The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Magdy v. Awad, decided June 8 by a New York trial court:
Defendants [Abed Awad (Awad) and Awad & Khoury, LLP] represent [Plaintiff Mohamed] Magdy's wife, Dina Fouad (Fouad) in a pending divorce action against him entitled Fouad v Magdy (the matrimonial action). In August 2016, the trial court in the matrimonial action dismissed Fouad's complaint on the ground that Magdy had obtained an Egyptian divorce and Fouad appealed the decision. The First Department [of the Appellate Division of the New York courts] reversed and reinstated Fouad's complaint holding, inter alia, that the matrimonial action was commenced by Fouad before Magdy sought a revocable divorce under Egyptian law, and thus the New York trial court had jurisdiction …. Awad subsequently wrote an article commenting on the Appellate Division decision, entitled "NY Court Ruling Against a Muslim Man's Attempt to Unilaterally Divorce His Wife" (the article), which was published on [Harvard Law School's] ShariaSource blog on March 6, 2016….
Magdy sued, in relevant part, for libel, but the court rejected the claim:
[Magdy] alleges that the following statements are defamatory: "that [he] 'intended to circumvent the application of the more favorable financial rights [Fouad] would have under New York family law;' '[he] admitted he was having an extramarital affair;' '[he was] not interested in salvaging their marriage;' '[and he] convinced [Fouad] to return to Egypt.'" In his affidavit, Magdy complains that the Article goes into too much detail about his personal life and portrays him as an adulterer.
In reply, defendants argue that the proposed amended complaint should be dismissed because the statements Magdy cites from the article are not defamatory, but rather are true or non-actionable opinions.
A defamatory statement is "a false statement, which tends to expose the plaintiff to public contempt, hatred, ridicule, aversion or disgrace." To sustain a claim for defamation, the plaintiff must plead: "(1) a false statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one of the types of publications actionable regardless of harm." …
Magdy principally asserts that the article's statement that he "admitted that he was having an extramarital affair" is defamatory. While he acknowledges that he had a relationship and a child with another woman, he disputes that it was extramarital. He maintains that the relationship occurred while he was "technically divorced from [Fouad], during a period of time [when] New York did recognize the Egyptian divorce as valid."
A review of defendants' uncontroverted submissions, however, demonstrates that the aforementioned statement in the article is substantially true, insofar as the factual recitation in the Appellate Division decision reflects that Magdy engaged in an extramarital affair. Further, Fouad's divorce action was dismissed in August 2016 because, among other things, Magdy had procured an Egyptian divorce. A review of the Family Court Order reflects that Magdy is paying child support for a child born on XX/XX/2017. Thus, it appears, as argued by defendants, and as Magdy does not dispute, that the child was conceived prior to the dismissal of the matrimonial action, i.e., at a time when the matrimonial judge had not yet addressed the validity of the Egyptian divorce. In view of these undisputed facts, the statement that Magdy was "not interested in salvaging the marriage" is likewise substantially true, and not defamatory.
There is no proof supporting plaintiff's claim that the statement that Magdy "convinced [Fouad] to return to Egypt" is defamatory. Nor does this Court find that the statement is defamatory on its face…. Furthermore, as recited in the Appellate Division decision and the article, the parties separated in July 2015, at which time the wife and the two children moved to Egypt. Even if a publication is not literally or technically true in all respects, the absolute defense [of truth] applies as long as the publication is substantially true.
Further, the allegation, that Magdy "intended to circumvent the application of the more favorable financial rights [Fouad] would have had under New York family law" is not defamatory, but expresses an opinion that is accompanied by the recitation of the facts upon which it is based. The relevant excerpt of the article states the following:
["]A talaq [religious divorce] decree in hand, [Magdy] filed a cross motion to dismiss [Fouad's] New York divorce action, [Magdy] intending to circumvent the application of the more favorable financial rights [Fouad] would have under New York family law. Egyptian law, for example, does not recognize the equitable distribution of marital assets or New York-style post-divorce alimony[."]
… [I]n considering the content of the publication as a whole, as well as the context in which the Article was written, i.e., as a legal commentary of the matrimonial action, it is sufficiently apparent that the aforementioned statement complained of by Magdy simply expresses the author's opinion based on the facts presented.
In view of the foregoing, none of the statements in the article that are cited by Magdy are defamatory ….
Sounds right to me.