Intellectual Property Law

NY Libel Terrorism Protection Act 2008

By IBLS Editor

A new law has been enacted by the New York Congress and signed into law by Governor Paterson designed to protect American journalists and authors from foreign lawsuits that disregard First Amendment rights. New York State enacted the "Libel Terrorism Protection Act" (S.6687/A.9652), on March 31, passed by the state's Assembly and Senate unanimously. Upon signing the Bill, Governor Paterson said, "New Yorkers must be able to speak out on issues of public concern without living in fear that they will be sued outside the United States, under legal standards inconsistent with our First Amendment rights. This legislation will help ensure of the freedoms enjoyed by New York authors." The new law has important implications for Internet publications and the laws of Defamation. The bill was sponsored by Assemblyman Rory Lancman (D-Queens) and Senate Deputy Majority Leader Dean G. Skelos (R-Rockville Centre).

The legislation is also known as Rachel's Law after Dr. Rachel Ehrenfeld, an Israeli-American terrorism scholar and globally recognized counter-terrorism authority. The law was drafted and passed after Dr. Ehrenfeld's was sued regarding a book she had written,  called "Funding Evil: How Terrorism Is Financed and How to Stop It." The tome identified Khalid bin Mahfouz, banker to the Saudi royal family and one of the wealthiest men in the world, as a leading terrorism financier.

The Act is a direct countermeasure against what some have named ?Libel Tourism,? in which a person who feels they have been defamed goes not where the statements occurred, but instead to the country that has the most liberal defamation laws to file their case. This has caused many problems, and called into question whether such law can be applied fairly between regimes. For instance, the United States has very liberal laws regarding Free Speech, whereas Great Britain frames defamatory acts much more narrowly. So if a person who publishes in America can be sued in England, the plaintiff stands a much better chance of triumphing, especially when bearing in mind how the Internet has complicated the definition of ?publication.?

Dr. Ehrenfeld's book made several claims regarding the banker, such as claiming, ?As far back as 1996, French, British and US intelligence believed bin Mahfouz had erected a banking system to benefit Osama bin Laden.? Also, ?Bin Mahfouz's bogus Muwafaq (Blessed Relief) "charitable foundation" fronted for several other terror groups, including Makhtab al-Khidamat, al Qaeda, Hamas and Abu-Sayyaf. The "charity's" head was Yassin al-Qadi, later designated by the State and Treasury Departments as an international terrorist.? It was these statements that caused Mahfouz to sue Dr. Ehrenfeld.

Despite there having been only a handful of copies of the book sold in the U.K., Mahfouz sued Ehrenfeld under Britain's easy-to-prove Defamation regime, and won. Britain's High Court ordered Ehrenfeld  to pay over $225,000 in damages and legal fees to Bin Mahfouz, apologize and destroy all copies of her books. But instead of paying, in November 2006, Dr. Ehrenfeld went to get a U.S. federal court order to protect her constitutional rights. Dr. Ehrenfeld filed suit in the U.S. in Ehrenfeld v. Mahfouz, which moved to New York State's highest court. The NY Supreme Court ruled it could not protect Dr. Ehrenfeld from the British lawsuit filed by the Saudi billionaire.

Th New York Court of Appeals ruling surprised many analysts and alarmed publishers, authors, news groups and many online websites. The New York court ruling would have undermined U.S. journalists' ability to write upon terrorism, as it effectively ruled the court lacks jurisdiction to protect Americans, on U.S. soil, from foreign court defamation judgments that legally contradict the First Amendment to the United States Constitution. It was after this that New York decided it must pass a new law to fight the danger of foreign government and courts defining U.S. Law.

The pertinent part of the law is section 8, that states the law of any foreign regime must give at least as much free speech rights per defamation as the NY & U.S. Constitutions afford:

THE CAUSE OF ACTION RESULTED IN A DEFAMATION JUDGMENT OBTAINED IN A JURISDICTION OUTSIDE THE UNITED STATES (cannot be held as binding), UNLESS THE  COURT  BEFORE  WHICH THE  MATTER  IS  BROUGHT SITTING IN THIS STATE FIRST DETERMINES THAT THE DEFAMATION LAW APPLIED IN THE FOREIGN COURT`S ADJUDICATION  PROVIDED  AT LEAST AS MUCH PROTECTION FOR FREEDOM OF SPEECH AND PRESS IN THAT CASE AS WOULD BE PROVIDED BY BOTH THE UNITED STATES AND NEW YORK CONSTITUTIONS.

On the Bill's import, Manhattan District Attorney Robert M. Morgenthau said: "Terrorism and terrorist financing are matters of vital interest to all New Yorkers, in no small part because New York City remains a target of significance for international terrorists. New York authors must have the freedom to investigate, write and publish on terrorism and other matters of public importance, subject only to limitations that are consistent with the U.S. Constitution. This legislation will help to ensure such freedom."

Full post as published by IBLS Internet Law Blog on May 07, 2008 (boomark / email).