Libel Tourism
The resources on this page provide information about state and federal legislative efforts to combat libel tourism.
Libel tourism refers to a tactic where plaintiffs file a libel suit in a foreign jurisdiction (where they have little or no connection) in order to take advantage of that foreign jurisdiction’s law and procedure. England, in particular, has been used for libel tourism because English libel law is very favorable to plaintiffs and the courts can exercise jurisdiction over foreign defendants if there has been some publication in England.
MLRC recently filed comments with the UK Parliament's select committee on Culture, Media and Sport expressing our concerns with "libel tourism" and English defamation law. The submission is available here.
The issue recently gained a great deal of attention when American author and researcher Rachel Ehrenfeld was sued in London by Khalid Bin Mahfouz, a Saudi Arabian businessman, over her book “Funding Evil: How Terrorism is Financed and How to Stop It.” Her book was not published in England, but the plaintiff claimed that about 20 copies of her book had been purchased there. Ehrenfeld chose not to defend the lawsuit in England and instead brought an action in the United States seeking to declare the English judgment unenforceable.
New York State’s highest court suggested that the problem of libel tourism was best addressed by new legislation. Several states responded by enacting new laws that make foreign libel judgments unenforceable unless compliant with the First Amendment. In addition, bills were proposed in Congress that would create a new cause of action against the foreign libel plaintiff and provide for damages if the foreign plaintiff acted to deprive an American of his or her right to free speech.
Federal Bill
On August 10, 2010, President Obama signed into law the “Securing the Protection of our Enduring and Established Constitutional Heritage Act,” or “SPEECH Act”.
The SPEECH Act provides that a domestic court shall not recognize or enforce a foreign judgment for defamation unless the court determines that:
“(A) the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located; or
(B) even if the defamation law applied in the foreign court’s adjudication did not provide as much protection for freedom of speech and press as the first amendment to the Constitution of the United States and the constitution and law of the State, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of the State in which the domestic court is located.”
Defamation is defined as:
“any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.”
The SPEECH Act also provides that foreign defamation judgments cannot be enforced in U.S. court unless it is determined that “the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.” The bill allows the party opposing recognition or enforcement of the judgment reasonable attorney’s fees if the party prevails.
Moreover, the SPEECH Act extends to enforcement of judgments involving third-party content on the Internet, declaring that a domestic court “shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.”
The SPEECH Act also creates a declaratory judgment action for “a declaration that the foreign judgment is repugnant to the Constitution or laws of the United States.”
Jurisdictionally, the bill provides that any action to enforce a foreign defamation judgment can be removed from state to federal court under 28 U.S.C. §1441 “without regard to the amount in controversy between the parties.”
State Statutes
Utah
78B-5-320, 78B-5-321 Nonrecognition of Foreign Judgments
Statute available here.
Summary: The Utah libel tourism bill was introduced on January 20, 2010 by state representative Julie Fisher, R-Fruit Heights, a former television broadcaster. It unanimously passed in the state house on February 9 by a vote 73-0. The bill was approved by the state senate's Judiciary, Law Enforcement, and Criminal Justice Committee on Feb. 22 and was signed into law by Governor Gary R. Herbert on March 23, 2010. Under the statute a foreign libel judgment may be nonrecognizable if the “libel law applied in the foreign court’s adjudication process did not provide at least as much protection for freedom of speech and press as would be provided by the United States Constitution and the Utah Constitution.”
Maryland
HB 193 available here.
Summary: The Maryland statute amends state law on recognition of foreign judgments to provide that foreign defamation judgments need not be enforced unless the court determines that the foreign law provided at least as much protection for freedom of speech and press in that case as would be provided by the United States Constitution and the State Constitution. The state long-arm jurisdiction statute is amended to provide for personal jurisdiction over foreign libel plaintiff for a declaratory judgment action of non-enforceability. The statute also makes certain foreign judgments against the providers of interactive computer services unenforceable unless compliant with Section 230 of the Communications Decency Act. Section 230 immunizes interactive computer services, such as websites and blogs, from defamation and related liability for content created by third parties. The libel tourism bill was introduced in the state Senate in January 2010 by State Senator Samuel Rosenberg D-Baltimore. The bill passed in the House by a vote of 130-0 in March; and in the Senate by a vote of 47-0 in April. Governor Martin O'Malley signed the bill on May 20, 2010.
Florida
Fla. Statutes 55.605 (2)(h); 55.6055
Enacted May 2009.
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55.605 (2)(h) available here.
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Summary: Same as the New York statute.
Illinois
735 ILL. COMP. STAT 5/12-621 (b)(7) (2009); 735 ILL. COMP. STAT. 5/2-209 (b-5) (2009).
Enacted August 2008
Summary: Same as the New York statute.
New York “Libel Terrorism Protection Act”
N.Y. C.P.L.R. 302(d); N.Y. C.P.L.R. § 5304 (b)(8)
Enacted May 1, 2008
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State press release here.
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Summary: Amends state law on recognition of foreign judgments to provide that foreign defamation judgments need not be enforced unless the court determines that the foreign law provided at least as much protection for freedom of speech and press in that case as would be provided by the United States Constitution and the State Constitution. The state long-arm jurisdiction statute is amended to provide for personal jurisdiction over foreign libel plaintiff for a declaratory judgment action of non-enforceability.
California – SB 320
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Bill Status: Introduced in February 2009. Passed the Senate Judiciary Committee on a 5-0 vote and the full Senate 38-0. Signed by Governor Schwarzenegger on October 12, 2009. Current information available here.
Summary: Same as the New York law. The bill would amend the state’s Uniform Foreign-Country Money Judgments Act so that foreign defamation judgments need not be recognized if obtained under law that provides less protection for speech than the First Amendment and California state constitution. The bill also provides for a declaratory judgment action to obtain an order that the foreign judgment is unenforceable.
Pending Bills
Arizona SB 1268
Bill available here.
Bill status page here.
Summary: The Arizona bill was introduced in January 2010 by Sen. Jonathan Paton, R-Tucson. In February the State Senate passed the bill by a vote of 30-0. The bill provides that “A court of this state shall not recognize a foreign country judgment if the cause of action was based on a claim of defamation unless the court first determines that the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by both the United States and Arizona Constitutions.”
Another libel tourism bill introduced in the state senate yet to be acted upon combines the limitation on foreign judgments with limitations on the use of foreign jurisprudence in Arizona courts. SB 1396,introduced by Sen. Chuck Gray, R-Mesa, would bar state courts from citing or relying on the laws or policies of foreign nations, international courts, any international criminal courts and the United Nations.
New Jersey – S16
Summary: Amends state law on enforcement of foreign country money-judgments to provide that such judgments need not be recognized unless the defamation law applied in the foreign country provides at least as much protection for freedom of speech and press as is provided by the Constitutions of the United States and New Jersey.
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