SPEECH Act protects against libel tourism

From the Fall 2010 issue of The News Media & The Law, page 20.

The same week a national legal magazine publicized research revealing an all-time low in the number of defamation and privacy lawsuits against the media in the United States, a British media law blog announced that libel claims there reached a record high last year.

Attorneys and media law scholars have opined about the trend, providing a variety of legal explanations but stopping short of predicting the future, if any, of libel cases against the mass media. But one woman — the subject of a British libel judgment herself — did not waver in her prediction that the number of libel cases, at least those brought against American authors, in England and other countries will decline significantly in coming years, thanks to the recent passage of the federal libel tourism law.

“It’s already working,” according to book author and American Center for Democracy Director Rachel Ehrenfeld, whose plight motivated Congress’ action. “We have already heard stories of lawsuits not being filed against Americans. Foreign lawyers made threats, and when [the law] was explained to them, the [threatened] people didn’t hear from them again.”

While the long-term effects of the Securing the Protection of our Enduring and Established Constitutional Heritage Act, or SPEECH Act, are yet to be seen, its unanimous congressional passage and presidential approval in August are seen as a victory for many American authors and publishers, who are now protected from libel tourism, or the practice of bringing libel lawsuits in countries where the First Amendment protections are not as strong as those in the United States.

Previously, merely purchasing a book or reading an article on the Internet in another country was enough to expose some writers to lawsuits in foreign countries. Just ask Ehrenfeld, arguably the SPEECH Act’s biggest and most outspoken advocate.

Her 2003 book, “Funding Evil: How Terrorism is Financed — and How to Stop It,” angered Saudi billionaire Sheikh Khalid Bin Mahfouz, who claimed the work defamed him by linking him to the financing of terrorism. Although the book was primarily sold in the United States, 23 copies ordered from Amazon.com were shipped to England. This, and the posting of a chapter of the book on the internationally accessible ABC News website, convinced a British court to exercise jurisdiction over Ehrenfeld.

She never acknowledged jurisdiction nor defended the suit, resulting in the British court’s entry of default judgment against her — a sort of scarlet letter that can follow her anywhere and adversely affect her ability to, among other things, obtain a mortgage, travel overseas or enter into employment contracts, said Kurt Wimmer, a Washington, D.C., media lawyer who testified during the U.S. Senate Judiciary Committee’s hearing on the libel tourism bill in February.

“These kinds of judgments have a chilling effect from the moment they are rendered,” Wimmer said.

Designed to “promote the vigorous dialogue necessary to shape public policy in a representative democracy,” the SPEECH Act seeks to eliminate this chilling effect on authors and publishers who, “but for the fear of a foreign lawsuit,” might otherwise have written or published works about matters of public importance, according to the law’s findings.

To that end, the SPEECH Act bars U.S. courts, both federal and state, from recognizing or enforcing foreign libel judgments unless certain requirements are met, including consistency with the U.S. Constitution. More specifically, when a party who has obtained a libel judgment against an American author or publisher in a foreign court comes to an American court to enforce that judgment, the court is prohibited from doing so until it determines that the judgment is consistent with First Amendment safeguards.

For example, the American court would have to find that, in obtaining the libel judgment overseas, the party seeking its enforcement was able to prove the falsity of what was written. That’s because the requirement that a libel plaintiff bear the burden of proving falsity, as opposed to the defendant having to prove the truth of what he or she wrote, is a constitutional protection afforded under the First Amendment. Although that standard is not required in most foreign countries, under the SPEECH Act, it must be met before any libel judgments from those countries can be recognized in American courts.

Courts also are prohibited from recognizing or enforcing these judgments when the party opposing them convinces the court that the foreign court’s exercise of jurisdiction over that person violated due process requirements that the Constitution imposes on American courts.

That is, for the judgment to be enforceable, the person against whom it was obtained must have had sufficient contacts with the foreign state and engaged in continuous and systematic acts there such that he or she could expect to be sued there.

The SPEECH Act also protects online service providers by requiring that foreign libel judgments also comply with Section 230 of the Communications Decency Act, which insulates these providers from liability for material posted by third parties.

Moreover, a U.S. citizen who can show that a foreign libel judgment against him or her is inconsistent with the Constitution or Section 230 of the Communications Decency Act may bring an action in federal court for a judgment declaring that the foreign judgment is “repugnant to the Constitution.”

While the SPEECH Act will certainly help combat libel tourism, it will not end the “absurd nightmare” that reporter and book author Joe Sharkey said he has been living for the last four years. Sharkey, one of seven survivors of a midair jet crash that killed 154 people over the Amazon in 2006, wrote a first-person account that appeared on the front page of The New York Times and later in The (London) Sunday Times magazine, and provoked the ire of citizens of Brazil and its government.

Although Sharkey is a resident of the United States and his piece was published there and in Britain only, a process server showed up at his home in New Jersey nearly three years after the crash.

The server informed Sharkey that a crash widow had sued him, claiming he defamed the entire country of Brazil on his personal blog.

Another process server appeared at Sharkey’s new home in Arizona in early October to inform him that he is now also the subject of an investigation into the criminal charge of insult to Brazil, Sharkey said.

Both of these charges stem not from his published accounts but from comments third parties posted on his blog, The New York Times’ website and various other online sites and blogs, Sharkey said.

The charges, neither of which Sharkey is contesting, allege that he referred to Brazil as the “most idiot of all idiots” and described the country as “banana,” statements of opinion that would not qualify as actionable defamation under American law, “[e]ven if I had written or said these things,” he wrote in an e-mail message.

“It appears that the SPEECH law will protect me even if a criminal fine is rendered, though of course that only means that I am probably safe from the enforcement of a Brazilian monetary judgment against me in the U.S.,” Sharkey wrote. “Assuming I am convicted in the civil case, and assuming a criminal charge is ultimately filed, and I am convicted in absentia, I, of course, will need to be cautious about some international travel, probably for the rest of my life. And then there is the abiding matter of my reputation, which has been pretty thoroughly sullied in Brazil. . . . Countries in South America are known for having criminal ‘insult’ laws. To the extent that they can be applied from those countries to Americans within U.S. borders, the U.S. First Amendment is in genuine peril.”

Wimmer acknowledged that the new law does not afford absolute protection to everyone. It provides little relief, for example, to large publishing companies with significant assets in the foreign countries that rendered the judgments, he said. The legislation will prove most beneficial to individual authors, bloggers, reporters, and entirely domestic book publishers with little foreign resources, but big contributions to the public discourse, particularly in the area of international terrorism, Wimmer added.

Individual authors like Ehrenfeld, who cited passage of the law as “very important in the days we are living today.”

“The chilling effect is gone,” she said. “The SPEECH Act says, ‘Go ahead and publish whatever you find is important.’”

Other provisions of the SPEECH Act provide for:

• Removal of a cause of action brought in an American state court to U.S. District Court if the parties are citizens of different states or if one party is a U.S. citizen, while the other is a either a foreign state or citizen of a foreign state;

• Assurance that a party who opted to appear and defend him or herself in a foreign court that subsequently entered a judgment against him or her would not be precluded from later challenging enforcement of that judgment in an American court;

• Recovery of reasonable attorney fees under certain conditions when a party, as described above, challenges and prevails in an American court the enforcement or recognition of a foreign judgment that he or she defended against in the foreign court; and

• Preemption of state laws related to foreign judgments, meaning that when provisions of the federal SPEECH Act conflict with those in similar state laws, the federal one governs.