Perhaps no one at a House Judiciary subcommittee hearing Thursday understood the ramifications of foreign defamation lawsuits better than New York-based author Rachel Ehrenfeld.
Ehrenfeld, who was slapped with a libel judgment in England after losing a lawsuit, testified before the House Subcommittee on Commercial and Administrative Law, which held the hearing to consider a measure that would prevent U.S. courts from recognizing foreign libel judgments against U.S. defendants if the foreign country's law offers less protection that U.S. law. Media lawyers and a law professor also testified.
While no federal libel tourism law has been enacted yet, Ehrenfeld's case prompted the New York Legislature to pass a law last spring, preventing courts from recognizing foreign libel judgments. Last September, the House unanimously passed a bill, H.R. 6146, introduced by Rep. Steve Cohen (D-Tenn) that echoed the New York law and would prohibit U.S. federal courts from recognizing judgments that are deemed repugnant to First Amendment law.
"Until the new statute protected me . . . Mahfouz's English judgment hung over my head like a sword of Damocles and kept me up at night," Ehrenfeld said in her prepared statement.
Rep. Peter King (R-NY) and Sen. Arlen Specter (R-Pa.) introduced similar bills (H.R. 5814 and S. 2977, respectively) last year. Both bills went a step further than Cohen's, adding a provision allowing American journalists to bring countersuits against plaintiffs who try to enforce foreign judgments against them.
Much of the discussion at Thursday's hearing focused on a cause of action provision that is included in the King and Specter bills. Cohen questioned panelists as to whether they thought a cause of action was necessary.
New York University School of Law Professor Linda Silberman said she supports Cohen's bill and the need for libel tourism law in general, but was concerned that the King and Specter bills include ideas that are "much too aggressive an assertion of U.S. jurisdiction," even in situations where U.S. interests might be "compelling."
"The attempt to impose the standards of U.S. defamation law on the rest of the world goes too far in many situations," the professor said, "and the reach of this provision fails to give proper respect to the interest of other countries."
Silberman said she supported a more comprehensive federal statute.
"[The statute] should do so by developing a proposal for federal law on the recognition and enforcement of foreign judgments and viewing the issues in the context of the foreign concerns of which they are a part," she said.
The cause of action provision in King's and Specter's bills would serve as a deterrent to stop foreign plaintiffs from filing lawsuits against Americans in foreign courts. Cohen suggested that a provision requiring plaintiffs to pay the attorney fees of the media defendants might achieve the same goal in a more constitutionally acceptable manner.
Cohen added that an attorney fees provision would be "smaller teeth" for the law to wield than creating a cause of action.
Attorneys Laura Handman of Davis Wright Tremaine and Bruce Brown of Baker and Hostetler also testified before the subcommittee. All who testified before the subcommittee agreed in the importance of the bill in preserving the free speech of American authors.
The author was sued for her 2003 book, "Funding Evil: How Terrorism is Financed and How to Stop It," by a billionaire Saudi business man who Ehrenfeld alleged funded Osama bin Laden and other terrortists. But Khalid bin Mahfouz filed the lawsuit in Britain, where free speech is not given as much protection as in the United States. British law, as well as some other countries, require a defendant to prove the truth of the statements at issue – making it much more difficult for media defendants to win cases.
Because the Internet has made it easy for writers to send their work all over the world, plaintiffs are able to file lawsuits against U.S. authors and journalists in many of the countries that their articles reach. Proponents of the libel tourism bill argue that a law is necessary to prevent these suits from chilling the speech of U.S. writers.