the enforcing state is being subjectively trampled by the domestic effect of a foreign judgment.

  3. John Ahern says:

    devil’s advocate indeed!…there is, however, a qualitative difference between a “clawback” statute, one resulting in a status quo of sorts, and one purporting to allow up to three times the original damages. Also the distinction between the recognition of a foreign judgement and a de facto attempt to impose extra-territorial jurisdiction over another state’s regulatory scheme. Further, by allowing action where “the American writer could prove the accuser was trying to intimidate the author from exercising his or her First Amendment rights” it asserts that American citizens have the right to exercise their First Amendment rights extraterritorially. I don’t believe this right exists, or ever did.

  4. Matthew Lawn says:

    Oh I doubt it’s just you, John. There seems to be no shortage of suspicion of American motives. Certainly some of those suspicions are justified, but what we have here is not among them.

    What we have here is an American attempt to avoid having foreign positions (vis a vis free speech)imposed on us. If I read you correctly, you are referring to Dr Ehrenfeld’s ‘position’ regarding the funding of terrorism (which was published in NY, by the way.) That is the content of one instance of expression. And that is where I think you miss the point. It is not the content, but the expression itself that is at issue. Specifically that an American can express herself in accordance with American free speech protections and, while those offended can bring suit abroad if they wish, a judgment against her (so obtained) cannot be enforced in NY.

    I do share your exasperation at the title of the Act. Why not simply “Libel Protection Act”? The whole buzzword/bandwagon nature of this trend to shove nonsense down eveyones throat by hiding behind the word ‘terrorism’ is, well, the last refuge of too many scoundrels today.

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