Fun in the Sum(mons): The Growing Problem on Libel Tourism

            Compared to many legal terms, libel tourism sounds fun. If I had to choose from libel tourism, a gravamen, being subrogated, or fighting my way through a bailiwick, I would go on a trip. However, as pleasant as libel tourism may sound, it is a serious issue, that has been attracting serious issue.

            The first step to dealing with the issue of libel tourism, is to know what exactly libel tourism means. According to Avi Bell of the Global Law forum, describes libel tourism as when “[someone] aggrieved by a publication that hurts their reputation, sue in a court outside their home country in order to increase the likelihood that they will win the case. [These] libel tourists are also referred to as defamation shoppers.” Geoffrey Robertson, a British/Australian lawyer and member of the Queen’s Council, first used the term “libel tourism” to describe this particular method of forum shopping.

            Libel law has always been a matter of controversy, particularly with where to draw the line. Too lax of defamation laws lead to a chilling effect that stops people from publishing truth; too strict of defamation laws give rise to falsehoods being maliciously spread with legal protection. Every country has solved these issues differently, and it is logical to assume that every legal system does not deal with libel the same way. The United States has fairly strong libel laws—supported by the First Amendment.

            American libel laws are considered to be stronger than most. In the US, ever since the trial of John Peter Zenger in 1735, truth of the speech should afford protection from litigation. Another major precedent in American libel law is New York Times v. Sullivan when the Supreme Court introduced the need of “actual malice” in libel cases. With all of this (and much more) legal doctrine, libel tourism is not a major issue in America, but it is definitely a problem for Americans.

            Libel tourism is a relatively new phenomenon; the vast majority of reported cases are from the last two decades. The locale for these cases is somewhat surprising. Libel tourism has one major beach resort and that is England. This is because the laws are extremely friendly to the plaintiffs (the defendant bears the burden of proof) and the predominance of the English language makes the ability to tie a case to the UK much easier than say, Thailand. Almost every case you see that deals with libel tourism is tried in England.

            There have been a few cases in particular that show the problems of libel tourism. One that is very well known is when Roman Polanski, a French-American sued Vanity Fair, and American magazine, in England for libel. Not only is this an instance of libel tourism, Polanksi fighting extradition to the United States for a sex crime, was allowed to give testimony in the case via video-link, so that he would not be arrested on entry into the United Kingdom. Furthermore, Polanski won the case. Graydon Carter, the chief editor of the magazine commented quite clearly that "[He finds] it amazing that a man who lives in France can sue a magazine that is published in America in a British courtroom.” Many of the cases follow similar patters: an English historian suing an American author for a book published in America partially over if the Holocaust occurred (Irving v. Lipstadt), and a Saudi financier of terrorism suing a New Jersey author over claims of aided terroism (Bin Mahfouz v. Ehrenfeld). The cases even become unbelievable; with the plaintiffs being people accused of genocide using human rights organizations.

            The third and biggest reason England is the destination of choice is the relative ease it is to get a case into the British system. In Bin Mahfouz v. Ehrenfeld, the book in question was not even published in England. Instead, the 23 copies that had been sold via the Internet overseas to England were enough to prove that Bin Mahfouz had a legitimate case for defamation in England.

            However, the English have decided to crack down on libel tourism in the UK. Proposed changes include creating statutory public-interest defenses, prohibiting claimants from suing multiple publications over the same material and establishing whether there is just cause to allow foreign claimants to sue in English courts. These changes, especially the establishing when foreign claimants can sue in England is to many, desperately needed. 

            I feel this seems like a fairly open and shut issue. In many of the cases, American citizens exercising their First Amendment rights are being punished abroad, when there is a tenuous at best, connection to that country. While there are a few laws in place in America to help protect its citizens (Free Speech Protection Act of 2008, 2009), only two states, Illinois and New York, have concrete protection against these claims. It is the opinion of some lawmakers and to a degree myself, that the American legal system should make more strides in protecting it citizens.

 In theory, this does seem like this is an issue that could be dealt with. However, one major hurdle in rectifying the issue is the fact that other countries legal systems are under question. As an American, I know that if some other country were to come in an attempt to change our legal system, we would not stand for it., England is taking it on itself to change the loopholes that are creating legal injustices.

            This was a new topic to me, and one that has been interesting. While there is not an incredible amount of debate, the stories and cases that come out of libel tourism are sometimes fascinating pieces of legal sleight of hand.

