Limiting ‘libel tourism’

It’s called “libel tourism” — the practice of bringing a defamation lawsuit against an author or publisher in a country with less robust protections of free speech than those afforded Americans by the 1st Amendment and Supreme Court decisions. Many Americans may be surprised to learn that a leading destination for libel tourists is the United Kingdom.

The United States can’t prevent Britain or other countries from making it easier to win libel suits that might not succeed in this country, where even publications that include errors have received 1st Amendment protection. But U.S. courts don’t have to honor them. Under legislation passed this week by the Senate, only foreign libel judgments that comport with U.S. law would be enforceable by state and federal courts. The House should adopt the Senate bill and send it to President Obama for his signature.

The campaign to protect authors from libel tourism has been led by Rachel Ehrenfeld, a U.S. citizen who was sued in Britain by a Saudi billionaire she accused of financing terrorist groups. Never mind that she didn’t live in Britain and that her book wasn’t published there. (A few copies were purchased online.) Rather than face the high legal costs and burdens of proof in London, Ehrenfeld chose not to contest the case, and the court ruled against her by default, ordering her to pay hundreds of thousands of dollars in damages and legal fees.

Several states have enacted so-called Rachel’s Laws to prevent libel tourists from using U.S. courts to enforce foreign judgments. California’s version, enacted last year, says that state courts won’t enforce libel judgments from other nations unless the foreign defamation law “provided at least as much protection for freedom of speech and the press as provided by both the United States and California constitutions.”

The bill that passed the Senate provides similar protections on a national level. Not only would foreign libel judgments be required to conform to U.S. standards in order to be enforced, but an author or publisher also could ask a federal court for a declaration that the foreign judgment was “repugnant to the Constitution or laws of the United States.” That would allow an author to clear his or her name even if a plaintiff hadn’t attempted to have a U.S. court enforce a judgment.

It’s true that U.S. courts rarely have enforced foreign libel judgments. But the threat of enforcement has a chilling effect. Ensuring that U.S. courts don’t collude in unfair proceedings would serve the ideal, enunciated by the Supreme Court in a famous libel case, that debate on public issues should be “uninhibited, robust and wide open.”