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International Publications and Protection of Reputation: A Margin of Appreciation But Not Subservience?

36 Pages Posted: 21 May 2011  

Barbara McDonald

The University of Sydney Law School

Abstract

In the context of the increasingly global reach of media and communications, this article explores the modern phenomenon of libel proceedings in foreign courts by citizens of other countries, the approach of courts and legislators in dealing with so-called "libel tourists", and the international policies and principles which determine whether a court will accept jurisdiction over a libel action or enforce a foreign libel judgment. It argues that, in this context, not all foreign claimants are to be dismissed as opportunistic "tourists" and also that, sometimes, regardless of enforceability, there is a value to a claimant in a respected foreign court’s ruling on the libel. Defamation law is strongly reflective of attitudes and national values. While core constitutional law values drive U.S. courts to depart dramatically from the usual assumptions about enforcement of the judgments of civilized nations, the article argues that courts must recognise that universal values of freedom of speech and protection of reputation may play out differently in countries of different social and historical backgrounds. The concept of a margin of appreciation, a concept borrowed from modern European jurisprudence, may assist courts to respect the libel laws of other countries where they do not conform exactly to those of the forum.

Keywords: Defamation, libel, foreign judgments, freedom of speech, libel tourists, tort, publication, private international law, enforcement of foreign judgments

JEL Classification: K10, K13, K30, K33

Suggested Citation

McDonald, Barbara, International Publications and Protection of Reputation: A Margin of Appreciation But Not Subservience?. Alabama Law Review, Vol. 62, No. 3, pp. 477-511, 2011; Sydney Law School Research Paper No. 11/29. Available at SSRN: https://ssrn.com/abstract=1846224

Barbara McDonald (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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