LIBEL/PRIVACY SPEECH Act protects against libel tourism Federal 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 an all-time low in the number of defamation and privacy lawsuits against the media in the United States, a British media law blog announced that libel claims there reached a record high last year. Attorneys and media law scholars have opined about the trend, providing a variety of legal explanations but stop- ping short of predicting the future, if any, of libel cases against the mass media. But one woman — the subject of a British libel judgment her- self— did not waver in her prediction that the number of libel cases, at least those brought against American au- thors, in England and other countries will decline significantly in coming years, thanks to the recent passage of the federal libel tourism law. "It's already working," according to book author and American Center for Democracy Director Rachel Ehrenfeld, whose plight mo- tivated Congress' action. "We have already heard stories of lawsuits not being filed against Americans. Foreign lawyers made threats, and when [the law] was ex- plained to them, the [threatened] people didn't hear from them again." While the long-term effects of the Securing the Protection of our Enduring and Established Constitutional Heritage Act, or SPEECH Act, are yet to be seen, its unanimous congressional passage and presidential approval in August are seen as a victory for many American authors and publishers, who are now protected from libel tourism, or the practice of bringing libel lawsuits in countries where the First Amendment protections are not as strong as those in the United States. Previously, merely purchasing a book or reading an article on the Internet in another country was enough to expose some writers to lawsuits in foreign countries. Just ask Ehrenfeld, arguably the SPEECH Act's biggest and most outspoken advocate. Her 2003 book, "Funding Evil: How Terrorism is Financed — and How to Stop It," angered Saudi billionaire Sheikh Khalid Bin Mahfouz, who claimed the work defamed him by link- ing him to the financing of terrorism. Although the book was primarily sold in the United States, 23 copies ordered from Amazon.com were shippied to England. This, and the posting of a chapter of the book on the internationally acces- sible ABC News website, convinced a British court to exercise jurisdiction over Ehrenfeld. She never acknowl- edged jurisdiction nor defended the suit, re- sulting in the Brit- ish court's entry of default judgment against her — a sort of scarlet letter that can follow her any- where and ad- versely affect her ability to, among other things, obtain a mort- gage, travel overseas or enter into employment contracts, said Kurt Wimmer, a Washington, D.C., media lawyer who testified during the U.S. Sen- ate Judiciary Committee's hearing on the libel tourism bill in Eebruary. "These kinds of judgments have a chilling effect from the moment they are rendered," Wimmer said. Designed to "promote the vigor- ous dialogue necessary to shape public policy in a representative democracy," the SPEECH Act seeks to eliminate this chilling effect on authors and publish- ers who, "but for the fear of a foreign lawsuit," might otherwise have written or published works about matters of public importance, according to the law's findings. To that end, the SPEECH Act bars U.S. courts, both federal and state, from recognizing or enforcing foreign libel judgments unless certain requirements are met, including consistency with the U.S. Constitution. More specifically, when a party who has obtained a libel judgment against an American author or publisher in a foreign court comes to an American court to enforce that judg- ment, the court is prohibited from doing so until it determines that the judgment is consistent with First Amendment safeguards. For example, the American court would have to find that, in obtaining the libel judgment overseas, the part}' seeking its enforcement was able to prove the falsity of what was written. That's because the requirement that a libel plaintiff bear the burden of prov- ing falsity, as opposed to the defendant having to prove the truth of what he or she wrote, is a constitutional protection afforded under the First Amendment. Although that standard is not required in most foreign countries, under the SPEECH Act, it must be met before any libel judgments from those countries can be recognized in American courts. Courts also are prohibited from rec- ognizing or enforcing these judgments when the part)' opposing them convinces the court that the foreign court's exercise of jurisdiction over that person violated due process requirements that the Con- stitution imposes on American courts. That is, for the judgment to be en- forceable, the person against whom it was obtained must have had sufficient contacts with the foreign state and en- gaged in continuous and systematic acts there such that he or she could expect to be sued there. The SPEECH Act also protects on- line service providers by requiring that foreign libel judgments also comply with Section 230 of the Communications Decency Act, which insulates these pro- viders from liability for material posted by third parties. Moreover, a U.S. citizen who can show that a foreign libel judgment against him or her is inconsistent with the Constitution or Section 230 of the Communications Decency Act may 2 0 THE Nr:\\'s & THF L \\\' FAII 2010