With the rough and tumble of the debate over the stimulus legislation starting to wind down, Congress is starting to turn to other subjects. The House Judiciary Subcommittee on Commercial and Administrative Law held hearings yesterday on “libel tourism,” the filing of libel lawsuits against U.S. defendants in libel-plaintiff friendly countries such as the U.K.
This is not the first Congressional run at the subject, which is of particular interest to authors and media companies that publish online and thus are more likely to be susceptible to claims of harm caused in distant locations. Indeed, authors and publishers of print works that may be sold online to offshore purchasers should be concerned as well, as a foreign court may predicate jurisdiction on even a small number of such sales.
The panelists testifying before the Subcommittee commented on the provisions of H.R. 6146, which passed the House Judiciary Committee late last year but failed to get to a floor vote before the end of the 110th Congress. Presumably Rep. Steve Cohen (D. Tn.) who sponsored H.R. 6146 and chairs the Subcommittee, is preparing to introduce the same or similar legislation in the current 110th Congress, although no bill has yet been filed.
The first panelist was Rachel Ehrenfeld, whose experiences with libel litigation in the U.K. prompted the introduction of H.R. 6146 and the enactment of the Libel Terrorism Protection Act by the New York Legislature last year, as detailed more fully in my post on the PBS MediaShift blog. Her statement to the Subcommittee detailed the lawsuit brought against her in the U.K. for publication of a book in the U.S. alleging that a Saudi businessman financially supported terrorism. The U.K. court based jurisdiction in the case on the sale there of 23 copies of the book via the Internet, and the availability of a chapter of the book on a Web site accessible in England.
What would the enactment of H.R. 6146 have accomplished? The bill would have provided a defensive remedy against the enforcement of foreign libel judgments. The provisions of the bill are quite simple, providing that notwithstanding other provisions of state or federal law, “a domestic court [i.e., either federal or state] shall not recognize or enforce a foreign judgment for defamation that is based upon a publication concerning a public figure or a matter of public concern unless the domestic court determines that the foreign judgment is consistent with the first amendment to the Constitution of the United States.” In other words, a plaintiff that obtained a libel judgment in a foreign court would be unable to enforce that judgment in U.S. courts unless there was a finding that the judgment met U.S. first amendment standards.
That sounds like a lot, and it is, but according to one panelist, Prof. Linda J. Silberman of New York University Law School, the principle set out in the legislation already reflects U.S. law, citing, e.g., Sarl Louis Feraud International v. Viewfinder, Inc., 489 F.3d 474 (2d Cir. 2007) (expressing the principle that a foreign judgment that does not conform to U.S. first amendment standards is unenforceable on grounds of public policy). She did comment favorably on the provisions of H.R. 6146, however, to the extent that enactment of those provisions would establish a clear federal policy on non-enforcement of judgments that violated the first amendment, as opposed to the more general “public policy” grounds under existing law.
The subject that yielded divided opinions on the part of the panelists concerned the extent to which legislation addressing libel tourism should be limited to the type of defensive provisions contained in H.R. 6146, or whether an affirmative remedy should be provided. In Ehrenfeld’s case, her attempt to preemptively obtain a judgment declaring the U.K. libel judgment unenforceable failed when courts ruled that there was no jurisdiction over the foreign libel plaintiff under New York law.
The specific provisions discussed were those contained in two companion bills in the 110th Congress, H.R. 5814 (Rep. King) and S. 2777 (Sen. Specter and Sen. Lieberman), which would have provided for long-arm jurisdiction and a federal cause of action including both injunctive relief and damages against a foreign plaintiff that filed a defamation action in a foreign court with respect to speech disseminated in the U.S. that did not constitute defamation under U.S. law. Prof. Silberman commented that she is “highly critical” of those proposals, which she characterized as failing to “extreme and ultimately unsustainable remedies” that would be “much too aggressive an assertion of U.S. jurisdiction even in those situations where U.S. interests might be found to be compelling.”
Another panelist, Laura R. Handman, detailed the range of libel actions brought in overseas courts and the chilling effects they have had on U.S. publishers, Handman argued for amending any proposal based on H.R. 6146 to include a declaratory judgment provision including an award of fees and costs. Handman also pointed out that the irony that it is American celebrities who are “some of the most frequent libel tourists,” detailing actions brought by Harrison Ford, Britney Spears, Cameron Diaz and Marc Anthony and Jennifer Lopez, among others. Panelist Bruce D. Brown similarly argued for expanding the provisions of H.R. 6146 to incorporate affirmative remedies against libel tourists.
The hearing adjourned without further discussion of a bill introduction, so though it appears likely that some legislation will be introduced, the shape it will take remains uncertain.