LIBEL/PRIVACY

SPEECH Act protects against libel tourismFederal law to limit effect of foreign libel lawsuits on U.S. journalists

BY KRISTEN R/\,SMUSSEN

The same week a national legal maga-zine publicized research revealing anall-time low in the number of defamationand privacy lawsuits against the media inthe United States, a British media lawblog announced that libel claims therereached a record high last year.

Attorneys and media law scholarshave opined about the trend, providinga variety of legal explanations but stop-ping short of predicting the future, ifany, of libel cases against the mass media.But one woman — the subject of aBritish libel judgment her-self— did not waverin her predictionthat the numberof libel cases, atleast those broughtagainst American au-thors, in England andother countries willdecline significantly incoming years, thanks tothe recent passage of thefederal libel tourism law.

"It's already working,"according to book authorand American Center forDemocracy Director RachelEhrenfeld, whose plight mo-tivated Congress' action. "Wehave already heard stories oflawsuits not being filed againstAmericans. Foreign lawyers madethreats, and when [the law] was ex-plained to them, the [threatened] peopledidn't hear from them again."

While the long-term effects of theSecuring the Protection of our Enduringand Established Constitutional HeritageAct, or SPEECH Act, are yet to be seen,its unanimous congressional passage andpresidential approval in August are seenas a victory for many American authorsand publishers, who are now protectedfrom libel tourism, or the practice ofbringing libel lawsuits in countries wherethe First Amendment protections are notas strong as those in the United States.

Previously, merely purchasing a bookor reading an article on the Internet inanother country was enough to expose

some writers to lawsuits in foreigncountries. Just ask Ehrenfeld, arguablythe SPEECH Act's biggest and mostoutspoken advocate.

Her 2003 book, "Funding Evil: HowTerrorism is Financed — and Howto Stop It," angered Saudi billionaireSheikh Khalid Bin Mahfouz, whoclaimed the work defamed him by link-ing him to the financing of terrorism.Although the book was primarily soldin the United States, 23 copies orderedfrom Amazon.com were shippied to

England. This, and the postingof a chapter of the book onthe internationally acces-sible ABC News website,convinced a British courtto exercise jurisdictionover Ehrenfeld.

She never acknowl-edged jurisdiction nordefended the suit, re-sulting in the Brit-ish court's entry ofdefault judgmentagainst her — asort of scarletletter that canfollow her any-where and ad-versely affecther ability

to, among otherthings, obtain a mort-

gage, travel overseas or enterinto employment contracts, said Kurt

Wimmer, a Washington, D.C., medialawyer who testified during the U.S. Sen-ate Judiciary Committee's hearing on thelibel tourism bill in Eebruary.

"These kinds of judgments have achilling effect from the moment they arerendered," Wimmer said.

Designed to "promote the vigor-ous dialogue necessary to shape publicpolicy in a representative democracy,"the SPEECH Act seeks to eliminate thischilling effect on authors and publish-ers who, "but for the fear of a foreignlawsuit," might otherwise have writtenor published works about matters ofpublic importance, according to the law'sfindings.

To that end, the SPEECH Act bars

U.S. courts, both federal and state, fromrecognizing or enforcing foreign libeljudgments unless certain requirementsare met, including consistency with theU.S. Constitution. More specifically,when a party who has obtained a libeljudgment against an American authoror publisher in a foreign court comes toan American court to enforce that judg-ment, the court is prohibited from doingso until it determines that the judgmentis consistent with First Amendmentsafeguards.

For example, the American courtwould have to find that, in obtainingthe libel judgment overseas, the part}'seeking its enforcement was able toprove the falsity of what was written.That's because the requirement that alibel plaintiff bear the burden of prov-ing falsity, as opposed to the defendanthaving to prove the truth of what he orshe wrote, is a constitutional protectionafforded under the First Amendment.Although that standard is not requiredin most foreign countries, under theSPEECH Act, it must be met before anylibel judgments from those countries canbe recognized in American courts.

Courts also are prohibited from rec-ognizing or enforcing these judgmentswhen the part)' opposing them convincesthe court that the foreign court's exerciseof jurisdiction over that person violateddue process requirements that the Con-stitution imposes on American courts.

