Senate Passes Libel Tourism Bill: Won't Recognize Ridiculous Foreign Libel Judgments

from the nice-to-see dept

Wed, Jul 21st 2010 9:01pm — Mike Masnick

We've written many, many times about the problems of libel tourism. Basically, some countries have ridiculous overbearing libel laws, that not only put the burden on those accused, but also leave open the ability of being found guilty of libel for telling the truth. With the rise of the internet meaning that something published online is published "everywhere," there's been an increase of individuals and companies suing for libel in random countries, who have stricter libel laws, claiming that since the content was available in those countries, those libel laws apply. Of course, if that's true, it would effectively mean that the lowest common denominator of restrictive laws around the world apply everywhere.

Thankfully, the US has more reasonable defamation laws than many other parts of the world (though, they could still be improved). But more and more US citizens have been caught up in libel tourism cases elsewhere. The Senate has now passed an anti-libel tourism bill, which would prevent the US courts from enforcing foreign judgments in libel cases that seem to go against the US First Amendment. The bill is expected to pass in the House as well. This all seems good, though, I have to admit that I hadn't realized US courts would enforce foreign libel decision in the US even if they went against the First Amendment. You would have thought that the US courts were already prevented from allowing things like that... Rather than just a specific "libel tourism" law, why do we allow US courts to enforce foreign rulings that appear to go against US law at all?

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: defamation, first amendment, libel, libel tourism

19 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 21 Jul 2010 @ 9:57pm

as always... this is why...
International Treaties like ACTA, that someone (read corporations) wanted signed so that "foreign" press couldn't tell the truth if it was damning for fear of being sued by the corp.
[ link to this | view in thread ]
Ross Nicholson, 21 Jul 2010 @ 10:39pm

Libel laws in the USA
Have you got an innovative idea? Prepare to be libeled if you live in the USA. Ever been robbed of intellectual property? Libeling poor people who complain about being robbed is commonly used by our out of control US corporations who fear no fair judgement against them. Our libel laws should be strengthened, not weakened, to protect the rights of ordinary citizens.
[ link to this | view in thread ]
Matthew Stinar (profile), 21 Jul 2010 @ 11:27pm

It's a good start, but...
Stating that our constitution is more important than what some other country things is the right thing to do, but we need to go farther. Copyrights and patents are only constitutional as long as they reasonably "promote the useful arts and sciences," but these international treaties being championed by WIPO are harming the arts and sciences. Treaties and foreign laws should NEVER trump the constitution.
[ link to this | view in thread ]
bob, 22 Jul 2010 @ 1:31am

Things All Depend
Upon senate ratified treaties, if we have a treaty that says we will do a thing, then that thing becomes the supreme law of the land.
Look at the The United States Constitution, treaties are even above the bill of rights.
Thats why the internationalists want to get us to ratify so many treaties.
[ link to this | view in thread ]
JackSombra (profile), 22 Jul 2010 @ 2:41am

Right conclusion by government but highly doubt for right reasons

US has long standing practice of ignoring other country’s laws (and international law when it suits them) while attempting to either export their laws to other countries where possible and if not possible just attempt to apply US law on non-citizens for actions that occurred in other countries.

This is normal standard operating procedure, hardly something to congratulate them for
[ link to this | view in thread ]
Red Monkey (profile), 22 Jul 2010 @ 3:27am

belt and suspenders
Actually I think courts are not supposed to enforce things that are unconstitutional anyway, but the defendant still has to go through the trouble of proving that a particular law is unconstitutional (and face the risk of failing to do so). The statute removes this burden so the defendant doesn't have to do all that.
[ link to this | view in thread ]
Red Monkey (profile), 22 Jul 2010 @ 3:32am

Re: Things All Depend
I don't think so. In Article VI, treaties stand on equal footing with the constitution. The purpose of mentioning treaties in Article VI is so a state can't just say "Hey, this treaty conflicts with my state law, so I'm ignoring it".
[ link to this | view in thread ]
Red Monkey (profile), 22 Jul 2010 @ 3:39am

Foreign Corrupt Practices Act
So how do you feel about the FCPA? That's the one that says if a US corporation bribes a foreign official in a foreign country, it's punishable in the US, even though the actual bribery took place outside the US, and even though that country may not have had a law against it. Would you vote to repeal based on your reasons above?
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2010 @ 4:02am

Maybe other countries should start doing anti-foreign copyright law to stop US corporations suing us based on US law.
[ link to this | view in thread ]
Adam Wasserman (profile), 22 Jul 2010 @ 4:29am

Mike asks: "why do we allow US courts to enforce foreign rulings that appear to go against US law at all?"

