NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9652B
SPONSOR: Lancman 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 deter-
mines 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 Prac-
tice 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 resi-
dent'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, promo-
ters, 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 uninhib-
ited, 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 substan-
tively, 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 promi-
nent 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 judg-
ment 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 with-
held 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 work-
ing 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. Ehren-
feld 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 appli-
cation, the same free speech protections guaranteed under our own
constitution, and by giving New York residents and publishers the oppor-
tunity 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.
STATE OF NEW YORK
________________________________________________________________________
9652--B
Cal. No. 776
IN ASSEMBLY(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 § 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 § 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 § 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 § 4. This act shall take effect immediately.
