Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases

Journal of Private International Law, Vol. 5, No. 3, pp. 471-490, 2009

U of Melbourne Legal Studies Research Paper No. 504

21 Pages Posted: 15 Nov 2010  

Richard Garnett

Melbourne Law School

Megan Richardson

Melbourne Law School

Date Written: November 15, 2010

Abstract

The application of private international law rules in cross-border libel cases has long been a controversial issue with little international consensus. The matter has flared with particular intensity recently in a number of English decisions involving US defendant publishers. In such cases English courts have applied domestic jurisdictional and choice of law standards without regard to international instruments such as the European Union Regulation on Jurisdiction and Judgments (Brussels I) or The Regulation on the Law Applicable to Non-Contractual Obligations (Rome II).

What are these standards? First, in terms of jurisdiction, an English court will allow a claimant to serve a non-EU foreign publisher out of the jurisdiction in respect of publications in England based on the fact that the local publications involve damage suffered arising from a tortious act committed in the forum. The existence of a local tort, when accompanied by a local reputation, means that in practice a defendant will rarely, if ever, be able to have proceedings dismissed on the ground that a foreign court is a more appropriate forum. Secondly, each act of publication creates a separate cause of action. Thirdly, in terms of choice of law, English law is exclusively applied to publications occurring in England. Finally, the English domestic law of libel focuses predominantly on vindicating the claimant’s right to reputation (whether a public or private figure) rather than protecting the defendant’s right to freedom of expression and so is generous to plaintiffs by international and certainly US standards.

Keywords: private international law, cross-border, libel cases

JEL Classification: K00, K19, K33

Suggested Citation

Garnett, Richard and Richardson, Megan, Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases (November 15, 2010). Journal of Private International Law, Vol. 5, No. 3, pp. 471-490, 2009; U of Melbourne Legal Studies Research Paper No. 504. Available at SSRN: https://ssrn.com/abstract=1709102

Richard Garnett (Contact Author)

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Megan Richardson

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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