U.S. legislation limits suits on 1st Amendment grounds

“Libel tourism” sounds like it refers to something like an egregious defamation of the Queen Mary II, but in the eyes of Congress, it is a First Amendment threat.

It was a problem deemed urgent enough for lawmakers to recently pass, by an uncharacteristically overwhelming margin, a law to limit it. The bill, expected to be signed into law by President Obama, will prevent U.S. courts from enforcing foreign defamation judgments against American publishers, writers and others if those countries don’t match the principles of the First Amendment.

The impetus for the law were fears that these judgments were increasingly being used by unsavory overseas oligarchs or foreign officials to stifle noble investigative reporting. But it’s undoubtedly of relevance in Hollywood, since much of the publicity surrounding “libel tourism” involves celebrities suing an American publication in U.K. courts.

Britney Spears, Jennifer Lopez and Cameron Diaz are among those who have in recent years sued the National Enquirer in the U.K., where plaintiffs have found friendlier territory than the United States for pursuing a claim. In London courts, for example, a defamatory statement is presumed to be false unless a defendant can prove it is true, a contrast to American courts, where just about the opposite is true. More often than not, publications reached a settlement with a celebrity before a judgment could be rendered. Diaz, for instance, settled for what was described as “substantial” damages and an apology, over a claim she had a “smooching session” with a married man.

Proponents of the bill say a law is needed as the Internet has changed the dynamics: Mere access to the Web can create a liability, not just when a publication or broadcast has international reach. In the U.K., they say, “libel tourism” has even created a cottage industry of legal maneuvering. That produces a “chilling effect” on speech, particularly among smaller publishers with fewer resources, notes Kelli Sager, chair of the media practice at Davis Wright Tremaine in Los Angeles. “With the advent of the Internet the risks for publishers in the United States have become fairly substantial,” she said.

“You have to ask yourself, What is wrong with a system where an American should have the right to sue an American publication in a foreign country?”

But what’s unclear is if the U.S. bill actually will curtail it. Belfast solicitor Paul Tweed, who has represented Lopez and Spears and a number of other public figures, says he’s never sought to enforce a libel judgment in the United States, nor is he aware of any effort to do so. Calling the bill a “political PR stunt” that “offends all principles of comity,” he says his clients still won’t be prevented from suing in overseas courts, in particular against the U.K. distributors of a pub.

Tweed, who also reps media clients, says his opposition is not about limiting speech but finding fairness in the age of the Internet, which makes it all the more difficult to refute untrue rumors as they quickly spread worldwide.

“These are not claims that have been brought frivolously,” Tweed said. “What this law is really, is a law protecting the National Enquirer.”

The legislation doesn’t address a whole other area of media litigation, in which laws overseas differ from those in the U.S.: privacy. Brad Pitt and Angelina Jolie last week settled a privacy claim in London’s High Court against a British tabloid that reported they were planning to split.

What instigated congressional action was not a celebrity, but Rachel Ehrenfeld, an author who was sued in London by Saudi billionaire Khalid bin Mahfouz, whom she charged in her book “Funding Evil” of financing Al-Qaeda and other terrorists organizations. She refused to acknowledge the British jurisdiction over her case, and a default judgment was made against her. She has helped lead the fight for an anti-libel tourism law in New York and at the federal level.

What may have greater impact is if all the attention over “libel tourism” triggers changes in Britain. Sandra Baron, the exec director of the Media Law Resource Center, notes all the attention to “libel tourism” has created a sense of “embarrassment” there, where lawmakers have been reviewing reforms to their own defamation laws.

“What would be a most positive outcome would be if the English took a look at what has become of their libel law and modified it in a way where we do not need” the congressional action, she said.

In Washington, Tweed and others could find few who would listen to their opposition.

Some celeb have been swayed to the cause against “libel tourism.” Gov. Arnold Schwarzenegger, who sued a British tab in 1990 and won a settlement, nevertheless last year signed a law to limit “libel tourism.”

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