Earlier this month, the United States House of Representatives passed H.R. 2765, an amendment to Title 28 of the US Code that would “prohibit recognition and enforcement of foreign defamation judgments.” The bill goes beyond H.R. 6146, which passed through the House last year in a number of ways (elucidated below). Both bills were introduced by Rep. Steven Cohen.
This bill (and others, including the U.S. Senate Free Speech Protection Acts of 2008 and 2009 and state statutes in New York and Illinois) is a response to the problem of “libel tourism,” whereby plaintiffs file defamation suits in foreign countries against US-based defendants, often on shaky jurisdictional grounds. England is usually the country of choice, due to its highly plaintiff-friendly defamation laws. We have blogged about this problem (and proposed legislative solutions) previously here at CMLP.
Most attribute the recent spur to action on this issue to a suit won in Britain by Khalid Bin Mahfouz against Dr. Rachel Ehrenfeld, a US citizen and author of Funding Evil: How Terrorism is Financed and How to Stop It. In that case, a British court awarded a £110,000 default judgment to bin Mahfouz, even though the book was not published, marketed, or sold in the UK (although 23 copies purchased online or by special order had made their way to England).
The new bill expands the reach of the previous House effort (H.R. 6146) in a number of ways. First, its scope has been expanded to preclude recognition of foreign defamation judgments where the issuing court’s exercise of personal jurisdiction over the defendant failed to comport with due process requirements of the U.S. Constitution, or where the defendant would be immunized from suit as an interactive computer service under section 230 of the Communications Decency Act ("Section 230"). Second, the burden of establishing that the foreign judgment is consistent with either the First Amendment or Section 230 lies on the “party seeking recognition or enforcement of the judgment” (i.e. the foreign defamation plaintiff). Third, the bill explicitly states that making an appearance in a foreign court – for any purpose – that later issues an unfavorable defamation judgment does not deprive a party of the right to oppose that judgment in a domestic court under the bill. Finally, if a party brings an action to enforce a foreign defamation judgment in a domestic court and fails, the court may award attorney’s fees to the prevailing party.
The House bill does not go as far as the similar New York state law, which explicitly provides New York courts with personal jurisdiction over foreign libel-tourism plaintiffs with assets in New York, allowing a victim of libel tourism to counter-sue the foreign plaintiff. The House Committee on the Judiciary, in their report on H.R. 2765, notes its concern that such a provision might circumvent due process requirements for assertion of personal jurisdiction. Since the House bill specifically bars recognition of foreign defamation suits where assertion of personal jurisdiction does not comply with American due process, the inclusion of this provision would be ironic, as it would authorize U.S. courts to engage in the same activity for which the bill chastises other nations' judiciaries.
Although H.R. 2765 has passed the House, it still needs to pass through the Senate, where it may face problems being harmonized with the Free Speech Protection Act of 2009, currently under consideration by the Senate Judiciary Committee. The Senate bill contains provisions similar to those found in the New York state law authorizing counterclaims, which so concerned the House Judiciary Committee. Whether such provisions will appear in the final iteration of this legislation – assuming such legislation makes it through the Senate and a potential conference committee – remains to be seen.
Despite the seemingly broad sweep of this bill, in reality it does little. As the House committee report states, the enforcement of foreign judgments is a matter of state law, and most states bar foreign judgments that contravene its public policy – including, presumably, judgments inconsistent with the First Amendment. Nevertheless, there may be some advantage to having a clear rule that applies uniformly across all U.S. jurisdictions, and explicitly incorporates Section 230 immunity. Of course, the bill protects only those assets held in the US, and does nothing to prevent an English court from seizing assets held in England in order to satisfy a defamation judgment. Complete relief from libel tourism can only come from a change in British libel laws. It is thus encouraging to see that some British Members of Parliament are beginning to call for reform of such laws, and that the Culture, Media and Sport Committee of the U.K. Parliament is holding an inquiry on the topic of press standards, privacy, and libel.
(Lee Baker is a rising second-year law student at Harvard Law School and a CMLP legal intern.)