Because if a US citizen or resident travels to another country, and breaks that countries laws, they should indeed be liable for whatever penalties they incur, even if there the same activity is legal within the US.

For example if I travel to the UK and drive on the right (therefore wrong) side of the road, I most certainly should pay the ticket, even if I have returned to the US by the time the fine is decided upon the the UK court.
[ link to this | view in thread ]
res2 (profile), 22 Jul 2010 @ 5:54am

Re:
I don't think you could have missed the point more.
[ link to this | view in thread ]
Anonymous Coward, 22 Jul 2010 @ 6:29am

Why laws don't have an expiration date?

They should expire if no one cares or they are not used.
[ link to this | view in thread ]
gren (profile), 22 Jul 2010 @ 7:05am

Replies
What Adam Wasserman is half right, I think. The driving example is bad since driving laws aren't a Constitutional issue, clearly. I do think there are some foreign laws that need to be followed even if they wouldn't stand in U.S. courts. But, the problem with this is the internet. If you publish something online and a British court fines you it's pretty clearly problematic that you have to pay especially if you had no specific intention of publishing it for British people.

Ross Nicholson has a point about consumer protections but I don't exactly think libel law is where you enforce that.
[ link to this | view in thread ]
BBT, 22 Jul 2010 @ 7:34am

"This all seems good, though, I have to admit that I hadn't realized US courts would enforce foreign libel decision in the US even if they went against the First Amendment. You would have thought that the US courts were already prevented from allowing things like that... Rather than just a specific "libel tourism" law, why do we allow US courts to enforce foreign rulings that appear to go against US law at all?"

You made a fatal logical error here. Just because the Senate passed a law against something doesn't mean that it was ever actually happening, or that it wasn't already illegal. They ban things that are already banned all the time.
[ link to this | view in thread ]
nasch (profile), 22 Jul 2010 @ 8:02am

Re:
What if the person doesn't travel outside the US and gets charged with a crime in another country?
[ link to this | view in thread ]
Rick, 22 Jul 2010 @ 2:10pm

Re: Libel laws in the USA
Actually, libel law protections should just 'not apply' to corporations.

It's fine if I say my neighbor is a fat pig, because that's what I think. It's completely different if FOX News did it or Ford Motor company. (just examples, altho FOX seems to do it regularly to people).

Corporations are not people - they should have no rights. They need to be forced to comply with ethics laws and I think we should start enforcing some sort of morality code on them too. They're out of control.
[ link to this | view in thread ]
Gene Cavanaugh (profile), 22 Jul 2010 @ 2:44pm

Libel laws
"Rather than just a specific "libel tourism" law, why do we allow US courts to enforce foreign rulings that appear to go against US law at all?"
Because it cuts both ways - if we are a "master race", above the laws of other countries, forget about any cooperation from those other nations!
[ link to this | view in thread ]
Elton Leggett, 29 Jul 2010 @ 8:36am

Burden of proof
"Basically, some countries have ridiculous overbearing libel laws, that not only put the burden on those accused..."

That is the current mode of civil litigation in the US. The defendant is required to prove innocence, which is the opposite of criminal law.
[ link to this | view in thread ]
nasch (profile), 29 Jul 2010 @ 2:33pm

Re: Burden of proof
That is the current mode of civil litigation in the US. The defendant is required to prove innocence, which is the opposite of criminal law.

I believe that is incorrect. From WP: 'The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.”'

and: 'In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.'

Can you provide a reference indicating the opposite? Perhaps you're referring to defamation per se?

"Within the context of defamation, that means that the plaintiff must establish by a preponderance of the evidence that the defendant's statements were false, and that the defendant knew or reasonably should have known them to be false at the time the statements were made. Defamation per se provides a significant exception to that rule: Typically, where the statements made by the defendant constitute defamation per se, the defendant has the burden of proving that the allegations are true."
http://www.attorneys-usa.com/intentional/defamation.html

"The four (4) categories of slander that are actionable per se are (i) accusing someone of a crime; (ii) alleging that someone has a foul or loathsome disease; (iii) adversely reflecting on a person’s fitness to conduct their business or trade; and (iv) imputing serious sexual misconduct."

So if you're sued for one of those, the plaintiff only has to prove that you actually said it, and then after that you have to prove that what you said is true - because truth is an absolute defense against defamation in the US.
[ link to this | view in thread ]