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Sticks and stones: Libel tourism and free speech

Trials & Tribulations
|Written By Antonin I. Pribetic
Sticks and stones: Libel tourism and free speech

“Sticks and stones may break my bones, but words will never hurt me.” — Anonymous (idiom, but probably the words of the first kid ever picked on in a playground)

A recent post on by John Gregory, general counsel in the Policy Division of the Ontario Ministry of the Attorney General, entitled “Privacy and defamation” discusses defamation law reform in Britain and quotes U.K. MP Sir Alan Beith:

“It won’t be possible to reform the law of defamation without ensuring there is some protection for privacy. You can’t wholly separate them.”

Gregory concludes: “So: reform defamation law to increase the availability of public interest information but reform (create) privacy law to decrease the availability of private interest information. They go hand in hand, both logically and as a marketing strategy.”

There is a balancing act between free speech and dissemination of public interest information, on the one hand, and increased privacy concerns, on the other.

In a recent post on his blog, Charon QC asks “Is twitter killing our law? Is blogging killing our law?" and concludes in the negative, but notes: “The chilling effect of a libel letter is known to many. Libel tourism, libel reform and the whole issue of a right to privacy is very much in the frame for debate and law reform. It is widely believed that there [are] at least three superinjunctions out there protecting the commercial interests/private lives of leading footballers granted in recent weeks/months. I don’t know. In fact, none of us are supposed to know. That is the point of a superinjunction.”

Ah, the superinjunction. The “stealth bomber” litigation weapon of U.K. defamation lawyers representing super-rich corporations, privileged politicians, and spoiled celebrities. Frankly, publication bans are always suspect in any legal system that touts itself as upholding democratic principles of accountability, transparency, and equal access to justice.

There is no right to public information if that information is untrue and damaging to one’s reputation.

The Fifth Estate in Canada has no legally recognized code of journalistic ethics. In the recent Supreme Court of Canada decision Grant v. Torstar Corp. and its companion case, Quan v. Cusson, while the Supreme Court incorporated the “defence of responsible communication on matters of public interest” (also referred to as the “responsible journalism” defence) into the law of defamation in Canada, the court observed: “A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.” [emphasis added]

Is the problem “libel tourism,” which is essentially “forum shopping” in the defamation law context? Paidraig Reidy of Online Journalism News in a recent post, “A powerful case has been made beyond our shores for libel reform in the UK,” citing a speech by retired House of Lords justice Lord Hoffmann in February of this year, where the learned justice “. . . launched a blistering attack on the Campaign for Libel Reform.”

Hoffman pointed out that American Rachel Ehrenfeld, who had been sued by Saudi/Irish citizen Sheikh Khalid bin Mahfouz in London, England over a book that was never intended to be published in the U.K., was an acquaintance of leading American neo-conservative Richard Perle. Ergo, the clamour for reform was an American, neo-conservative proposition. If you liked reform, you probably loved George Bush.

It was an odd attack to make, all the more curious for the fact that Hoffmann characterized the campaign as being built on the case of Don King v. Lennox Lewis, a case not mentioned once in the debate before that point.

It is not surprising that “libel tourism” has gained so much traction among American and U.K. legislators, not to mention traditional media, online journalists and political bloggers, but is “libel tourism” really a problem? Not so, according to which reports, “Libel tourism is a very rare thing in UK courts, finds study.”

“The US has since passed a federal law to prevent libel judgments from UK courts being enforced in the US. The UK Government has also pledged to reform libel laws to restrict forum shopping. But Sweet & Maxwell’s research suggests that the concern outweighs the practice.

“The research also found that the total number of reported defamation cases in 2009-10 had risen by six per cent from 78 in 2008-09. This was led by an increase in claims from celebrities and sports stars, it said, which nearly trebled in that period, from 11 to 30.

“According to Sweet & Maxwell, that rise may be the result of a closer working relationship between agents and managers of celebrities and law firms that specialise in bringing defamation claims against the media.”

I wager that Sweet & Maxwell’s research study will not be widely reported.

So then, are we heading towards a jurisdictional Cold War between the United Kingdom and the United States over free speech and online reputation? Will Canada be caught between the Scylla of U.S. First Amendment protectionism and the Charybdis of British libel liberalism?

The U.S. approach to protecting free speech, enshrined in the First Amendment, is considered by many academics, political writers, and libertarians as the Bretton Woods standard for protection of individual freedom of expression. This is the cornerstone of representative democracy, or so one is led to believe. Yet, even in the U.S., there are limits to what one can say about another in the court of public opinion. Many commentators and pundits overlook the oft-quoted metaphor of Oliver Wendell Holmes, Jr. in 1919’s Schenck v. United States: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

The operative word is “falsely shouting fire in a theater and causing a panic.”

