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
I should think that, even without the (not-yet-passed) Free Speech Protection Acts of 2008 and 2009, the First Amendment as applied to the states by the Fourteenth Amendment would ban enforcement of foreign libel judgments. When Sullivan tried to sue in domestic courts for libel, he was rebuffed and told the First Amendment promotes "uninhibited, robust, and wide-open" public debate. This is not specific to libel. Rather, the "freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.'" So, I would think an action in domestic courts to enforce a foreign libel judgment would fail just as surely as a domestic suit for libel.
ReplyDeleteThe case "Yahoo! Inc. v. La Ligue Contre Le Racisme" supports this: the Ninth Circuit failed to enforce a French judgment against Yahoo for selling material denying the Holocaust, stating that if anyone actually tried to enforce it, it would be void on First Amendment grounds. I think the same principles would apply to libel suits.
Thus, there is no way to enforce the foreign libel judgment in any domestic court. If the defendant ever goes to Europe, Britain might try to enforce the action there. That is one of the risks of international travel: "While in a foreign country, you are subject to its laws." However, here in America, the courts can, should, and in all likelihood will stand up for freedom of speech.
I would say that a few things should be pointed out here: when you say that the US has libel laws that are "stronger than most," I assume that you're referring to the fact that they protect the author with truth as a defense, which is not particularly common.
ReplyDeleteLibel tourism is indeed an issue, especially with the Internet (as you somewhat noted, libel tourism doesn't usually succeed if the material wasn't originally distributed to the country the suit is brought in, but this is more common with the Internet). However, Evan makes a good point that most such judgments are not possible to enforce as long as the defendant doesn't actually ever travel to the country in question (or countries that would extradite for such offences, or have assets in such countries, etc.). While that provides some measure of relief, it is pretty slight.
On the other hand, this issue doesn't appear to be quite as easy to resolve as you propose: while I would agree that other countries shouldn't necessarily be able to force their own laws on ours, I see no particular reason our country should be able to force our laws or views on their country. If something is indeed a crime (or tort) in their country, shouldn't someone be able to go to court to have it stopped?
So, I would agree that the practice of libel tourism is dangerous, and likely to become more of a problem in the future, but I would tend to believe that any solution is likely to take some time to work out.
Andy