43 Pages Posted: 30 Nov 2009
Date Written: November 28, 2009
Foreign defamation judgments obtained against American authors by libel tourists give rise to a jurisprudential quandary. On one hand, foreign defamation judgments rest on substantive laws offering much less protection to the American speaker than would be available in U.S. courts pursuant to the First Amendment. On the other hand, well-rooted doctrines of private international law and conflict of laws jurisprudence strongly favor the recognition of foreign judgments even though the receiving court disagrees with the policies and rules of decision underlying the foreign judgment. This quandary is made more complex by recently adopted state statutes prohibiting the recognition and enforcement of the judgments of foreign tribunals and opening the door to preemptive declaratory relief against litigants appearing in foreign courts. How should courts deal with foreign defamation judgments when they are presented for recognition and enforcement. This article argues that U.S. courts should not deny enforcement of foreign defamation judgments solely on the ground that the judgment offends domestic policy. Such an approach will needlessly invite reciprocal collateral attack on U.S. judgments abroad. Instead, U.S. courts should, consistent with well-recognized principles of sovereignty and comity, collaterally examine the jurisdiction of the foreign tribunal. Many recent libel tourism judgments, as demonstrated in this article, are issued by courts lacking sufficient contacts with the dispute. The judgment of a court lacking jurisdiction is void and unenforceable.
Keywords: Libel, Libel Tourism, First Amendment, Foreign Defamation, Recognition and Enforcement of judgments, Conflict of laws
Suggested Citation: Suggested Citation
McFarland, Robert L., Please Do Not Publish this Article in England: A Jurisdictional Response to Libel Tourism (November 28, 2009). Mississippi Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1514988