A new bill was introduced on March 4th by Peter King of New York that would create a federal cause of action in tort for so-called Libel Tourism. Libel Tourism is forum shopping. It is the strategic selection of plaintiff friendly jurisdictions in defamation cases.
The bill is known as the Free Speech Protection act of 2009 and it lives up to its name. The stated purpose of the act, among other things, is to curtail the suppression of free speech by allowing qualifying individuals to sue other persons who are suing them extraterritorially because defamation laws in the foreign jurisdiction are more plaintiff friendly:
(a) Cause of Action – Any United States person against whom a lawsuit is brought in a foreign country for defamation on the basis of the content of any writing, utterance, or other speech by that person that has been published, uttered, or otherwise disseminated primarily in the United States may bring an action in a United States district court specified in subsection (f) against any person who, or entity which, brought the foreign suit if the writing, utterance, or other speech at issue in the foreign lawsuit does not constitute defamation under United States law.
Creating a separate cause of action in tort for libel tourism has several implications and not just in the legal arena. It sends a very clear message to countries who are not as protective of free speech that the U.S. will not permit its laws to be circumvented or undermined. It will also undoubtedly create an entirely new foreign defamation cottage industry given that attorney’s fees are awardable under the bill, not to mention the possibility of treble damages.
But I wonder how courts will interpret this bill. The language ". . . primarily in the United States . . ." is extremely vague and open to interpretation.
I also wonder how courts will apply section (c), which is the remedies section. It essentially allows for injunctive relief and damages, but the damages appear to be pretty heavy. Not only can the person bringing the suit under this bill ask for damages in the amount of the foreign judgment, but they can also get costs, legal fees, and EVEN treble damages under the right circumstances.
It appears, however, that this bill is a step in the right direction, but so was the Communications Decency Act (with regard to internet pornography), until courts began broadly interpreting it to effectively immunize internet service providers from liability for torts committed by users of their systems.
So what effect do you think this bill will have on libel laws in other countries, if any?