41 Pages Posted: 1 Mar 2009 Last revised: 14 Jun 2009
Date Written: February 28, 2009
On April 28, 2008, New York Governor David Paterson signed into law the Libel Terrorism Protection Act, the nation’s first legislative attempt at protecting American authors and publishers from a recent explosion of forum-shopping, aptly called “libel tourism.” Instead of suing American members of the media in the United States, wealthy litigants increasingly file suit in claimant-friendly countries, where the publication and the parties have little connection and the plaintiff is more likely to win. Since its enactment, New York’s bold and controversial law, which allows a New York defendant to obtain an order barring enforcement of the foreign libel judgment, has become a national model. Illinois passed its own libel tourism law in August 2008, and, at the time of publication, Congress is currently considering two variations of a similar federal statute, one of which unanimously passed the House of Representatives in September 2008.
While many heralded the New York law as a victory for free speech, even its supporters have identified potential constitutional and policy problems with it. This note explores whether the problem of libel tourism is sufficiently serious to merit such a legislative response and, if so, whether the New York law is good policy and stays within constitutional parameters. Part I describes the factors that created the forum-shopping trend and assesses the extent of any resulting chilling effect on American authors and publishers. Part II considers how U.S. courts have responded to the phenomenon by not enforcing foreign libel judgments on public policy grounds. Part III discusses the Ehrenfeld v. Bin Mahfouz case, which triggered a national response culminating in the New York legislature’s rejoinder as well as similar federal bills. Part IV explores potential constitutional and policy problems posed by the New York law, including (1) jurisdictional overreaching; (2) comity concerns; (3) overbreadth; (4) vagueness; and (5) redundancy and inadequacy concerns. Part V concludes that, while the New York law provides an important first step towards protecting authors from the threat of foreign libel judgments, federal legislation should avoid its jurisdictional overreaching and achieve greater deterrence by modeling a remedy after state anti-SLAPP statutes. This model would allow defendants to recover damages from those true libel tourists who file spurious claims abroad with the purpose of chilling their speech. Such legislation, which singles out and punishes libel tourists, would deter future harassment of American authors and publishers and provide a remedy for those with assets subject to enforcement abroad.
Keywords: Libel Tourism Law
JEL Classification: K1, K00, K13
Suggested Citation: Suggested Citation
Staveley-O'Carroll, Sarah, Libel Tourism Laws: Spoiling the Holiday and Saving the First Amendment? (February 28, 2009). NYU Journal of Law & Liberty, Vol. 4, No. 3, 2009. Available at SSRN: https://ssrn.com/abstract=1350994