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Khalid Bin Mahfouz | The events of September 11th 2001 and their aftermath | Other issues
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UK libel actions
Why Did Mr. Bin Mahfouz bring libel actions in England?
A : Though citizens of Saudi Arabia, Khalid Bin Mahfouz and his family have maintained residences and held business and investment interests in England for decades. The Bin Mahfouz family are well known in business and financial circles in London, both for their international business activities and as the former owners and operators of the National Commercial Bank of Saudi Arabia, that country's largest bank, prior to the sale of their interests in 1999.
In the wake of the events of September 11, 2001, the Bin Mahfouz family were subject to a variety of false allegations linking the family and their bank to the funding of terrorism, primarily through their support of Islamic charities. The intensive "war on terror" and terror funding conducted by the United States and many other countries throughout the world made legal confrontation of these claims a practical necessity for the Bin Mahfouz family. However unfounded, these accusations of complicity with terrorism are profoundly damaging and disruptive to international business activities. If true, the allegations would mean that the Bin Mahfouz family were criminals and enemies of the United Kingdom and many other countries, subject to a range of sanctions, including regulatory seizure of assets and criminal prosecution.
To dispel these extremely damaging allegations, Mr. Bin Mahfouz, his two sons, and an oil company based in London that they owned brought libel actions in London against six publications. The Bin Mahfouz parties were fully successful in every case. In fact, no defendant ever produced any evidence to support any of the allegations and all defendants except Dr. Rachel Ehrenfeld retracted and apologized before trial. These defendants included Associated Newspapers, Inc. and Cambridge University Press, large, well funded organizations who, together with their prominent libel counsel, concluded that these allegations were baseless. Dozens of other media outlets that had printed these allegations voluntarily retracted and apologized without litigation.
Why did the English libel court exercise jurisdiction over Dr. Rachel Ehrenfeld?
A: In her work Funding Evil, Dr. Ehrenfeld made particularly defamatory claims that Mr. Bin Mahfouz and other prominent citizens of Saudi Arabia were funders of terrorism. Though the book was published primarily in the United States, the offending chapter was made available on the ABCnews.com website that was viewed by over 100,000 English viewers per month. The book was also sold into England over the internet. Though the counsel for Mr. Bin Mahfouz had no way of knowing total English sales, he was able to confirm the sale of at least 23 books to third parties in England.
Dr. Ehrenfeld has publicly claimed that she never intended the book to be sold in England, and that the large bulk of the publication occurred in the United States. If so, she could have raised a substantial challenge to the exercise of jurisdiction. Prospective defendants have the right to challenge the Court's jurisdiction in a threshold proceeding and argue that another country's courts would provide a more appropriate forum. In determining whether to accept jurisdiction, the English courts will consider a number of relevant factors-the jurisdictional contacts of all parties, the location of witnesses, convenience, expense, and the scale of publication occurring in different possible jurisdictions-to determine where "the case may be tried most suitably for the interests of all the parties and for the ends of justice." (See Chadha v. Dow Jones & Co [1999] E.M.L.R. 724, 730 (SA61) (quoting Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460)). Dr. Ehrenfeld declined, however, to raise a challenge to English jurisdiction, and accepted a default judgment.
Dr. Ehrenfeld could also have avoided the risk of English jurisdiction by specifically excluding England from those territories for which authority to publish was given in her contract with her publisher. The claimant has the burden to prove that the defendant authorized publication in the English jurisdiction. A U.S. author would not be held liable by the English Court for subsequent publication of a book in England by the publisher, whether deliberate or accidental, if no authority for publication of the book in England had been given.
What was the judgment and order entered against Dr. Ehrenfeld?
A: The Court issued a Declaration of Falsity in favour of Mr Bin Mahfouz and his sons, which reviewed and found baseless the defamatory claims made in Funding Evil, after conducting a detailed examination of pre-trial correspondence from Dr. Ehrenfeld's English counsel and evidence that had been submitted by the Claimants. Mr Justice Eady noted that the Claimants have "addressed the potential merits, such as they may be, of a potential plea of justification....they are not content simply to sit back upon the presumption of falsity."
The Court also awarded Mr. Bin Mahfouz and his two sons £10,000 each in damages against Dr. Ehrenfeld and her publisher. The Court subsequently issued an award against Dr. Ehrenfeld and her publisher for attorneys fees and costs in the amount of £114,000. No attempt has ever been made to enforce these judgments.
The Court further enjoined Dr. Ehrenfeld from repeating her libel in England but imposed no burdens on her speech in the United States. Dr. Ehrenfeld, in fact, used the English action to publicize a new edition of her book which declares on its cover that it is "The book the Saudis don't want you to read."
The Court did not order that Dr. Ehrenfeld's book be destroyed, as has been suggested in various commentaries on this matter. Nor does the Court's judgment in any way restrict Dr. Ehrenfeld's ability to travel to the UK or in the European Community, as she has sometimes claimed.