The University of New Hampshire Law Review
London, Libel Capital No Longer? The Draft Defamation Act 2011 and the Future of Libel Tourism
[Excerpt] “In the past decade, London emerged as the forum of choice for “libel tourists”—strategic, often foreign, plaintiffs who bring defamation actions in a jurisdiction with plaintiff-friendly libel laws, even if they and the defamatory material at issue lack a substantial connection with that jurisdiction. England’s defamation laws and procedures make it significantly easier for claimants to commence and prevail in libel actions than do the laws and procedures of many other countries, particularly the United States. As a result, English courts have entertained several high-profile defamation cases involving foreign parties who have only tenuous connections to England, such as disputes between a Saudi billionaire and a U.S. journalist; a Russian businessman and a U.S. magazine; and a French director and a U.S. publisher. Cases like these have cemented London’s reputation as the “libel capital of the world.”
The establishment of that notorious title, reflecting the notion that England does not value free expression as highly as other countries, has helped ignite a movement to reform English libel laws and procedures. On March 15, 2011, the U.K. Ministry of Justice unveiled a draft bill entitled the Draft Defamation Act 2011, proposing a substantial overhaul of English libel laws as well as the procedures applied in libel actions. The Draft Act aims to combat the perception that England is a refuge for libel tourism by, among other reforms, requiring English courts to determine whether England is the most appropriate forum in which the action should be heard before exercising jurisdiction.
The Draft Defamation Act comes less than one year after the enactment of the Securing the Protection of Our Enduring and Established Constitutional Heritage (“SPEECH”) Act of 2010 in the United States. The SPEECH Act prohibits U.S. courts, both state and federal, from recognizing or enforcing defamation judgments rendered by a foreign court unless that court applied a standard that was as protective of free speech as a U.S. court would have applied. In the context of libel tourism, this means that a libel tourist cannot force a U.S. author or publisher to comply with a foreign judgment unless a U.S. court finds that the judgment comported with First Amendment principles.
This Note analyzes the efficacy of the Draft Defamation Act and its impact on the enforcement of English defamation judgments in U.S. courts. Specifically, it proposes that the Draft Act’s procedural clauses will effectively reduce the prevalence of libel tourism in England. Moreover, this Note argues that, in light of the Draft Act’s reforms as well as longstanding principles of international comity, U.S. courts should not narrowly construe the SPEECH Act to require exact congruence between U.S. and English defamation laws. Finally, this Note presents evidence suggesting that England’s problem of libel tourism could be supplanted by the new phenomenon of privacy tourism. Thus, in addition to modifying and enacting the Draft Defamation Act, English policymakers should consider reviewing and possibly reforming English privacy laws.
This Note proceeds in four sections. Section II provides a background to issues related to libel tourism, including its prevalence in England and the U.S. response to it. Section III reviews the Draft Defamation Act’s procedural clauses related to libel tourism. Section IV analyzes the Draft Act’s potential to eradicate libel tourism and its effect on U.S. courts’ construction and application of the SPEECH Act. Section IV also proposes modifications to the Draft Act, including the adoption of a defamation-specific choice-of-law rule. Finally, Section V explores the interplay between English defamation and privacy laws, considering whether the Draft Act’s aim to eliminate libel tourism inadvertently opens the door to the development of privacy tourism.
Thomas Sanchez, London, Libel Capital No Longer? The Draft Defamation Act 2011 and the Future of Libel Tourism, 9 U.N.H. L. REV. 469 (2011), available at http://scholars.unh.edu/unh_lr/vol9/iss3/7
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