A Blow against Libel Tourism - Part 4 Chapter 16 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman and David Zaslowsky are members of the Litigation Department of the New York office of Baker & McKenzie LLP. They are co-authors of Litigating International Commercial Disputes (West Group).
“Libel tourism” is a term used to describe a type of forum shopping in which a plaintiff chooses to file a libel suit in a jurisdiction that is believed to be more likely to provide the plaintiff with a favorable result, and then tries to enforce that judgment in a less libel-friendly forum, such as the United States. Earlier this year, President Obama signed into law the Securing the Protection of our Enduring and Established Constitutional Heritage Act (SPEECH Act). Though bombastically named, the statute provides real protection for authors and publishers against libel tourism. It follows on the heels of a similar law passed in New York in 2008.
A paradigm used often to illustrate the libel tourism problem is a defamation suit by a public figure brought in England. Under English law, a defamatory statement is presumed to be false unless the defendant can prove its truth, an often difficult task. Compare that to a libel case brought in the United States by a public figure, where the plaintiff would have the burden of proving actual malice—i.e., that the statement was published with knowledge that it was false or with reckless disregard to its truth.1
In today’s world of globalized publications and Internet sales, it is almost impossible for an author to limit the reach of her writings to just one country. Thus, if some rich and powerful individual or multinational corporation does not like what was written about them, it would probably not be that difficult to find that offending writing in England. With that, the author can be sued in England and, since many authors would not be able to afford the cost and other burdens of such a foreign lawsuit, but could be financially liable in the event of a defamation judgment from England is later enforced in the United States, there is a real risk of a chilling effect on free speech.