BILL NO A09652B
SAME AS SAME AS S06687-C
SPONSOR Lancman
COSPNSR Jaffee, Zebrowski K, Fields, Alfano, Lavine, Maisel
MLTSPNSR Koon, Latimer, Lifton, McDonough, Paulin
Amd SS5304 & 302, CPLR
Relates to personal jurisdiction and enforceability of certain foreign
judgments in cases involving defamation.
BILL NO A09652B
01/09/2008 referred to judiciary
02/05/2008 amend and recommit to judiciary
02/05/2008 print number 9652a
02/12/2008 reported referred to codes
03/11/2008 reported
03/13/2008 advanced to third reading cal.776
03/17/2008 substituted by s6687b
S06687 AMEND=C SKELOS
01/09/2008 REFERRED TO CODES
01/28/2008 AMEND AND RECOMMIT TO CODES
01/28/2008 PRINT NUMBER 6687A
02/12/2008 1ST REPORT CAL.323
02/13/2008 AMENDED 6687B
02/13/2008 2ND REPORT CAL.
02/25/2008 ADVANCED TO THIRD READING
02/27/2008 PASSED SENATE
02/27/2008 DELIVERED TO ASSEMBLY
02/27/2008 referred to codes
03/17/2008 substituted for a9652a
03/17/2008 ordered to third reading cal.776
03/26/2008 RECALLED FROM ASSEMBLY
03/26/2008 substitution reconsidered
03/26/2008 recommitted to codes
03/26/2008 returned to senate
03/26/2008 VOTE RECONSIDERED - RESTORED TO THIRD READING
03/26/2008 AMENDED ON THIRD READING 6687C
03/31/2008 REPASSED SENATE
03/31/2008 RETURNED TO ASSEMBLY
03/31/2008 referred to codes
03/31/2008 substituted for a9652b
03/31/2008 ordered to third reading cal.776
03/31/2008 passed assembly
03/31/2008 returned to senate
04/18/2008 DELIVERED TO GOVERNOR
04/28/2008 APPROVAL MEMO.5
04/28/2008 SIGNED CHAP.66
03/26/2008 substitution reconsidered
03/26/2008 restored to third reading
03/26/2008 amended on third reading 9652b
03/31/2008 substituted by s6687c
S06687 AMEND=C SKELOS
01/09/2008 REFERRED TO CODES
01/28/2008 AMEND AND RECOMMIT TO CODES
01/28/2008 PRINT NUMBER 6687A
02/12/2008 1ST REPORT CAL.323
02/13/2008 AMENDED 6687B
02/13/2008 2ND REPORT CAL.
02/25/2008 ADVANCED TO THIRD READING
02/27/2008 PASSED SENATE
02/27/2008 DELIVERED TO ASSEMBLY
02/27/2008 referred to codes
03/17/2008 substituted for a9652a
03/17/2008 ordered to third reading cal.776
03/26/2008 RECALLED FROM ASSEMBLY
03/26/2008 substitution reconsidered
03/26/2008 recommitted to codes
03/26/2008 returned to senate
03/26/2008 VOTE RECONSIDERED - RESTORED TO THIRD READING
03/26/2008 AMENDED ON THIRD READING 6687C
03/31/2008 REPASSED SENATE
03/31/2008 RETURNED TO ASSEMBLY
03/31/2008 referred to codes
03/31/2008 substituted for a9652b
03/31/2008 ordered to third reading cal.776
03/31/2008 passed assembly
03/31/2008 returned to senate
04/18/2008 DELIVERED TO GOVERNOR
04/28/2008 APPROVAL MEMO.5
04/28/2008 SIGNED CHAP.66
BILL NUMBER: A9652B
TITLE OF BILL : An act to amend the civil practice law and rules, in
relation to enforceability of certain foreign judgments
PURPOSE OF BILL : This bill would effectively overrule the recent
New York Court of Appeals December 2007 decision in Ehrenfeld v.
Mahfouz and protect New Yorkers and New York based publishers and
media outlets from local enforcement of foreign defamation judgments
designed to squelch their freedom of expression. Overseas
jurisdictions, lacking the free speech and free press protections
guaranteed by the New York and United States constitutions, often have
libel laws designed to discourage and inhibit free expression, rather
than promote it. Despots and terrorist networks whose activities have
been exposed by American authors and news organizations have
increasingly turned to such jurisdictions to obtain defamation
verdicts which they could never obtain in an American court in order
to harass and intimidate American authors and journalists.
