House of Representatives passes US libel tourism bill

The United States House of Representatives has passed a bill aimed at blocking libel tourism cases brought against American writers in foreign jurisdictions.

The bill, sponsored by Representative Steve Cohen, a Democrat from Tennessee, was passed on a voice vote – a relatively rare procedure in the House. It now has to pass through the Senate and go to the President.

The bill is aimed at protecting writers, journalists, publishers, bloggers and providers of Internet and computer services from libel judgments obtained by claimants in foreign jurisdictions such as England and Wales.

It would enable US federal courts to block the enforcement of any libel judgment in favour of a claimant if the court believed that the protections for freedom of speech in that jurisdiction were “inconsistent with the First Amendment to the Constitution of the United States”.

The claimant would bear the burden of proving to the US court that any foreign judgment met the requirements of the First Amendment.

The bill would also allow Americans to claim their costs from would-be claimants if the US court blocks an attempt to enforce a judgment.

It mirrors legislation already passed by the state legislatures in New York, Illinois, California, Florida, New Hampshire and Hawaii.

A major difference between American libel law and the law applied in England is that in the US claimants have to show that material published about them is substantially false – but in the English jurisdiction the assumption is that the material is false unless the defendant is able to show otherwise.

In addition, public figures who wish to sue in US courts have to show that what was published about them was published maliciously, or with recklessness as to its truth or falsity.

Solicitor Mark Stephens, head of the media team at London law firm Finers Stephens Innocent, said the passage of the bill through the House of Representatives demonstrated the level of concern in the US parliamentary process about libel tourism and the failure of the UK and other courts to do anything about it.

“Now it really does fall on the Commons Culture, Media and Sport select committee, which has been investigating our libel law, to pick up the baton and try to prevent a legislative diplomatic incident,” he said.

The rash of legislation in the US follows the case of New York-based academic, researcher and writer Dr Rachel Ehrenfeld, who in May 2005 was ordered to pay a total of £30,000 in damages plus costs after being sued in the High Court in London by multi-millionaire Saudi Arabian businessman Sheikh Khalid bin Mahfouz and his two sons.

They sued over Ehrenfeld’s book, Funding Terrorism, which was only published in the United States. The high court dealt with the case on the basis that 23 copies were sold into the English jurisdiction via the Internet, and because the first chapter was available on the Internet.

Ehrenfeld refused to respond to the litigation, and the High Court awarded summary judgment to Sheikh bin Mahfouz and his sons.

The New York legislature acted – and made its legislation retrospective – after the state and federal courts held that the State’s citizens could not be protected from the enforcement of judgments by foreign libel courts.

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