Truth is an absolute defence to a defamation claim. Yet, absolutes are as rare in nature as they are in law or philosophy: “It will never be possible by pure reason to arrive at some absolute truth,” according to Werner Heisenberg in Physics and Philosophy.

What is beyond the grasp of my limited understanding is the level of conceit and deceit in those who think that passing a law shielding U.S. citizens from “libel tourism” or “forum shopping” in foreign jurisdictions will stem the tide of Internet defamation lawsuits. The much-lauded Securing the Protection of our Enduring and Established Constitutional Heritage Act (s. 3518) is an odd parochial response to attempting to protect First Amendment rights. What many do not point out is that the SPEECH Act is not a panacea for blocking enforcement of subjectively perceived frivolous defamation judgments.

Take note of the summary of the SPEECH Act that President Barack Obama recently signed into law:

“Securing the Protection of our Enduring and Established Constitutional Heritage Act or SPEECH Act — Prohibits a domestic court from recognizing or enforcing a foreign judgment for defamation unless the domestic court determines that: (1) the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the First Amendment to the U.S. Constitution and by the constitution and law of the state in which the domestic court is located; or (2) even if the defamation law applied in the foreign court’s adjudication did not provide this much protection for freedom of speech and press, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the First Amendment to the U.S. Constitution and the constitution and law of the state in which the domestic court is located. . . .”

The act also reinforces the immunity established under the Communications Act of 1934 and Telecommunications Act of 1996, immunizing owners and operators of web sites, blogs, and chat rooms from liability for defamation, subject to a few narrow exceptions.

Note that the legal test is twofold. The first branch of the SPEECH Act test requires a U.S. court to undertake a comparative law analysis: no other foreign common law jurisdiction, including the U.K., Canada, or Australia, will pass muster. It is the second branch that presents a more rational basis for the blocking legislation. If the foreign defamation judgment involved allegations proven to have harmed the reputation of the plaintiff based upon U.S. First Amendment standards, then it will still be enforceable against the U.S. defendant.

The SPEECH Act is anathema to comity. Then again, comity is strangely of little moment, even in an era of globalization and Internet virality. Just ask the Ontario Court of Appeal which in the 2005 Internet defamation case Bangoura v. Washington Post declined assuming jurisdiction over the U.S.-based media defendants, and held: “The motion judge’s conclusion does not take into account that the rule in New York Times v. Sullivan is rooted in the guarantees of freedom of speech and of the press under the First Amendment of the U.S. Constitution. In any event, the reality is that American courts will not enforce foreign libel judgments that are based on the application of legal principles that are contrary to the actual malice rule. Although the Supreme Court of Canada has rejected the rule for perfectly valid reasons, it is, in my view, not correct to say that the American courts’ unwillingness to enforce a Canadian libel judgment is ‘an unfortunate expression of lack of comity.’ Canada and the U.S. have simply taken different approaches to a complex area of the law, based upon different policy considerations related to freedom of speech and the protection of individual reputations.

“. . . The public policy defence turns on whether the foreign law is contrary to our view of basic morality. As stated in Castel and Walker, supra, at p. 14-28: . . . the traditional public policy defence appears to be directed at the concept of repugnant laws and not repugnant facts.”

Given the centrality of freedom of speech to the American Constitution, it could be argued that an American court’s refusal to recognize a Canadian judgment based on principles divergent from New York Times v. Sullivan would fall into the category of repugnant law rather than repugnant fact.”

Still, the Ontario Court of Appeal did assume jurisdiction just a few weeks ago in Black v. Breeden despite the fact that Lord Black of Crossharbour had not lived in Canada for a number of years, having renounced his Canadian citizenship in order to be granted a peerage. The conflicting results in Bangoura and Black can only be reconciled, if at all, by noting the underlying rationale for defamation actions. In Bangoura, the court refused to take jurisdiction over the defendant, an American newspaper, at the instance of a plaintiff who at the time of the alleged defamation was neither a Canadian citizen nor resident. In Black, the court concluded that while Conrad Black may no longer be a resident of Canada, he established his reputation here and that is where he seeks to vindicate it.

This is why the SPEECH Act is ill-conceived. It fails to focus on the real issue in Internet defamation claims: jurisdiction. Either a foreign court has personal or subject matter jurisdiction over a U.S. defendant or it does not. American judges, like their common law counterparts, are presumably well versed in conflict of laws or private international law principles. In any event, just because the SPEECH Act raises a shield against foreign defamation judgments that do not meet American constitutional or defamation law standards, does not mean that the U.S. defendants necessarily can safely ignore such defamation actions. After all, chances are that more than a few Americans have assets outside of the geographical bounds of the 50 states.

Are we asking the right questions? Is the issue what right do we value most? Our right to speak freely or our right to protect our reputation? Alternatively, is something more fundamental at stake: the end of privacy?

Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog