Anthony Elia

The House of Representatives has passed a good bill that would prevent American courts from enforcing libel judgments obtained in foreign countries if those countries provide less free speech protection than the United States does.  H.R. 6146 provides that ”a domestic court shall not recognize or enforce a foreign judgment concerning defamation unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States.”

H.R. 6146 would U.S. authors and publishers a basis for attacking foreign judgments in domestic courts as the New York Libel Tourism Protection Act does. 

The New York State Court of Appeals dismissed a libel case against an independent newspaper– in which the plaintiff had already been awarded a substantial damages verdict at trial – because the statements made were merely opinion. 

The newspaper printed an editor’s note stating that the plaintiff, Monroe Mann, the town attorney, was the true power behind the throne in the town’s politics, was a “political hatchet Mann,” and was leading the town to destruction.  

The Court reiterated the three major factors in determining what constitutes opinion: whether the language used has a precise meaning; whether the statement is capable of being proven true or false; and whether in the full context of the statement readers understand that the statement is opinion rather than fact.

The Court of Appeals emphasized that the key to determining whether a statement is opinion or fact is its context, and that figurative or hyperbolic language is not determinative.

The decision affirms existing New York law, which generally gives broad protection to opinions.

On May 1, New York State passed a law giving its state and federal courts power to protect authors and publishers from unfair foreign libel judgments issued in countries whose laws are inconsistent with U.S. law.

The Libel Terrorism Protection Act was prompted by the case of Dr. Rachel Ehrenfeld, a New York-based author who was successfully sued for libel by Saudi businessman Khalid bin Mahfouz concerning her book about terror funding, “Funding Evil.”  That lawsuit was brought in England — where libel judgments are much easier to obtain than in the United States — even though only 23 copies of the book had been sold there.  

Erhenfeld then brought a lawsuit in federal court in New York to obtain a declaration that bin Mahfouz’s British judgment could not be enforced against her in the United States, and that her book was not defamatory under U.S. law.  Erhenfeld’s suit was dismissed on the grounds that she did not have jurisdiction in New York over bin Mahfouz. 

New York State responded to the dismissal by passing the Libel Terrorism Protection Act.  The Act gives courts two new powers to protect authors and publishers. 

First, the Libel Terrorism Protection Act bars New York courts from enforcing a foreign libel judgment unless the country where it was decided provides at least as much protection for freedom of speech and press as New York.  This provision of the Act will be an addition to Section 5304 of the New York Civil Practice Law and Rules and will prohibit the enforcement of a foreign judgment, “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.”
 
Second, the Libel Terrorism Protection Act increases New York courts’ authority to invalidate foreign libel judgments if those judgments could have effects in New York.  This provision of the Act will appear as a new subsection of New York Civil Practice Law and Rules, Section 302. It will give courts jurisdiction over any person who obtains a foreign judgment in a defamation case related to a New York publication if the judgment is against a person who: is a resident of New York; is a subject to jurisdiction in New York; who has assets in New York; or, may have to take actions in New York to comply with the judgment for the purposes of rendering declaratory relief.