The U.S. House of Representatives passed a bill on September 27 that would change federal law to prohibit U.S. enforcement of certain foreign defamation judgments. The legislation moved on to the Senate on September 29. The bill is designed to protect Americans from “libel tourism,” a type of forum shopping in which plaintiffs choose to file libel suits in foreign jurisdictions that are more likely to produce a favorable result for them.
H.R. 6146, authored by Rep. Steve Cohen (D-Tenn.), states that “The purpose of this Act is to protect the right to freedom of speech under the First Amendment to the Constitution of the United States from the potentially weakening effects of foreign judgments concerning defamation.” It passed in the House by a unanimous voice vote.
The proposed legislation would add a new section to Title 28 of the United States Code, which governs the judiciary and judicial procedure. “Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment concerning defamation unless the domestic court determines that the foreign judgment is consistent with the [F]irst [A]mendment to the Constitution of the United States,” the bill states.
“While our Nation’s courts will generally enforce foreign judgments as a matter of comity, comity does not require that courts enforce foreign judgments that are repugnant to our Nation’s fundamental constitutional values, in particular its strong protection of the right to freedom of speech,” the preamble to the bill continues.
“Our legislation will codify the principle that, while U.S. courts will normally enforce the judgments of foreign courts, they should not do so when foreign judgments undermine our Constitution,” Cohen said while introducing the bill on the floor of the House of Representatives on May 22, according to the Congressional Record. “This is a straightforward solution that is designed to discourage foreign defamation plaintiffs from filing suit against American authors and publishers in foreign courts and instead encourage them to tile [sic] suit in the United States.”
The bill is similar to a law enacted by the state of New York in April 2008. (See “New York Law Protects Authors from Libel Tourists” in the Summer 2008 Silha Bulletin.) When New York governor David Patterson signed that bill, he noted that ultimately Congress would need to address the issue on a national level.
According to a September 27 press release from Cohen’s office, libel tourism was brought to Cohen’s attention as a result of the New York law and the case Ehrenfeld v. bin Mahfouz, 518 F.3d 102 (2d Cir. 2008), in which a federal court refused to enter a declaratory judgment holding that a libel verdict entered in the United Kingdom against U.S. author Rachel Ehrenfeld was unenforceable in the United States. (See “New York High Court Rules in Libel Tourism Case” in the Winter 2008 Silha Bulletin.)
“As our world becomes more and more interconnected, we need new laws to ensure that Americans’ First Amendment rights won’t be hindered by more restrictive, foreign mandates,” Cohen said in the September 27 press release. “I am proud that we were able to pass this common sense legislation to protect Americans from foreign courts impeding on their rights to free speech and freedom of the press this year, and I hope that the Senate realizes the urgency with which we must enact this law.”
In a September 29 press release, Association of American Publishers President Pat Schroeder thanked members of the House for focusing on libel tourism. “Libel tourism is an insidious threat,” Schroeder said. “It seeks to intimidate and silence American authors and deprive us of vital information on issues of public concern.”
The bill was the narrower of two bills in the House designed to protect Americans from defamation judgments entered in other countries. The other, H.R. 5814, officially titled the Free Speech Protection Act of 2008, would have allowed a party to collect civil damages if it could prove that an opposing group brought a foreign defamation lawsuit with the intentional goal of suppressing First Amendment rights.
“[Cohen’s bill] is a benchmark,” James Park, legislative counsel for Cohen, said in a September 30 story posted on the Web site for the Reporters Committee for Freedom of the Press. “We can add to it over time.”
An October 6 post on the Web site The Terror Finance Blog criticized the passage of the less protective bill. “Under this bill, academics and researchers would still have to endure a farcical trial in a foreign court before they could bring an action here to block recognition or enforcement of the foreign judgment,” the post’s author Aaron Meyer wrote.
Peter King (R-N.Y.), the author of H.R. 5814, stated in the Congressional Record for September 27 that, although H.R. 6146 was a “first step in the right direction,” because the bill does not provide for civil damages, “it doesn’t put an end to the problem and doesn’t provide any deterrence from these suits being filed in the first place.” King also said that he hoped during the next session members of Congress “can sit down together and craft a bill that we can all agree on and that will solve this problem once and for all.”
The New York Times published an editorial on September 29 praising the passage of the bill by the House and calling for swift action by the Senate. The article said that although the protections offered by the bill could have been broader the most important thing was to “prevent foreign libel judgments from eroding free-speech protection in the United States.”
“Now, the Senate needs to act,” the editorial said. “Senators Charles Schumer, Democrat of New York; Arlen Specter, Republican of Pennsylvania; and Joseph Lieberman, independent of Connecticut, should work to get Mr. Cohen’s bill through their chamber before Congress leaves town.”
While Congress pondered the matter on a federal level, Illinois Gov. Rod Blagojevich signed a bill into law on August 18 declaring, in part, that a “foreign judgment need not be recognized if … the cause of action resulted in a defamation judgment obtained in a jurisdiction outside the United States, unless a court sitting in this State first determines that the defamation law applied in the foreign jurisdiction provides at least as much protection for freedom of speech and the press as provided for by both the United States and Illinois Constitutions.”
The law, which modifies 735 Ill. Comp. Stat. 5/2-209 and 5/12-621, was introduced on February 15 by state Sen. Emil Jones Jr. It passed both the Illinois Senate and House unanimously in April and May, respectively, and became effective upon the governor’s signing.
New Fee Arrangements Make British Libel Suits More Difficult to Defend
Meanwhile, The Guardian of London reported in an October 9 story that media companies embroiled in libel battles in England are becoming less willing to fight defamation court cases all the way to a verdict and instead are increasingly attempting to settle the cases.
The article cited research by the Reuters-owned Sweet & Maxwell indicating that out of more than 250,000 online law reports and transcripts, 61percent of reported defamation cases over the 12 months until May 2008 resulted in a settlement, up from 21 percent of cases in the same period two years ago.
The story also discussed the increasing use of Conditional Fee Agreements (CFAs) by litigants in defamation cases, which enables lawyers to take libel cases against newspapers on a no-win, no-fee basis, and if victorious they can charge the losing side up to twice their normal fee at a rate of up to 800 British pounds per hour.
“There is no doubt that the use of CFAs is having a chilling effect on the media, and the whole system needs a thorough review,” said Caroline Kean, a litigator for the British law firm Wiggin, according to The Guardian. “Defendants are choosing the ground upon which they will fight a case to trial much more carefully.”
– Jacob Parsley
Silha Research Assistant