References

Bell, A. (n.d.). Libel Tourism: International Forum for Shopping Defamation Claims. Global Law Forum. Retrieved March 29, 2010, from www.globallawforum.org/UserFiles/puzzle22New(1).pdf

Carvajal, D. (n.d.). Britain, a destination for "libel tourism" - The New York Times. The New York Times - Breaking News, World News & Multimedia. Retrieved March 29, 2010, from http://www.nytimes.com/2008/01/20/technology/20iht-libel21.1.9346664.html

Editorial - Libel Tourism - NYTimes.com. (n.d.). The New York Times - Breaking News, World News & Multimedia. Retrieved March 29, 2010, from http://www.nytimes.com/2009/05/26/opinion/26tue2.html

Libel Tourism. (n.d.). Wikipedia. Retrieved March 29, 2010, from en.wikipedia.org/wiki/Libel_tourism

Press, T. A. (n.d.). firstamendmentcenter.org: news. firstamendmentcenter.org: Welcome to the First Amendment Center Online. Retrieved March 29, 2010, from http://www.firstamendmentcenter.org//news.aspx?id=22764&SearchString=libel_tourism

Roman Polanski - Wikipedia, the free encyclopedia. (n.d.). Wikipedia, the free encyclopedia. Retrieved March 29, 2010, from http://en.wikipedia.org/wiki/Roman_Polanski

Internet Content Control Filters in Public Libraries- Bradburn et al. v. North Central Regional Library District

Ever since Stanley v. Georgia, the Supreme Court has made it clear that the viewing of material not suitable for children in one’s home is completely protected under the First Amendment. However, a group of patrons in Wenatchee, Washington is looking to extend the sphere of protection outside the home—and in to public libraries. Currently this case is being decided by the Washington State Supreme Court, and will be ruled on by the Federal Court in Washington after it leaves the State level. It is reasonable believe that this could become a Supreme Court case.

            The entire issue of Internet Filters on computers in public library is due to a clause in the Children’s Internet Protection Act (CIPA). This legislation states that “No funds made available under this Act […], may be used to purchase computers used to access the Internet, or to pay for direct costs associated with accessing the Internet, for such library unless such library has in place a policy of Internet safety for minors […].” However, the CIPA legislation also has a provision that “An administrator, supervisor, or person authorized by the responsible authority […] may disable the technology protection measure concerned to enable access for bona fide research or other lawful purposes.” It is this clause that is stirring up the rural residents of Wenatchee, Washington. Bradburn et al. v. North Central Regional Library District is the first case in which the library is refusing to turn off the filters completely, electing only to unblock specific site on request.  

Fortunately, this debate does have legal precedent on which to guide it. In United States et al. v. American library Association, Inc., et al., the Supreme Court ruled that CIPA was constitutional “[b]ecause public libraries' use of Internet filtering software does not violate their patrons' First Amendment rights, CIPA does not induce libraries to violate the Constitution, and is a valid exercise of Congress' spending power.” However, it is made clear by Justice Kennedy that “[i]f, on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay, there is little to this case.” This implies when the library refuses to turn off the filter, the First Amendment may be being infringed upon.

            With this background, I believe the question becomes one of risk-taking. Is it worth the risk of minors being exposed to inappropriate material in a public library, either by walking past and seeing it, or through the filter being accidentally left off? My answer is no.

            There are two main reasons I feel a library should have the right to limit the extent it lowers its filters. First, many libraries may be designed in a way that the computers are in full view of everyone. While the Cohen standard does place the risk on the viewer of a potentially offending sight, a library, in my opinion, must be viewed as a governmental facility, and what people see on the monitors could be reflected back on the government the same way as if someone saw obscene material on a computer at the DMV.

            The second reason I tend to agree with the library in this case, is that while free speech is protected by the First Amendment, no where does the Constitution say that public libraries must provide Internet access to its patrons and allow them to look at material that may be patently offensive. I see Internet use as a privilege—much the same way as driving a car. While you can drive a car on government owned and maintained roads, there are restrictions that come along with that privilege. If restrictions are the price to pay for using government equipment, why does this not apply to government owned computers?

             Clearly I am taking a neoliberal stance on this issue—avoiding the risk of accidental exposure, relying on the judgment on government, and looking at the public’s interest—however, the libertarian view can also be taken. The filters block numerous sites that are not patently offensive. Patrons of the library should be able to access these sites, and no one from the librarians to the government wants to stop them from viewing them. However, this is not a policy decision this is a technology issue: the filters are just not good enough to block 100% of the inappropriate sites and 0% of the appropriate sites. This fact should be kept in consideration, knowing that the qualities of the filters will be improving all the time.

            Many will argue that the rights of the user should come before any accidental risk that may occur; that the government has no place to say what someone can and cannot view. However, this is not a case of someone saying something offensive or wearing provocative clothing. While it is true that the filter accidentally blocks many sites that are perfectly acceptable to be viewed, they still do serve a function. The viewing of potentially obscene material on government property, in a public place, where there is a reasonable probability that children will be present is a risk. This risk is one that I simply cannot take. 

Bradburn et al. v. North Central Regional Library District, No. 2:2006cv00327, Wash. Supreme Court, (Filed 16 Nov. 2006)- an ongoing case in the Washington Supreme Court.   

"CHILDREN'S INTERNET PROTECTION ACT." Internet Free Expression Alliance. N.p., n.d. Web. 11 Mar. 2010. .

"Children's Internet Protection Act." Federal Communications Commission (FCC) Home Page. N.p., n.d. Web. 11 Mar. 2010. .

LISNews. "Important developments in Bradburn library filtering case | Answerbag." Answer Bag. N.p., n.d. Web. 11 Mar. 2010. .

Schraum, Brian. "Libraries & First Amendment in Speech - What's on the Horizon." First Amendment Center Online. N.p., n.d. Web. 11 Mar. 2010. .