Prohibiting Recognition and Enforcement of Foreign Defamation Judgments

By:  Pete King
Date: Sept. 27, 2008
Location: Washington, DC



Mr. KING of New York. Mr. Speaker, today I rise in support of H.R. 6146, legislation that will prohibit the recognition and enforcement of foreign defamation judgments based upon a publication that concerns a public figure or a matter of public concern. This bill, like legislation (Free Speech Protection Act) that I introduced earlier this year attempts to deal with the issue of ``libel tourism'' that threatens not only Americans' First Amendment freedom of speech but also their ability to inform the general public about existential threats; namely, who are the terrorists and who are their supporters. As the Ranking Member on the House Committee on Homeland Security I am regularly briefed on dangers to the homeland and know how grave these threats are. We cannot allow foreigners the opportunity to muzzle Americans for speaking the truth about these dangers!

Libel tourism is a recent phenomenon in which certain individuals are obstructing the free expression rights of Americans (and the vital interest of the American people) by seeking out foreign jurisdictions (``libel shopping'') that do not provide the full extent of free-speech protection that is enshrined in our First Amendment. Some of these actions are intended not only to suppress the free speech rights of journalists and others but also to intimidate publishers and other organizations from disseminating or supporting their work.

Unlike in the United States where the burden of proof is on the plaintiff to show that the publication was not only false but also malicious, in countries such as the United Kingdom it is the reverse: The defendant is required to appear in court and prove what he has written was 100 percent factual. And some of the ``tourists'' claims of jurisdiction are tenuous at best. In many cases, not only are none of the individuals (author, litigant, or publisher) associated with the case living in the venue of jurisdiction, but neither are the books

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published there. These ``tourists'' stretch the law by claiming a handful of copies of the book were purchased over the internet in that country. The author must then hire an attorney, travel to the foreign country, and defend himself or likely face a default judgment against him. Consequences include (but are not limited to) fines, public apologies, pulping of books, and the removal of them from bookstores and libraries.

We cannot change nor would we want to change other countries' (libel) laws. We must respect their rule of law as they ought to respect ours. However, we cannot allow foreign citizens to exploit these courts to shield personal reputations when it directly contradicts Americans' First Amendment protected speech, especially when the subject matter is of such grave importance as terrorism and those who finance it. We rely on a variety of sources for

intelligence and we cannot allow foreign litigants and foreign courts to tell us who can write and who can publish what. That is a dangerous path we do not want to follow.

Furthermore, the governments and courts of some foreign countries have failed to curtail this practice, permitting lawsuits filed by persons who are often not citizens of those countries, under circumstances where there is often little or no basis for jurisdiction over the Americans against whom such suits are brought.

Some of the plaintiffs bringing such suits are intentionally and strategically refraining from filing their suits in the United States, even though the speech at issue was published in the United States, to avoid the Supreme Court's First Amendment jurisprudence and frustrate the protections it affords Americans.

But this issue is also very troubling for the authors, journalists, and even publishers who attempt to write on these subjects. Already we have seen examples of authors having difficulty getting their articles or books published because of publishing houses' fear of being sued overseas. Some companies have even gone as far as to pay large settlements to avoid having to go to court. So not only are authors being injured for the works they have previously written but they and their publishers are being intimidated from writing future works on these important topics. The free expression and publication by journalists, academics, commentators, experts, and others of the information they uncover and develop through research and study is essential to the formation of sound public policy and thus to the security of Americans.

The Americans against whom such suits are brought must consequently endure the prohibitive expense, inconvenience, and anxiety attendant to being sued in foreign courts for conduct that is protected by the First Amendment, or decline to answer such suits and risk the entry of costly default judgments that may be executed in countries other than the United States where those individuals travel or own property.

In turn, the American people are suffering concrete and profound harm because they, their representatives, and other government policy-makers rely on the free expression of information, ideas and opinions developed by responsible journalists, academics, commentators, experts, and others for the formulation of sound public policy, including national security policy.

Having said that, the United States respects the sovereign right of other countries to enact their own laws regarding speech, and seeks only to protect the First Amendment rights of Americans in connection with speech that occurs, in whole or part, in the United States.

