[*228] [**661]COUNSEL: Chalos English & Brown, New York City,
for plaintiff.
Lankenau Kovner & Bickford, New York City, for
defendant.
[*229]JUDGE: SHIRLEY FINGERHOOD, Justice:
Although the cases interpreting constitutional limitations on libel actions are
legion, this is apparently the first time that a New York court has been asked
to apply those limitations to bar the enforcement of a foreign judgment.
The judgment was granted in an action brought in the High Court of Justice in
London, England by an Indian national against the New York operator of a news
service which transmits reports only to a news service in India. The story held
to be defamatory was written by a reporter in London, wired by defendant to the
news service in India which sent it to newspapers there. It was reported in two
Indian newspapers copies of which were distributed in the United Kingdom.
The story was also reported in an issue of “India Abroad,”
defendant’s New York newspaper. An edition of “India Abroad” was
printed and distributed in the United Kingdom by defendant’s English
subsidiary, India Abroad (U.K.) and a claim based on that distribution was
asserted in the lawsuit approximately a year after its commencement.
The wire service story transmitted by defendant on January 31, 1990 stated that
Dagens Nyjeter, a Swedish daily newspaper, (hereafter “DN”) had
reported that Swiss authorities had frozen an account belonging to plaintiff to
which money was transferred from a coded account into which commissions paid by
Bofars were deposited. Bofars is a Swedish arms company, which some time before
had been charged with paying kickbacks to obtain a large munitions contract
with the Indian government. (Exhibits J & P to Raju affidavit) Plaintiff’s
name had previously been mentioned in connection with the scandal in a variety
of Indian and other publications. (Raju aff., Exhs. C-E) On February 3, 1990, defendant’s
wire service transmitted plaintiff’s denial that he was the holder of such a
bank account or that he or any member of his family had any connection with the
Bofars contract. (Exhibit S to Raju aff.)
Plaintiff brought an action against DN in London at the same time as it sued
India Abroad. DN settled the claim against it by paying a sum of money and
issuing an apology saying that it had been misled by [**662] Indian government
sources. India Abroad did not apologize but did report DN’s settlement and
apology. (Exhibit Y to Raju aff.)
The jury assessed 40,000 pounds in damages for the wire service story together
with attorney’s fees against India Abroad, Inc. and its reporter, Rahul [*230]
Bedi. As authorized by Section 5303 of New York’s Civil Practice Law and Rules
(CPLR) plaintiff seeks to enforce that judgment by motion for summary judgment
in lieu of complaint. (A 40,000 pound judgment granted against India Abroad,
U.K. for its distribution of the English edition of “India Abroad” is
not directly at issue here.)
Entry of the judgment is opposed on the ground that it was imposed without the
safeguards for freedom of speech and the press required by the First Amendment
to the United States Constitution and Article I, Section 8 of the Constitution
of the State of New York. Defendant asks this court to reject the judgment as
repugnant to public policy, a ground for nonrecognition of foreign judgments
under CPLR 5304(b)(4).
CPLR § 5304 is comprised of two parts: section (a) which is explicitly mandatory
and precludes recognition of foreign judgments on certain constitutional
grounds, i.e. if the procedures pursuant to which a foreign judgment was
rendered are not compatible with the requirements of due process of law or when
the foreign court did not have personal jurisdiction over the defendant; and
section (b) which provides that a foreign judgment “need not be recognized
if,” inter alia, “the cause of action on which the judgment is based
is repugnant to the public policy of this state.” (Subsection 4)
It is plaintiff’s position that the public policy exception to the rule that
foreign judgments are afforded comity is narrow and inapplicable here. He
asserts that this court should not reexamine the claim for which the judgment
was awarded to determine whether it would be culpable under United States
precedents. Pointing to CPLR 5304(b)(4)’s reference to “causes of
action” rather than judgments, he argues that libel causes of action are
cognizable in New York. If that subsection is deemed to refer to judgments as
well as causes of action, plaintiff asks this court to exercise its discretion
to recognize the judgment in view of the common antecedents of the law of Great
Britain and that of the United States.
