Libel Tourism Law Passes!

Bla bla bla

Representative Steve Cohen (D-TN) represents the people of Memphis, TN. His district also includes Graceland. That can’t be a coincidence, because he is the Congressional King of Free Speech legislation.

Cohen sponsored HR 2765, the Libel Tourism bill, and Obama signed it into law on Tuesday. The new law now protects Americans from defamation judgments that plaintiffs might obtain abroad — in countries where free speech receives less protection than it does in the USA. The need for such a law arose back when American author Rachel Ehrenfeld wrote a book, “Funding Evil: How Terrorism is Funded and How to Stop It,” and published it in New York. A Saudi, Khalid Bin Mahfouz, did not appreciate how he was portrayed in the book — as a major financier of terrorism. He filed suit in the U.K., and based on the sale of 23 copies sold in England, the U.K. court exercised jurisdiction over Ehrenfeld. She refused to appear, so the judge entered a default judgment against her for $225,000. (source)

There is a reason that Bin Mahfouz chose to file suit in the U.K. Britain’s libel laws are very favorable to plaintiffs, and they don’t have a pesky First Amendment Bill of Rights to get in the way of wealthy plaintiffs attempts to trample on others free speech rights.

Bin Mahfouz is one of the world’s most notorious libel tourists, having used or threatening to use plaintiff-friendly British courts to sue for libel at least 36 times since 2002. (source)

The next time Bin Mahfouz decides to sue an American in the UK, he is going to need to obtain the judgment by getting the UK court to impose First Amendment protections as well as Due Process considerations.

But wait, there’s more. Our heroes over at Public Citizen lobbied for an additional measure to be added to the bill. The bill also provides new strength to Section 230.

The discussion on the floor just before passage recognizes the need to extend section 230 protection because, otherwise, plaintiffs are tempted to try to suppress speech “by suing a third-party interactive computer service, rather than the actual author of the offending statement. In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.” (source)

Here’s the beautiful thing about this: Without this addition to the law, web hosting companies and other “interactive service providers” would likely have become the targets for libel tourism suits. Libel tourists, frustrated by their attempts to impose foreign libel standards on American speakers, would simply have sued the service providers. Since Section 230 only protects you in U.S. courts, that might have meant that American service providers would have simply become collateral damage in the fight against free speech.

Now, even if a service provider is the target of a foreign libel suit, the foreign court will either need to apply Section 230, or its judgment will not be enforceable in the United States. This creates a pretty good incentive for some online service providers to locate their businesses inside the United States.

The Legal Satyricon would like to extend its First Amendment Bad Ass award to Cohen — our only two-time winner. At the same time, we are also joyfully compelled to extend the award to Paul Allen Levy and his team at Public Citizen. Boys, your country is in your debt.

If we can get a national anti-SLAPP law on the books — another project that Rep. Cohen is working on — we may find that the First Amendment is entering a period of renaissance.

5 Responses to Libel Tourism Law Passes!

  1. evrenseven says:

    So I’m a little confused- why are judgments of foreign courts enforceable in the US to begin with?

    Also, the decision is still enforceable in the UK, I’m assuming, to whatever extent the defendant has attachable assets in the UK.

    The new Prime Minister has made changing the libel one of the main foci of his administration.

  2. John Burgess says:

    As Bin Mahfouz died nearly a year ago, I’m sure he’ll not be bringing any more cases to UK courts.

    Interestingly, he successfully brought libel cases against authors in French courts and US courts threw out the ‘Golden Letter’ evidence upon which these (and Ehrenfeld’s) based their allegations.

    So, does the US law now stop enforcement even if the plaintiff is right, but the process isn’t in line with the 1st Amendment?

    • I wasn’t aware that he was dead.

      But, to answer your question… I guess so. I really don’t see how the plaintiff can be “right,” yet the speaker’s free speech rights weren’t taken into account to determine that. For example, in New York Times v. Sullivan, the plaintiff was “right” about a lot of the facts, but it didn’t matter, since the plaintiff had to overcome the actual malice standard.

  3. KWW says:

    I also thought it was a nice touch to throw in that by referencing 230 in this law, Congress is not intending that 230 only applies to defamation causes of action. I know the case law already proves that, but it still looks good.

  4. Paul Tweed says:

    The signing of the Speech Act by President Obama is the final endorsement of what has been the most effective and concentrated lobbying campaign since that orchestrated by the tobacco industry some years ago. The priority afforded to this US “Libel Tourism” legislation is as inappropriate and unnecessary as it is bewildering. As a UK/Irish media lawyer of more than 30 years standing, I have never once sought to enforce a UK libel judgment in the US, and I am still waiting to be advised of one single example of such an attempt by any other practitioner.

    As the lobbying campaign is continuing to be driven by the publishing industry in the UK, I again have to ask the question…….what could possibly have justified such a high profile campaign, in circumstances where the number of libel actions brought by international personalities in the UK has been negligible? Notwithstanding this scenario, we have this media frenzy persistently criticising our defamation laws – legislation which, in my respectful opinion, has contributed in no small measure to ensuring that our broadsheets are among the most credible in the world. In the absence of such laws, it would effectively be impossible for the man on the street to have access to any form of justice, while encouraging the often one sided propaganda that is regularly exhibited in the American press.

    Whilst I have absolutely no problem with a fair and balanced debate, the hysteria emanating from certain sections of our press is both misleading and mischievous, and is geared more to protecting the financial interests of publishers, rather than having any reasonable justification.

    On another note, now that comity appears to have been thrown out the window, it will be interesting to see how the President and Congress react if and when any similar moves are made by other countries to undermine and circumvent US laws!

    Paul Tweed
    Senior Partner
    Johnsons Law Firm
    Belfast | Dublin | London


%d bloggers like this: