A Federal Law is Needed to Deter Libel Tourism.
By Daniel J. Kornstein

On June 15, the U.S. House of Representatives passed legislation to prohibit recognition and enforcement of foreign defamation judgments (H.R. 2765). Rep. Steve Cohen (D-TN), who sponsored the bill, stated the bill was the "strongest constitutionally sound policy in response to libel tourism."

But Cohen’s bill is insufficient to deal effectively with the problem of libel tourism. “It is a step in the right direction,” says the Association of American Publishers (AAP), in a letter to Congress, but “it does not go far enough.”

Libel tourism is when a person, usually prominent and wealthy, sues an American author for libel in a country that lacks the equivalent of First Amendment protections and where the American author never took any steps to publish or market the allegedly libelous work. Foreign courts may assert jurisdiction over American authors in these cases because the publication could be read over the Internet or because a handful of copies made their way into the foreign country via Amazon.com. Libel tourists often file suit in England because the laws there are very plaintiff friendly, and libel plaintiffs can obtain judgments there that they could not obtain in the United States

To protect its writers and publishers New York State passed the Libel Terrorism Protection Act, in May last year. Similar laws passed in Illinois, and California, New Jersey and Florida are close to passing similar legislation.

The Cohen bill does not follow the better path taken by new state laws and by the Free Speech Protection Act 2009 (S.449), introduced in the Senate on February 13, 2009, and sponsored by Senators Schumer, Lieberman, Specter and Wyden.

The state laws and the Senate bill, create a declaratory judgment cause of action in that the U.S. defendant in a foreign libel action can sue here to declare such a judgment unenforceable without waiting -- perhaps forever -- for the foreign plaintiff to try to enforce the judgment here.

As currently worded, it is passive and unlikely to deter libel tourists. It will not reduce any chilling effect on free expression, and in reality does not amount to any real change in the law. What is needed instead is a federal law creating a federal cause of action for a declaratory judgment and for damages as well as attorney fees.

The language of H.R. 2765 does no more than declare foreign defamation judgments unenforceable if they are inconsistent with the First Amendment or if personal jurisdiction in the foreign suit is inconsistent with due process. The bill also contains an attorney fee clause.

Apart from modest symbolism, the Cohen bill accomplishes nothing of real value. A number of American courts have already held that foreign defamation judgments will not be enforced here if they violate our First Amendment. Similarly, it has long been the law that lack of due process in finding personal jurisdiction will bar enforcement of any foreign judgment. Although it is nice to have a federal statute making these points, the bill is the weakest one could possibly imagine.

A more appropriate and stronger piece of legislation is urgently necessary. H.R. 2765 does not provide for a victim of libel tourism to affirmatively ask an American court to declare a foreign defamation judgment unenforceable. This is the single greatest flaw in H.R. 2765. A foreign libel plaintiff can obtain a foreign judgment and inhibit the free speech of authors and publishers simply by not enforcing it but instead holding it over the heads of the press indefinitely. This Sword of Damocles has already silenced many American authors and publishers, and will continue to have a genuine and serious chilling effect.

The second huge hole in the House bill is the absence of any monetary relief. In contrast, the Senate bill provides for damages and even treble damages depending on the circumstances. Such a damage provision is essential if legislation is to accomplish its goal in this field.

The whole point of a federal law against libel tourism is to protect freedom of expression here. That means it must deter those who would seek to use foreign courts to terrorize or intimidate or chill free speech in America. To deter effectively, a federal law must have provisions for monetary damages. Without such damages, the legislation just will not do its job.

Objections based on considerations of personal jurisdiction and comity, which the Report mentions, can be addressed and satisfied. The legislation could base personal jurisdiction over a foreign libel plaintiffs on a number of factors: service of process in the U.S., assets in the U.S., impact and chilling effect in the U.S., a scheme aimed at the U.S., and whether the foreign judgment requires acts (such as an apology, destruction of books, etc.) in the U.S. Such grounds for personal jurisdiction would likely survive constitutional attack and do not create problems of international comity. It is not a matter of interfering in the judicial process of other nations; rather it is a matter of our courts enforcing our notions of fundamental public policy.

In short, H.R. 2765 will not achieve its stated goal -- "to dissuade potential defamation plaintiffs from circumventing First Amendment protection by filing suit in foreign jurisdictions that lack similar protection" (House Report) -- unless it is amended and strengthened in the manner outlined.

Daniel J. Kornstein, practices law in Manhattan and represents Rachel Ehrenfeld whose lawsuit precipitated these legislative changes.