This bill would prohibit enforcement of such unfair overseas
defamation judgments in New York and give New Yorkers and New York
based publishers and media outlets the ability to obtain a declaration
in a New York Court to that effect.
SUMMARY OF PROVISIONS : OF BILL: Adds subdivision 2(b) (8) to
section 5304 of the Civil Practice Law and Rules, prohibiting
enforcement in New York of an overseas defamation judgment unless a
New York court determines that the overseas defamation law satisfies
the freedom of speech and press protections guaranteed by the New York
and United States constitutions; adds subdivision (d) to section 5304
of the Civil Practice Law and Rules, providing the courts of this
state with personal jurisdiction over any person who obtains a
judgment in a defamation proceeding outside the United States against
any person or entity who is a resident of New York or is amenable to
jurisdiction in New York, for the purposes of rendering declaratory
relief with respect to that resident's liability for the judgment,
provided: (1) the publication at issue was published in New York, and
(2) that resident or person/entity is amenable to jurisdiction in New
York (a) has assets in New York which might be used to satisfy the
foreign defamation judgment, or (b) may have to take actions in New
York to comply with the foreign defamation judgment.
JUSTIFICATION :
American journalists and authors who relentlessly and doggedly pursue
the truth about terrorism's enablers - the financiers, frontmen,
promoters, apologists and logisticians who made attacks like 9/11, the
Madrid railroad explosions and the London bus and subway bombings
possible - are being met with a barrage of libel lawsuits designed to
stifle their reporting filed in overseas jurisdictions not sharing our
belief, famously articulated by the Supreme Court over forty years ago
in N.Y. Times Co. v. Sullivan, "that debate on public issues should be
uninhibited, robust, and wide-open." Having been routed in numerous
defamation cases against journalists, authors and advocacy groups
brought here in the United States, the subjects of these exposes are
filing defamation claims in foreign courts - England, primarily with
lopsided defamation laws that make it virtually impossible, both
logistically and substantively, for authors to defend their work on
the merits.
The case of Dr. Rachel Ehrenfeld, a distinguished and prolific New
York based researcher and the author of "Funding Evil: How Terrorism
is Financed - and How to Stop It," is typical. The book identifies a
prominent Saudi businessman as a financier of organizations with
terrorist ties. Twenty-three copies of her book were sold in England,
and excerpts of it were posted on a television station website
accessible in England.
The Saudi businessman sued Dr. Ehrenfeld in a London court, where he
has sued many others who published similar conclusions about his
terrorist ties. Dr. Ehrenfeld had neither the financial means to
litigate her case in England nor the desire to dignify, let alone
submit to, England's asphyxiating defamation laws. The Saudi
businessman won a default judgment requiring Dr. Ehrenfeld to pay him
$225,000 in damages and legal fees, publicly apologize and, as
interpreted by his lawyers, destroy all remaining copies of her book.
The Saudi businessman has cleverly withheld actually attempting to
enforce the judgment against Dr. Ehrenfeld in New York, lest he
trigger the potential that an American court will refuse to enforce
the English judgment. But he has already accomplished his goal. Dr.
Ehrenfeld feels the weight of self-censorship every working moment;
her publishers are suddenly backing away from running her work. And
Dr. Ehfenfeld's intellectual detention has no end in sight. In
December 2007, New York State's highest court relied on a narrow and
hyper-technical reading of New York's personal jurisdiction laws
against non-resident defendants like the Saudi businessman who sued
Dr. Ehrenfeld overseas to block a lawsuit filed by Dr. Ehrenfeld in
New York to declare the defamation judgment unenforceable against her
in New York.
So the English judgment will forever hang over Dr. Ehrenfeld's head
like the sword of Damocles.
The "Libel Terrorism Protection Act" would protect journalists and
authors by declaring overseas defamation judgments unenforceable in
New York unless the foreign defamation law provides, in substance and
application, the same free speech protections guaranteed under our own
constitution, and by giving New York residents and publishers the
opportunity to have their day in court here in New York.
LEGISLATIVE HISTORY : New bill, 2008.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : None.
EFFECTIVE DATE : Immediately.
S T A T E O F N E W Y O R K
________________________________________________________________________
9652--B
Cal. No. 776
I N A S S E M B L Y
(PREFILED)
January 9, 2008
___________
Introduced by M. of A. LANCMAN, JAFFEE, K. ZEBROWSKI, FIELDS, ALFANO --
Multi-Sponsored by -- M. of A. KOON, LIFTON, McDONOUGH, PAULIN -- read
once and referred to the Committee on Judiciary -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported from committee, advanced to a third
reading, amended and ordered reprinted, retaining its place on the
order of third reading
AN ACT to amend the civil practice law and rules, in relation to
enforceability of certain foreign judgments
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "libel terrorism protection act".
