Winston Churchill in 1947 said our democracy was the world’s worst form of government — except, he admitted, all the others man had tried. He might today say the same about our libel laws.
Often criticized as insufficiently protective of the news media’s First Amendment rights, U.S. libel laws look nearly bulletproof when compared to other countries’ defamation statutes. Such comparisons are not merely academic these days. Rather, with the Internet and global distribution networks disseminating information worldwide, authors and other publishers are increasingly finding themselves hauled into court in faraway — and more libel-friendly — jurisdictions.
Since 2000, for example, U.S. publishers have faced defamation actions in Australia, Canada, England, France, Germany, Italy and Zimbabwe. In all of these cases, the foreign courts ignored the protections of U.S. libel law and instead applied local law to determine the publishers’ liability. Under many of these local laws, the publisher bears the heavy burden of proving the allegedly defamatory statement true, unlike in the U.S., where the offended person must prove the statement false.
Two recent cases, however, suggest U.S. publishers might not be in as much jeopardy as they once feared. In Bangoura v. Washington Post, the Court of Appeal for Ontario, Canada, last month threw out the case of Cheickh Bangoura, a former United Nations employee in Kenya who sued the Post over two 1997 articles reporting allegations against him of sexual harassment, financial improprieties and nepotism.
Bangoura moved to Ontario in 2000 and sued the Post there in 2003. He argued that jurisdiction in Canada was proper because the articles were available on the Post’s Web site and could be accessed by Canadians. The Post countered that just seven residents of Ontario subscribed to the newspaper in 1997 and that the articles were freely available online for only 14 days after their publication. After that time, the articles could be accessed only through a paid archive, and only one person — Bangoura’s lawyer — had paid to access the articles.
A lower court, the Ontario Superior Court of Justice, agreed with Bangoura. “Admittedly, the defendants have no connection to Ontario,” Justice Romain Pitt wrote for the court, “but The Washington Post is a major newspaper in the capital of the most powerful country in a world now made figuratively smaller by, inter alia, the internet. ... Frankly, the defendants should have reasonably foreseen that the story would follow the plaintiff wherever he resided.”
Such a standard, of course, would allow a person to file a defamation suit wherever he or she lived, not only when the allegedly libelous statement was published but also after the person had moved to a different jurisdiction. The Court of Appeal rejected this standard, holding a publisher can be sued in Canada only if it were reasonably foreseeable that the allegedly defamed person would suffer damages in Canada. In this case, Judge Robert Armstrong wrote, “It was not reasonably foreseeable in January 1997 that Mr. Bangoura would end up as a resident of Ontario three years later.”
Though helpful to the media, Canada’s foreseeability test does not eliminate the possibility that U.S. publishers will need to defend themselves in Canada. A British Columbia court, for example, has asserted jurisdiction over the New York Post in a defamation suit filed by the former general manager of the National Hockey League’s Vancouver Canucks. Under Bangoura’s foreseeability standard, this jurisdiction likely is proper.
The second recent significant case involving the application of libel laws internationally, however, would — if successful — effectively eliminate even foreseeable foreign jurisdiction. In Ehrenfeld v. Bin Mahfouz, author Rachel Ehrenfeld is asking a U.S. court to rule that an English libel judgment against her cannot be enforced in the U.S. because the judgment was not entered in accordance with First Amendment principles. Such a ruling would effectively deprive all foreign courts of meaningful jurisdiction over U.S. publishers.
In Ehrenfeld, which is pending in the U.S. District Court for the Southern District of New York, Ehrenfeld is suing Khalid Salim a Bin Mahfouz, a Saudi who Ehrenfeld claims financially supported al-Qaida in the years preceding the Sept. 11, 2001, terrorist attacks. Ehrenfeld filed her action after Bin Mahfouz obtained a libel judgment against her in England related to her book, Funding Evil: How Terrorism is Financed and How to Stop It.
Bin Mahfouz’s decision to sue in England appears to have been motivated solely by his likelihood of prevailing under English law. Bin Mahfouz is not a citizen or resident of England, and Ehrenfeld’s book was not published there. Indeed, only 23 copies of the book were purchased over the Internet by English citizens.
Realizing she could not successfully defend herself under English law, Ehrenfeld chose not to appear in the English court hearing the case. The court then awarded Bin Mahfouz an unspecified amount of damages, enjoined publication of the book in England and entered a “declaration of falsity” stating the book was false and defamatory.
Although Bin Mahfouz did not attempt to seize Ehrenfeld’s assets or otherwise enforce the judgment in the U.S., Ehrenfeld filed the pending declaratory judgment against him. Bin Mahfouz has moved to dismiss the suit, claiming it is premature, at least until he makes some effort to enforce the judgment. The case has been fully briefed since mid-summer, and a decision is expected soon.
Interestingly, the case might not turn on whether Bin Mahfouz seeks to satisfy his monetary judgment against Ehrenfeld. Rather, the dispositive issue might be whether the court accepts Ehrenfeld’s argument that the judgment — even if never enforced — harms her reputation and chills her First Amendment rights by compromising her ability to attract publishers and obtain employment.
At this early stage in the case, there appears to be little evidence supporting Ehrenfeld’s argument. Bin Mahfouz, however, is hardly a sympathetic defendant, and his resort to English libel law to silence critics (he has threatened or filed 29 libel actions in the United Kingdom) suggests an intent to intimidate that likely will offend a U.S. court.
The case accordingly will be watched closely, not only because of the dispute between Ehrenfeld and Bin Mahfouz but also because a favorable ruling for Ehrenfeld could be helpful precedent for all U.S. media defendants facing libel actions in foreign nations. It therefore is not surprising that the American Society of Newspaper Editors, the Association of American Publishers and 14 other groups have joined the case to support Ehrenfeld.
Even a sweeping win for Ehrenfeld, however, would not protect the assets of media companies in other countries, as a judgment that a foreign libel award was unenforceable in the U.S. would not prevent the enforcement of that award against assets outside the country. Nevertheless, given the jeopardy U.S. media companies now face, a ruling that protects their assets here would be extremely significant — and welcome.