That is, for the judgment to be en-forceable, the person against whom itwas obtained must have had sufficientcontacts with the foreign state and en-gaged in continuous and systematic actsthere such that he or she could expect tobe sued there.

The SPEECH Act also protects on-line service providers by requiring thatforeign libel judgments also comply withSection 230 of the CommunicationsDecency Act, which insulates these pro-viders from liability for material postedby third parties.

Moreover, a U.S. citizen who canshow that a foreign libel judgmentagainst him or her is inconsistent withthe Constitution or Section 230 of theCommunications Decency Act may

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L1BE17PRIVACY

bring an action in federalcourt for a judgment de-claring that the foreignjudgment is "repugnant tothe C^onstitution."

While the SPFECH.'\ct will certainly helpcombat libel tourism, itwill not end the "absurdnightmare" that reporterand book author Joe Shar-key said he has been livingfor the last four years.Sharkey, one of seven sur-vivors of a midair jet crashthat killed I 54 people overthe Amazon in 2006, wrotea first-person account thaiappeared on the front pageof The New York Timesand later in The (London)Sunday Times magazine,and provoked the ire ofcitizens of Brazil and itsg()\criunent.

Although Sharkey isa resident of the UnitedStates and his piece waspublished there and inBritain only, a process server showed upat his home in New Jersey nearly threeyears after the crash.

1 he server informed Sharkey that acrash widow had sued him, claiming hedefamed the entire country of Brazil onhis personal blog.

Another process server appeared atSharkey's new home in Arizona in earlyOctober to inform him that he is nowalso the subject of an investigation intothe criminal charge of insult toBrazil, Sharkey said. ^

Both of these charges stem notfrom his published accounts butfrom comments third parties postedon his blog. The New York Times'website and various other onlinesites and blogs, Sharkey said.

The charges, neither of which ^ "Sharkey is contesting, allege thathe referred to Brazil as the "most idiotof all idiots" and described the countryas "banana," statements of opinion thatwould not qualify as actionable defama-tion under American law, "|e]ven if I hadwritten or said these things," he wrote inan e-mail message.

"It appears that the SPFFCH law willprotect me even if a criminal fine is ren-dered, though of course that only meansthat I am probably safe from the enforce-ment of a Brazilian monetary judgmentagainst me in the U.S.," Sharkey wrote."Assuming I am convicted in the civil

I

Joe Sharkey was sued in Brazii for defaming the entire country due to comments published onhis personal blog.

case, and assuming a criminal chargeis ultimately filed, and I am convictedin absentia, I, of course, will need to becautious about some international travel,probably for the rest of my life. And thenthere is the abiding matter of my reputa-tion, which has been pretty thoroughlysullied in Brazil. . . . Countries in SouthAinerica are known for having criminal'insult' laws. To the extent that theycan be applied from those countries to

"The chilling effect is gone. The SPEECHAct says, 'Go ahead and publish whateveryou find is important."'

— Rachel Ehrenfeld

Americans within U.S. borders, the U.S.First Amendment is in genuine peril."

Wimmer acknowledged that the newlaw does not afford absolute protectionto everyone. It provides little relief, forexample, to large publishing companieswith significant assets in the foreigncountries that rendered the judgments,he said. The legislation will prove mostbeneficial to individual authors, bloggers,reporters, and entirely domestic bookpublishers with little foreign resources,but big contributions to the publicdiscourse, particularly in the area of

international terrorism, Wunmer added.Individual authors like Fhrenfeld,

who cited passage of the law as "very im-portant in the days we are living today."

"The chilling effect is gone," she said."The SPEECH Act says, 'Co ahead andpublish whatever you find is important.'"

Other provisions of the SPEECH Actprovide for:

• Removal of a cause of actionbrought 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 theother is a either a foreign state orcitizen of a foreign state;

• Assurance that a party whoopted to appear and defend him orherself in a foreign court that suhse-

^ " quently entered a judgment againsthim or her would not be precluded

from later challenging enforcement ofthat judgment in an American court;

• Recovery of reasonable attorneyfees under certain conditions when aparty, as described above, challengesand prevails in an American court theenforcement or recognition of a foreignjudgment that he or she defended againstin the foreign court; and

• Preemption of state laws related toforeign judgments, meaning that whenprovisions of the federal SPEECH Actconflict with those in similar state laws,the federal one governs. •

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