It is doubtful whether this court has discretion to enforce the judgment if the
action in which it was rendered failed to comport with the constitutional
standards for adjudicating libel claims. In his commentary on CPLR § 5304,
David D. Siegel notes that one of the grounds for nonrecognition of a foreign
judgment in Section (b), a lack of fair notice in sufficient time to enable a
defendant to defend, “goes to the roots of due process.” (Siegel,
Practice Commentaries, McKinney’s Cons. Laws of N.Y., Book 7B, CPLR C5304:1, at
493.) For [*231] that reason, he suggests that a refusal to recognize a foreign
country judgment for lack of fair notice may be constitutionally mandatory,
rather than, as subdivision (b) would have it, discretionary. (7B McKinney’s
Consolidated Laws, Practice Commentaries [5304:1] ) Similarly, if, as claimed
by defendant, the public policy to which the foreign judgment is repugnant is
embodied in the First Amendment to the United States Constitution or the free
speech guaranty of the Constitution of this State, the refusal to recognize the
judgment should be, and it is deemed to be, “constitutionally
mandatory.” Accordingly, the libel law applied by the High Court of
Justice in London in granting judgment to plaintiff will be reviewed to
ascertain whether its provisions meet the safeguards for the press which have
been enunciated by the courts of this country.
Both parties submitted descriptions of the defamation laws of England in
affidavits and affirmations by English solicitors and barristers with copies of
relevant statutes, rules and case laws. Pursuant to CPLR ¤ 4511 the court will
take judicial notice of the law as set forth in the affirmations of Sarosh
Zaiwalla and Charles Anthony St. John Gray, plaintiff’s solicitor and
barrister, and Geoffrey Robertson, Q.C., for the defendant. The instructions
given to the jury by the presiding judge at [**663] the trial of plaintiff’s
claim, Mr. Justice Otten, have also been considered. (Exhibits to Handman
further aff.; Exhibits to Zaiwalla aff.)
Under English law, any published statement which adversely affects a person’s
reputation, or the respect in which that person is held, is prima facie
defamatory. (See Justice Otten’s instructions to the jury deciding Bachchan’s
action.) Plaintiffs' only burden is to establish that the words complained of
refer to them, were published by the defendant, and bear a defamatory meaning.
If, as in the present case, statements of fact are concerned, they are presumed
to be false and the defendant must plead justification for the issue of truth
to be brought before the jury. An unsuccessful defense of justification may
result in the award of aggravated damages. For, in the language of Lord
Hailsham of the House of Lords in Broome v. Cassell & Co.(1972) 1 All ER
1075 at 1081: “Quite obviously, the award must include factors for
injury…. the absence of apology, or the reaffirmation of the truth of the
matter complained of …”
English law does not distinguish between private persons and those who are
public figures or are involved in matters of public concern. None are required
to prove falsity of the libel or fault on the part of the defendant. No
plaintiff is required [*232] to prove that a media defendant intentionally or
negligently disregarded proper journalistic standards in order to prevail.
The defendant has the burden of proving not only truth but also of establishing
entitlement to the qualified privilege for newspaper publications and
broadcasters provided by the 1952 Defamation Act Section 7(3) where “the
matter published is … of public concern and … its publication … is …
for the public benefit.” [FN1]
FN1. That defense is unavailable if the plaintiff requests that explanation or
contradiction be published and defendant refuses to do so. Even reports of
proceedings of a public nature—of Parliament and of the courts are protected
by privilege only “provided they are neither inaccurate nor unfair to the
plaintiff.” Duncan & Neill § 14.29, Exhibits to Gray aff. pp. 85-88.
As stated by Mr. Gray, plaintiff’s barrister,
“[t]he difference between the American and English jurisdictions
essentially comes down to where the burden of proof lies….” (Gray aff.
pp. 15-16)
Defendant argues that the defamation law of England fails to meet the
constitutional standards required in the United States because plaintiff, a
friend of the late prime minister of India Rajiv Ghandi and the brother and
manager of a movie star and former member of Parliament, is a public figure. In
New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11
L.Ed.2d 686 (1964), the Supreme Court of the United States ruled that in order
to recover damages for defamation a public official must prove by clear and
convincing evidence that the defendant published the allegedly defamatory
statement with “ ‘actual malice’—that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.” That
burden of proof was placed on public figures who sued media defendants in
Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).
However, it seems neither necessary nor appropriate to decide whether
plaintiff, an Indian national residing in England or Switzerland, is a public
figure. Instead, the procedures of the English Court will be compared to those
which according to decisions of the United States Supreme Court are
constitutionally mandated for suits by private persons complaining of press
publications of public concern.
In Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41
L.Ed.2d 789 (1974) the Court held that a private figure could not recover
damages for defamation without showing that a media defendant was at fault,
leaving the individual States to “define for themselves the appropriate
standard of liability for a publisher or broadcaster of defamatory falsehood
injurious to a private individual.”
