DEFAMATION Ehrenfeld 16 Oct 2006 - 18:59

Mike Dodd

American academic Dr Rachel Ehrenfeld, who was sued for defamation in London by a Saudi Arabian businessman over a book which was not published in the United Kingdom is taking her legal battle for protection against the High Court's award of damages award and an injunction to the United States Court of Appeals.

Mr Justice Eady ordered Dr Ehrenfeld to pay Sheikh Khalid bin Mahfouz and his two sons £10,000 each in damages - the maximum allowable under summary disposal for a defamation case - in a decision handed down in June last year.

He also made a declaration that certain statements in Dr Ehrenfeld's book were false, issued an injunction prohibiting their repetition, and ordered Dr Ehrenfeld and her publisher to publish a suitable apology, and pay the claimants' costs.

Sheikh bin Mahfouz sued in London on the basis that some 23 copies of Dr Ehrenfeld's book, entitled Funding Evil, How Terrorism is Financed - And How to Stop it, which was not published in Britain, got into the country after being sold by Internet booksellers, and because one chapter appeared on the Internet and could be accessed in England and Wales.

Dr Ehrenfeld, who was born in Israel but is an American citizen who lives and works in New York, refused to respond to the High Court case or acknowledge the jurisdiction of the High Court.

After Mr Justice Eady handed down his decision giving Sheikh bin Mahfouz summary judgment, she applied for the United States District Court for a declaration that the judgment was unenforceable in the United States, because English defamation law was incompatible with the First Amendment to the US Constitution, which guarantees freedom of speech and freedom of the press.

The District Court rejected her application on the grounds that it lacked personal jurisdiction over Sheikh bin Mahfouz.

Dr Ehrenfeld's appeal to the United States Court of Appeals for the Second Circuit to overturn that decision is now scheduled to be heard on November 8.

The American Centre for Democracy, of which Dr Ehrenfeld is director, said in a statement: "Dr Ehrenfeld's New York action seeks federal court protection of US First Amendment rights - for herself and other US investigative reporters who cover national security issues, including terror financing.

"The libel tourist phenomenon has to date successfully silenced many American authors and newspaper and book publishers.

"Dr Ehrenfeld's action could set a vital legal precedent, to protect US writers from them once and for all."

Her attorneys argue that although Sheikh bin Mahfouz has not attempted to enforce the High Court's judgment through the US courts, he has reserved the right to do so, and is thus trying to "chill" her right to free speech.

It is also argued that English defamation law in such a case is incompatible with US law, because of the wide differences between them.

Dr Ehrenfeld's application is based on the First Amendment to the US Constitution, and in the 14th Amendment, which prohibits any State making or enforcing "any law which shall abridge the privileges or immunities of citizens of the United States".

These provisions were used by the US District Court in the District of Columbia to affirm a refusal by the lower courts to enforce a High Court judgment in the case of Matusevich v. Telnikoff (877 F.Supp. 1 (DDC 195), despite the doctrine of comity, under which the decisions of foreign courts would normally be enforced in the US.

Dr Ehrenfeld is being supported by a friend of the court brief filed by a group of media and Internet publishers and interests comprising online shopping firm Amazon.com, the American Society of Newspaper Editors, human rights group Article 19, the Association of Alternative Newsweeklies, the Association of American Publishers, the Authors Guilt, digital rights group the Electronic Frontier Foundation, the European Publishers 'Council, the Australian newspaper group John Fairfax Holdings, the Newspaper Association of America, the Online News Association, NYP Holdings, publisher of the New York Post, the Radio-Television Directors' Association, the Reporters Committee for Freedom of the Press, Times Newspaper Ltd, publisher of The Times and The Sunday Times, and the World Press Freedom Committee.

She is also now being backed by the not-for-profit group 9/11 Families for a Secure America, which represents those who lost relatives in the terror attacks on the United States, or were exposed to toxic substances in their wake, and the pressure group .

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Michael.Dodd@pabusiness.co.uk