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The Senate Judiciary Committee in a hearing Tuesday morning voiced support for legislation that would attempt to deter foreign libel lawsuits against American authors and publishers but left the door open to further negotiation about specific legislative action.
Because other countries do not have the strong speech protections of the First Amendment, libel plaintiffs often file suit abroad to win judgments against Americans that would have been lost in U.S. courts. Attorneys Kurt Wimmer and Bruce Brown, who work with media defendants, testified about the potential harms of international forum shopping for libel suits, which is known colloquially as libel tourism.
“If American authors and publishers run the risk of foreign lawsuits with every article or book that they write, there is a race to the bottom and to the most chilling and restrictive standards,” said Committee Chairman Patrick Leahy, D-Vt. "This potential chilling effect will in turn deprive Americans of the kind of candid commentary and uninhibited information that our laws are designed to foster and protect.”
Federal legislation in particular is necessary because libel tourism laws exist in some states but are not uniform, Brown said.
While under U.S. law, a defendant must have significant ties to the jurisdiction for courts to hear a case, other countries do not require as strong of a connection. Even Internet publications that can be accessed in the country or the existence of a few copies in the country may permit lawsuits.
Rachel Ehrenfeld, who attended the hearing, is one example of an author who has been damaged by foreign libel laws. Ehrenfeld's book about terrorism funding led to a libel claim filed by a Saudi businessman that resulted in a judgment against her in British court. Though these types of judgments are often not enforced, they have a harmful chilling impact nonetheless, Wimmer said. Ehrenfeld’s case prompted New York to pass libel tourism legislation in 2008.
Two federal libel tourism bills, similar to ones introduced in the last Congress, call for the enforcement of libel judgments only if the publication would constitute defamation under U.S. law and provide the ability for a defendant to seek review of any international libel judgment in U.S. courts. This morning’s hearing focused on weighing the benefits, disadvantages, and legal authority for other potential provisions of such a law, such as the awarding of libel defendants’ attorneys’ fees and damages.