Libel tourism: Protecting yourself at home and abroad

In addition to knowing what they can be sued for, web-based authors should also be aware of where they can be sued. The accessibility of online publications from virtually anywhere worldwide has presented jurisdictional issues not necessarily seen in cases involving traditional media, namely the question of whether digital journalists can be sued in courts hundreds or thousands of miles away from where they live and work.

When these cases arise, judges in most states must decide whether the blogger-defendant has enough contacts with the state in which he or she is sued that defending a lawsuit there would not violate the constitutional right of due process.

Of importance to courts that have considered this issue is whether the web site somehow targeted residents of that particular state and whether the plaintiff suffered harm there. However, several courts recently have held that such an intent to attract or serve an audience in that state is not required; in some instances, the mere fact that an electronic communication is accessible in that locale is enough.

A federal court in Florida, for example, recently held, in a case titled Sui v. Wu, that it had jurisdiction over the director of a Washington, D.C.-based human rights foundation who publicly questioned the source of human corpses supplied to the controversial “Bodies” exhibit simply because the allegedly defamatory statements were published on the organization’s web site, which “is both accessible in Florida and accessed in Florida.”

In light of this trend, online content providers may want to consider tailoring their content so that it would not be actionable in states with more conservative definitions of what constitutes defamation.

A related jurisdictional tangle for traditional and Internet-based writers alike is so-called “libel tourism,” or attempts to bypass American law, which has strong First Amendment protections, by suing authors in any country where someone bought the publication or read it online.

A recently enacted federal law designed to eliminate the chilling effect on publishers who, but for the fear of an international lawsuit, would have created works about important public matters should provide some protection. Under the SPEECH Act, a litigant who has obtained a libel judgment against an American writer in a foreign court may not enforce that judgment in the United States unless and until an American court determines that the judgment is consistent with First Amendment safeguards. The law also requires that foreign libel judgments comply with Section 230 of the Communications Decency Act, which insulates online service providers from liability for allegedly defamatory material posted by third parties.

In perhaps the first application of the SPEECH Act, a Missouri appellate court in April reversed a lower court’s recognition of an Ontario defamation judgment against an American book author. According to the court in Pontigon v. Lord, the trial court did not analyze whether the Ontario judgment met First Amendment standards of free speech and freedom of the press protection; thus, the judgment and nearly $50,000 damages award could not be enforced against the Missourian author.

Media lawyers who worked for passage of the federal legislation have said that it will likely prove most beneficial to bloggers and other individual publishers with little foreign resources but big contributions to the public discourse. Thus, online content providers who are subject to international defamation judgments should familiarize themselves with the law’s provisions so they can avail themselves of its numerous protections.