[*233] Reviewing the Supreme Court’s decisions enunciating constitutional
limitations on suits for defamation, Justice O’Connor stated [**664] in
Philadelphia Newspapers v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 1563, 89
L.Ed.2d 783:
One can discern in these decisions two forces that may reshape the common-law
landscape to conform to the First Amendment. The first is whether the plaintiff
is a public official or figure, or is instead a private figure. The second is
whether the speech at issue is of public concern. When the speech is of public
concern and the plaintiff is a public official or public figure, the
Constitution clearly requires the plaintiff to surmount a much higher barrier
before recovering damages from a media defendant than is raised by the common
law. When the speech is of public concern but the plaintiff is a private
figure, as in Gertz, the Constitution still supplants the standards of the
common law, but the constitutional requirements are, in at least some of their
range, less forbidding than when the plaintiff is a public figure and the
speech is of public concern.
The issue in Hepps was the validity under the First Amendment of the common-law
presumption that a defamatory statement is false, pursuant to which the burden
of proving truth is on the defendant. Finding plaintiff to be a private figure
and the subject of the newspaper articles in issue to be of public concern, the
Court held that, “the common-law’s rule on falsity—that the defendant
must bear the burden of proving truth—must … fall here to a constitutional
requirement that the plaintiff bear the burden of showing falsity, as well as
fault, before recovering damages.” (475 U.S. at 776, 106 S.Ct. at 1563)
It is obvious that defendant’s publication relates to a matter of public
concern. The affidavits and documents submitted by both parties reveal that the
wire service report was related to an international scandal which touched major
players in Indian politics and was reported in India, Sweden, the United
States, England and elsewhere in the world. Consider the revelation of Mr.
Zaiwalla, who had the conduct of the action resulting in the English judgment,
that it was given priority over other defamation actions waiting to be tried
because “the Indian General Election was imminent and the Bofars affairs
and the plaintiff’s long-time family friendship with Mr. Rajiv Gandhi, the
former prime minister of India…. and leader of the main opposition party….
were being used as electoral weapons in India.” (Zaiwalla aff. pp. 4-5)
Mr. Justice Otten, in his instructions, referred to the political context of
the story by suggesting to [*234] the jury that it “ignore the
complexities” of the Indian politics and political parties which were the
background of the news stories. (Transcript, p. 6, Exhibit B, Handman further
aff.)
Placing the burden of proving truth upon media defendants who publish speech of
public concern has been held unconstitutional because fear of liability may
deter such speech.
Because such a 'chilling' effect would be antithetical to the First Amendment’s
protection of true speech on matters of public concern, we believe that a
private-figure plaintiff must bear the burden of showing that the speech at
issue is false before recovering damages for defamation from a media defendant.
To do otherwise could ‘only result in a deterrence of speech which the
Constitution makes free.’ (citation omitted) Philadelphia Newspapers, Inc. v.
Hepps, supra at 777, 106 S.Ct. at 1564, 89 L.Ed.2d 783.
The “chilling” effect is no different where liability results from
enforcement in the United States of a foreign judgment obtained where the
burden of proving truth is upon media defendants. Accordingly, the failure of
Bachchan to prove falsity in the High Court of Justice in England makes his
judgment unenforceable here.
There is, of course, another reason why enforcement of the English judgment
would violate the First Amendment: in England, plaintiff was not required to
and did not meet the “less forbidding” constitutional requirement
that a private figure show that a media defendant was at fault.
New York’s standard for liability in actions brought by private persons against
the press is set forth in Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196,
[**665] 199, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975): “[W]here the content of
the article is arguably within the sphere of legitimate public concern, which
is reasonably related to matters warranting public exposition, the party defamed
may recover; however, to warrant such recovery he must establish, by a
preponderance of the evidence, that the publisher acted in a grossly
irresponsible manner without due consideration for the standards of information
gathering and dissemination ordinarily followed by responsible parties.”
As stated above, the English courts do not require plaintiff to prove that a
press defendant was at fault in any degree. Bachchan certainly did not
establish, as required by Chapadeau, that defendant was grossly irresponsible,
a difficult task, where defendant disseminates another’s news report. See Rust
Communication Group v. 70 State St. Travel Service, 122 A.D.2d 584, 504
N.Y.S.2d 927 (4th Dept.1986).
[*235] It is true that England and the United States share many common law
principles of law. Nevertheless, a significant difference between the two
jurisdictions lies in England’s lack of an equivalent to the First Amendment to
the United States Constitution. The protection to free speech and the press
embodied in that amendment would be seriously jeopardized by the entry of
foreign libel judgments granted pursuant to standards deemed appropriate in
England but considered antithetical to the protections afforded the press by
the U.S. Constitution.
For the above stated reasons, the motion for summary judgment in lieu of
complaint is denied.