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World Press Freedom Committee submits statement to House Subcommittee on "libel tourism"

(WPFC/IFEX) - The following is a 12 February 2009 WPFC statement:

Statement of the World Press Freedom Committee

To the Subcommittee on Commercial and Administrative Law of the House Judiciary Committee in connection with Libel Tourism

The World Press Freedom Committee, a not-for-profit tax-exempt organization, appreciates the opportunity to present its views to the Subcommittee. We applaud the Congressional initiative represented by several bills that seek to address the phenomenon of libel tourism.

Libel tourism, whereby plaintiffs shop for the forum most likely to allow their libel claims irrespective of their nexus with that forum, has been used and abused by powerful and wealthy individuals to suppress news reports they find too critical.

While it is desirable that Congress reaffirms the U.S. policy against enforcing libel judgments that are repugnant to the First Amendment and adopts tools able to uphold that policy, any Congressional initiative must be careful to abide by the due process requirement of the U.S. Constitution, or lest prove ineffective. Following the New York Legislature's lead (1), the U.S. Congress is considering legislation to countenance the effects of libel tourism. We are aware of three bills from the 110th Congress.

Two of them, from the Senate (S. 2977) and the House (H.R. 5814), would have created a cause of action for U.S. citizens sued for defamation in a foreign court on the basis of content published in the U.S. against any physical or legal person that brought the foreign suit if the content at issue in the foreign proceedings would not result in liability under U.S. law. Under these two bills, if the cause of action is met, the plaintiff in the U.S. court would be entitled to seek (i) an order barring enforcement of any judgment resulting from the foreign lawsuit; (ii) damages in the amount of the foreign judgment, costs, including attorneys' fees, borne by the U.S. plaintiff in connection with the foreign lawsuit, and any harm caused by decreased opportunities to publish, conduct research or generate funding; and (iii) treble damages where the person that brought the foreign lawsuit has engaged in a scheme to suppress first amendment rights by discouraging the publication of an author's work.

The third bill, emanating from the House (H.R. 6146), prohibits any state or federal court from recognizing or enforcing a foreign defamation judgment based upon a publication concerning a public figure or a matter of public concern unless the state or federal court determines that the foreign judgment is consistent with the first amendment. This bill would likely extend the scope of the Supreme Court's decisions in New York Times Co. v. Sullivan (2) and its progeny. In New York Times, the Supreme Court 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." The Supreme Court's defamation jurisprudence would thereby become the threshold for the recognition and enforcement of foreign libel judgments. Some U.S. courts have already adopted that position and refused to enforce foreign libel decisions that were contrary to the First Amendment on the ground they were repugnant to the forum's public policy (3). This approach merits the Subcommittee's support.

The first two bills raise potential constitutional due process issues because they both purport to give jurisdiction to U.S. courts against defendants who may not have the necessary minimum contacts with the U.S. to be amenable in a U.S. forum. In International Shoe Co. v. Washington (4), the U.S. Supreme Court held that a court may exercise personal jurisdiction consistent with constitutional due process only if the defendant has "certain minimum contacts" with the relevant forum "such that the maintenance of the suit does not offend 'traditional notions of fair play and justice.'" Naturally, such concerns are absent when, as is often the case, the foreign libel judgment was in fact secured by a U.S. personality against a U.S.-based newspaper or journalist.

These two bills also raise substantive fairness issues because the cause of action they create is merely based on the fact that the foreign libel law differs from U.S. defamation law. Thus, irrespective of the legitimacy of his or her foreign libel action, a foreign plaintiff could be subject to a lawsuit in the U.S. and potentially liable for damages merely because a U.S. court could conclude that a publication made abroad regarding a plaintiff abroad would not be actionable under U.S. law. U.S. judges may find it extremely difficult to enforce such provisions.

Libel tourism plaintiffs are able to obtain foreign default libel judgments because defendants are often financially unable to defend the action abroad. One remedy for that situation would be for federal legislation to authorize an award of attorneys' fees to the judgment debtor who prevailed in an enforcement action, declaratory judgment or other proceeding in connection with the foreign judgment.

(1) See Yasmine Lahlou, Libel Tourism: A Transatlantic Quandary, to be published in 2009 in the J. INT'L MEDIA & ENT L. for a discussion of New York's Libel Terrorism Protection Act.
(2) 376 U.S. 254 (1964).
(3) See, e.g., Bachchan v. India Abroad Publications, 154 Misc.2d (N.Y. Sup. 1992).
(4) 326 U.S. 310, 315 (1945).

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