In 2005, Saudi billionaire Khalid bin Mahfouz sued Rachel Ehrenfeld, an American journalist, for libel over claims in her book, Funding Evil: How Terrorism is Financed—and How to Stop It, that he’s given what a court record summarized as “direct and indirect monetary support to al-Qaida and other ‘Islamist terror groups.'” He chose to pursue that judgment in the United Kingdom, even though the book was never published there, because it’s a lot easier for plaintiffs there to win libel cases. (The practice of finding the most favorable jurisdiction to pursue such judgments is popularly known as “libel tourism.”) Ehrenfeld refused to appear, or even to acknowledge the High Court of Justice’s jurisdiction in the case, so she wound up with a default judgment against her. Since then, she’s been working her way through the American judicial system, seeking to have that judgment declared unenforceable on First Amendment grounds. Federal judges first dismissed her case, then referred it over to New York’s courts for a ruling on the relevant state law, which Ehrenfeld claims gives the U.S. courts jurisdiction over Mahfouz to the extent that he does business in this state. Late last week, New York’s Court of Appeals rejected that argument, upholding the federal court’s determination that Mahfouz’s serving Ehrenfeld with legal papers wasn’t enough to establish jurisdict over him.
Shortly after last week’s ruling, the Association of American Publishers, which had filed an amicus curiae brief with the Court of Appeals on Ehrenfeld’s behalf, issued a statement deploring the ruling as “a deep disappointment” and a blow to intellectual freedom for American scholars and journalists, and to their publishers as well.
FindLaw columnist Julie Hilden, writing before the decision was issued, considered the various arguments for and against upholding the British judgment, floating a proposal for a treaty between the U.S. and the U.K. where the courts in those nations would “give up jurisdiction in defamation cases in which the other country has a stronger interest, based on factors such as the intended dissemination of the allegedly defamatory statement, personal jurisdiction over the defendant, and the location of the plaintiff’s primary reputation, and therefore, of his or her alleged damages.”