That is why earlier this year I introduced the Free Speech Protection Act, H.R. 5814, to defend U.S. persons who are sued for defamation in foreign courts. This legislation allows U.S. persons to bring a Federal cause of action against any person bringing a foreign libel suit if the writing does not constitute defamation under U.S. law. It would also bar enforcement of foreign libel judgments and provide other appropriate injunctive relief by U.S. courts if a cause of action is established. H.R. 5814 would award damages to the U.S. person who brought the action in the amount of the foreign judgment, the costs related to the foreign lawsuit, and the harm caused due to the decreased opportunities to publish, conduct research, or generate funding. Furthermore, it

would award treble damages if the person bringing the foreign lawsuit intentionally engaged in a scheme to suppress First Amendment rights. It allows for the expedited discovery if the court determines that the speech at issue in the foreign defamation action is protected by the First Amendment. Finally, nothing in this legislation would limit the rights of foreign litigants who bring good faith defamation actions to prevail against journalists and others who have failed to adhere to standards of professionalism by publishing false information maliciously or recklessly. The Free Speech Protection Act does, however, attempt to discourage those foreign libel suits that aim to intimidate, threaten, and restrict the freedom of speech of Americans. I am proud to have worked closely with Senators. ARLEN SPECTER and JOE LIEBERMAN who have introduced companion legislation in the Senate.

I support the passage of H.R. 6146, a Federal version of New York State's ``Rachel's Law,'' which will provide protection to U.S. authors, journalists, and publishers against the domestic enforcement of defamation judgments from foreign countries with less free speech protections than the U.S. The protection of free speech enshrined in the First Amendment is one of America's most cherished rights, and it is unacceptable that First Amendment rights of Americans can be potentially undermined or restricted by foreign court judgments based on lower free speech standards.

The impetus for a Federal ``Rachel's Law'' is the case of Dr. Rachel Ehrenfeld, a U.S. citizen and Director of the American Center for Democracy. Dr. Ehrenfeld's 2003 book, ``Funding Evil: How Terrorism is Financed and How to Stop It,'' which was published solely in the United States by a U.S. publisher, alleged that a Saudi Arabian subject and his family financially supported al Qaeda in the years preceding the attacks of September 11. He sued Dr. Ehrenfeld for libel in England though because under English law, it is not necessary for a libel plaintiff to prove falsity or actual malice as is required in the U.S. After the English court entered a judgment against Dr. Ehrenfeld, she sought to shield herself with a declaration from both Federal and State courts that her book did not create liability under American law, but jurisdictional barriers prevented both the Federal and New York State courts from acting. Reacting to this problem, the Governor of New York, on May 1, 2008, signed into law the ``Libel Terrorism Protection Act'', commonly known as ``Rachel's Law.''

I support H.R. 6146 because it prohibits U.S. (domestic) courts from enforcing these outrageous defamation suits. We must stand up to the terrorists and their financers, supporters, and sympathizers. However, this bill does not go far enough nor does it resolve the problem of ``libel tourism.'' Foreign litigants will still be allowed to file these libel suits overseas without the worry of being countersued here in the U.S. If this bill passes, they will never see a dime of those hefty judgments they were awarded, but that's not what they are after in the first place. They want the default judgment. They want the publicity. They want the apology. And they want these books to disappear. But most of all they want to intimidate. They want to make sure people are afraid of writing anything about them. And it's working. Journalists are even afraid of writing about this legislation! That's their goal here. Not to collect the money. Many of them are already wealthy, and if they really cared about collecting a monetary judgment they would file these suits in the U.S. in the first place. They choose not to, however, because they know they would never win in a U.S. court.

Finally, I support H.R. 6146 because it is a first step in the right direction. I am a cosponsor of this bill and thank Representatives STEVE COHEN and DARRELL ISSA for introducing it. H.R. 6146 is an important and necessary part of any ``libel tourism'' bill. Unfortunately, it doesn't put an end to the problem and doesn't provide any deterrence from these suits being filed in the first place. But it is my hope that during the 111th Congress we can have hearings on this important issue and that Representatives COHEN and ISSA, along with Senators SPECTER and LIEBERMAN and I, can sit down together and craft a bill that we can all agree on and that will solve this problem once and for all.


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