"Libel Tourism" Bill Passed by U.S. House
The U.S. House of Representatives on June 15, 2009, passed a bill to combat so-called “libel tourism”—a practice where United States reporters and media outlets are sued for defamation in foreign countries to circumvent the limits the U.S. Constitution places on defamation claims. The text of H.R. 2765 is available here, while the House report on the bill is here.
H.R. 2765 provides the following:
- U.S. state or federal courts must not recognize or enforce a foreign defamation judgment if the person opposing the judgment argues that the judgment is inconsistent with the First Amendment. The domestic court may enforce the foreign judgment if it independently determines that the judgment is consistent with the First Amendment.
- U.S. state or federal courts must not recognize or enforce a foreign defamation judgment if the person opposing the judgment shows that the foreign court failed to comport with Due Process in exercising personal jurisdiction over the defamation defendant. (For more information on personal jurisdiction, this website provides an overview.)
- U.S. state or federal courts must not recognize or enforce a foreign defamation judgment against an “interactive computer service” provider, as that term is defined in Section 230 of the Communications Act, if the person opposing the judgment raises Section 230 as a bar. The domestic court may recognize or enforce the foreign judgment if it independently determines that the judgment is consistent with Section 230. (Section 230 generally requires that “interactive computer service” providers are not to be treated as the publishers or speakers of content posted on their websites by third parties. We have written about Section 230 here and here.)
The burden of establishing that the foreign judgment does not run afoul of the First Amendment or Section 230 is on the party seeking to recognize or enforce the foreign judgment—not the defamation defendant. That makes it more difficult for the holder of the foreign judgment to have the judgment enforced in the United States if the defamation defendant raises the First Amendment or Section 230 as a bar.
The burden of showing a foreign court failed to give the defamation defendant Due Process is with the person opposing the foreign judgment—the defamation defendant. This, of course, makes it more difficult for a defamation defendant to avoid a foreign judgment based on the foreign court’s lack of personal jurisdiction.
H.R. 2765 also provides that “appearing” before a foreign court to contest the court’s jurisdiction or defend against the claims does not preclude the defamation defendant from opposing the judgment in the United States on jurisdiction grounds or otherwise.
Additionally, the bill provides that the party opposing recognition or enforcement of a foreign defamation judgment may be awarded reasonable attorneys' fees if the party prevails based on one of the three grounds described above.
If enacted, H.R. 2765 would represent a significant victory for media companies, particularly in this age where media websites may be accessed anywhere around the world—including places that have few if any restrictions on defamation claims. However, the bill, as currently written, does not include any additional penalties (other than attorneys' fees) to further deter defamation plaintiffs from pursuing these problematic foreign judgments in the U.S.
H.R. 2765 was reported favorably out of the Judiciary Committee on a voice vote on June 10, 2009. With passage by the full House on June 15, 2009, the bill next moves to the Senate.