3 S 2. Section 5304 of the civil practice law and rules, as added by
4 chapter 981 of the laws of 1970, is amended to read as follows:
5 S 5304. Grounds for non-recognition. (a) No recognition. A foreign
6 country judgment is not conclusive if:
7 1. the judgment was rendered under a system which does not provide
8 impartial tribunals or procedures compatible with the requirements of
9 due process of law;
10 2. the foreign court did not have personal jurisdiction over the
11 defendant.
12 (b) Other grounds for non-recognition. A foreign country judgment need
13 not be recognized if:
14 1. the foreign court did not have jurisdiction over the subject
15 matter;
16 2. the defendant in the proceedings in the foreign court did not
17 receive notice of the proceedings in sufficient time to enable him to
18 defend;
19 3. the judgment was obtained by fraud;
20 4. the cause of action on which the judgment is based is repugnant to
21 the public policy of this state;
22 5. the judgment conflicts with another final and conclusive judgment;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14685-12-8
A. 9652--B 2
1 6. the proceeding in the foreign court was contrary to an agreement
2 between the parties under which the dispute in question was to be
3 settled otherwise than by proceedings in that court; [or]
4 7. in the case of jurisdiction based only on personal service, the
5 foreign court was a seriously inconvenient forum for the trial of the
6 action[.]; OR
7 8. THE CAUSE OF ACTION RESULTED IN A DEFAMATION JUDGMENT OBTAINED IN A
8 JURISDICTION OUTSIDE THE UNITED STATES, UNLESS THE COURT BEFORE WHICH
9 THE MATTER IS BROUGHT SITTING IN THIS STATE FIRST DETERMINES THAT THE
10 DEFAMATION LAW APPLIED IN THE FOREIGN COURT'S ADJUDICATION PROVIDED AT
11 LEAST AS MUCH PROTECTION FOR FREEDOM OF SPEECH AND PRESS IN THAT CASE AS
12 WOULD BE PROVIDED BY BOTH THE UNITED STATES AND NEW YORK CONSTITUTIONS.
13 S 3. Section 302 of the civil practice law and rules is amended by
14 adding a new subdivision (d) to read as follows:
15 (D) FOREIGN DEFAMATION JUDGMENT. THE COURTS OF THIS STATE SHALL HAVE
16 PERSONAL JURISDICTION OVER ANY PERSON WHO OBTAINS A JUDGMENT IN A DEFA-
17 MATION PROCEEDING OUTSIDE THE UNITED STATES AGAINST ANY PERSON WHO IS A
18 RESIDENT OF NEW YORK OR IS A PERSON OR ENTITY AMENABLE TO JURISDICTION
19 IN NEW YORK WHO HAS ASSETS IN NEW YORK OR MAY HAVE TO TAKE ACTIONS IN
20 NEW YORK TO COMPLY WITH THE JUDGMENT, FOR THE PURPOSES OF RENDERING
21 DECLARATORY RELIEF WITH RESPECT TO THAT PERSON'S LIABILITY FOR THE JUDG-
22 MENT, AND/OR FOR THE PURPOSE OF DETERMINING WHETHER SAID JUDGMENT SHOULD
23 BE DEEMED NON-RECOGNIZABLE PURSUANT TO SECTION FIFTY-THREE HUNDRED FOUR
24 OF THIS CHAPTER, TO THE FULLEST EXTENT PERMITTED BY THE UNITED STATES
25 CONSTITUTION, PROVIDED:
26 1. THE PUBLICATION AT ISSUE WAS PUBLISHED IN NEW YORK, AND
27 2. THAT RESIDENT OR PERSON AMENABLE TO JURISDICTION IN NEW YORK (I)
28 HAS ASSETS IN NEW YORK WHICH MIGHT BE USED TO SATISFY THE FOREIGN DEFA-
29 MATION JUDGMENT, OR (II) MAY HAVE TO TAKE ACTIONS IN NEW YORK TO COMPLY
30 WITH THE FOREIGN DEFAMATION JUDGMENT. THE PROVISIONS OF THIS SUBDIVISION
31 SHALL APPLY TO PERSONS WHO OBTAINED JUDGMENTS IN DEFAMATION PROCEEDINGS
32 OUTSIDE THE UNITED STATES PRIOR TO AND/OR AFTER THE EFFECTIVE DATE OF
33 THIS SUBDIVISION.
34 S 4. This act shall take effect immediately.
