IMAGINE THAT you, an American citizen, were asked for your views about a prominent American public figure by a California website. You responded and found yourself sued for libel by your fellow citizen not in the United States but in England and judged under a legal regime that not only does not recognize the First Amendment but whose judges trumpet their disdain for it. Or imagine that you wrote a book in New York about the funding of international terrorism that commented critically about dubious activities of a prominent Saudi billionaire and found yourself sued by him in London, where neither of your live; where your book had not even been published and had sold a grand total of 23 copies on Amazonﾒs website.
These cases, both real, have three things in common. They involve Americans being sued abroad for libel for statements uttered or works written in the United States for American readers. If commenced here, the cases probably would have been promptly dismissed because of the First Amendment protection embodied in our libel law. And in both cases, the transmission of the supposedly libelous material occurred via the Internet. Recently, Senator Patrick Leahy, chairman of the Judiciary Committee, held hearings designed to determine how best to protect American authors and speakers from being subjected to foreign libel laws that are far from protective of free expression, let alone consistent with the First Amendment.
The nation in which most such cases have been commenced is the United Kingdom, a particularly attractive forum for those seeking to punish speech and the current world capital of libel litigation. American movie stars have sued American-owned magazines there for claims that would be quickly dismissed here. Russian and Saudi businessmen have sued Forbes and Dow Jones there for articles having nothing to do with England. The New York Times has been sued there by a Greek national, notwithstanding that England’s only connection with the case is the 177 copies of the newspaper sold there and four online hits to the article. The pervasiveness of the Internet has provided foreign nations with what they claim is a strong basis for entertaining libel claims that otherwise have little to do with them.
A recently retired English judge, Lord Hoffman, summed it up: “If you publish an article on the Internet, you are inviting the whole world to read it.” English libel law is especially problematic. The UN Human Rights Committee has expressed its “concern” that English libel law has “discouraged critical media reporting on matters of serious public interest.” Leading American newspapers have warned that they may no longer publish in that nation. One consequence of the application of England’s claimant-friendly law is indefensible verdicts. Liberace won a celebrated libel case against an English gossip columnist for suggesting he was gay; he was. John Profumo, while minister of war, won libel damages for the published suggestion that he had been involved sexually with Christine Keeler, a prostitute; he had been. Lord Jeffrey Archer won a celebrated case over a charge that he had consorted with a prostitute; so he had.
With all the flaws of the American system, no similar American examples come to mind. But for the insistence of British judges that even the slightest supposed “publication” in their nation can justify their entertaining cases commenced by foreigners against other foreigners, this would remain an issue for Britain itself to resolve. A recent parliamentary report and statements of some British political leaders offer some reason for hope that it may take some useful steps in that direction. From an American perspective, however, there can be no guarantee how much protection any new legislation may afford. Nor is the problem of Americans being subjected to speech-destructive laws limited to Britain.
That is why legislation, now under consideration by Congress, would bar enforcement of foreign libel judgments against Americans (four states have already passed such laws); would permit Americans to obtain declaratory relief of the unenforceable of such foreign judgments; would permit the recovery of attorneysﾒ fees; and, in extreme cases, might permit the award of damages. Some foreign observers dismiss such legislation, as Lord Hoffman has, as rooted in a myopic and deeply parochial American view that our way ﾓis the only way for the entire world.ﾒﾒ He misses the point. It is the only way for us.
Floyd Abrams, a senior partner in Cahill Gordon & Reindel, LLP, is the author of “Speaking Freely: Trials of the First Amendment.” ﾩ Copyright 2010 Globe Newspaper Company.