Internet Availability Creates Spike in ‘Libel Tourism’, Subcommittee Told

Subcommittee Chairman Steve Cohen, D-Tenn., said he'll reintroduce his untitled HR-6146, passed by the House last year. It would prevent U.S. courts from recognizing or enforcing foreign defamation judgments unless they're “consistent with the First Amendment.”

The Free Speech Protection Act by Rep. Peter King, R- N.Y. (HR-5814) and Sen. Arlen Specter, R-Pa. (S-2977), which languished in each Judiciary Committee last year, would go further. U.S. writers would get the right to file suit against their accusers in U.S. court, and obtain damages based on the foreign judgment, legal fees and harm caused from “decreased opportunities to publish, conduct research, or generate funding.” Triple damages would be available if the accuser were found to have “intentionally engaged in a scheme to suppress First Amendment rights” by discouraging publication or funding. House Subcommittee Ranking Member Trent Franks, R-Ariz., said the competing bills make the same mistake as foreign courts -- going beyond U.S. jurisdiction simply because a U.S. citizen is involved.

Author Rachel Ehrenfeld’s book Funding Evil sold 23 copies on Amazon.com to U.K. purchasers, and its first chapter was available as a preview on Amazon, but otherwise not available or marketed in the U.K., she told the subcommittee. A U.K. court’s summary judgment favored her accuser, Saudi billionaire Khalid bin Mahfouz, whom Ehrenfeld said was funding terrorist groups. She was ordered to pay $225,000 in damages, apologize to Mahfouz and destroy remaining copies of the book. After New York passed a libel tourism bill shielding state residents like Ehrenfeld from such foreign judgments, Ehrenfeld still had to contend with Mahfouz’s Web site listing the judgment against her, which has made publishers with foreign operations afraid to publish her work, she said. Her travel to Europe has also been curtailed because of reciprocal judgment agreements in several countries, Ehrenfeld said.

Foreign courts often have the “thinnest of jurisdictional hooks” to haul in U.S. writers -- Internet publication, said Bruce Brown, a First Amendment lawyer and former reporter for Legal Times. British judges are “exceptionally generous” to libel plaintiffs. London has become the default venue for libel suits, said lawyer Laura Handman, who said her clients got the first and most recent U.S. court decisions to block enforcement of British libel judgments. Media companies and authors often settle out of court or pull back sensitive investigations to avoid likely judgments and payment of plaintiffs’ legal fees, she said.

State laws on recognition of foreign libel judgments are all over the map, said Linda Silberman, law professor at New York University. Congress should take the opportunity not only to address libel but the entire scope of foreign judgments that may conflict with U.S. constitutional protections, she said.

The libel bills offered last year need refinement, Silberman told Cohen. U.S. jurisdiction should apply only “when U.S. interests are undermined … or affected,” not simply when a person in the U.S. says something inflammatory in the foreign media or foreign-directed Web site, she said. It’s doubtful whether there’s precedent for a U.S. cause of action arising from foreign judgments, she said. Silberman consulted for Yahoo when it tried to block U.S. enforcement of a French court’s ruling that its display of Nazi memorabilia violated hate-speech laws, eventually incurring a $15 million fine. The 9th Circuit decided it didn’t have jurisdiction, but on highly technical grounds, Silberman said. The King and Specter bills’ cause-of-action provisions, which she called “clawback statutes,” are unconstitutional and risk an identical response from foreign legislatures. “It shows no respect for a system that, although different from ours, deserves deference,” if not enforcement in the U.S., Silberman said.

Whatever Congress does needs “teeth,” because the Web site listing the judgment against Ehrenfeld has a chilling effect on the work of all writers, she said, noting inquiries she’s received from other threatened writers. Handman said legislation should explicitly provide for U.S. jurisdiction based on a plaintiffs’ U.S. ties -- often Hollywood celebrities go abroad to sue for defamation, but so do foreign businessmen with U.S. contracts. One who sued the Washington Times for Internet publication of an article called defamatory had contracts with the Coalition Provisional Authority in Iraq, a prime opening for a countersuit, she said.

Cohen proposed that his bill allow attorney’s fees to be recovered from plaintiffs who try and fail to enforce foreign judgments in the U.S. That would serve as “tiny, baby teeth” for Ehrenfeld and other writers, he said. Lawmakers have precedent for that in state anti-SLAPP statutes, which punish plaintiffs for bringing lawsuits aimed at heading off criticism, Handman said. The good news is many members of British Parliament have voiced embarrassment at their country’s libel provisions in recent debates, Brown said. The British legal bar has also discussed changing the structure of payments in libel suits to give lawyers less incentive to take such cases, Ehrenfeld said.