Archive for the ‘Libel Tourism’ Category

McAlpine v. Bercow and a New Era of ‘Twitter Chill’

May 24, 2013

The decision of Mr Justice Tugendhat in McAlpine v Bercow [2013] EWHC 1342 (QB) (24 May 2013) [“McAlpine”]  is a stern admonition to Twitter users about the perils of practising comedy without a license.

Seriously, in my view, the UK court’s  judgment will have a chilling effect on free speech on Twitter and will likely devolve into an era of social media self-censorship for Twitter users, particularly in the UK. A form of libel chill, or, perhaps “Twitter Chill”.

It also highlights the legal chasm that exists between the American and UK judicial approaches to balancing freedom of expression and protecting reputation. The decision also raises the spectre of a “popularity metric” to determine whether the alleged maker or republisher of the defamatory tweet has gazillions of followers or is just some shlub with 4 followers, three of which are porn bots. (more…)

Laura E. Little, “Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States”

December 19, 2012

Laura E. Little (Temple University – James E. Beasley School of Law) has published “Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States”, European Yearbook of Private International Law, Vol. 14, 2012. The abstract reads:

This article reviews current developments in U.S. conflict of laws doctrine pertaining to transnational internet defamation cases, including personal jurisdiction, choice of law, and recognition of judgments. To resolve personal jurisdiction and choice of law issues in internet defamation cases, U.S. courts have adapted rules from the non-internet context with relative ease. Reported cases tend to concern domestic internet disputes between U.S. entities, with few plaintiffs attracted to U.S. courts for the purpose of litigating cross-border defamation claims. Although the U.S. serves as a magnet jurisdiction for many types of litigation, two liability-defeating laws render the country inhospitable to defamation claims: (1) the U.S. Constitution’s First Amendment speech protections and (2) a statute affording immunity to internet “providers or users” for information “provided by another content provider.” Perhaps because of these provisions litigants are largely inspired to go elsewhere. The resulting libel tourism has prompted important U.S. developments pertaining to enforcement and recognition of foreign defamation judgments. Thus, for conflict of laws matters pertaining to internet defamation, it is judgments law that reflects the greatest activity and most profound change.

After reviewing personal jurisdiction and choice of law trends, this article describes legal developments pertaining to internet defamation judgments. The article critiques lawmakers’ adherence to First Amendment exceptionalism in regulating internet defamation judgments and identifies flaws reflected in state libel tourism statutes and the federal libel tourism statute, the SPEECH act of 2010.

Download the article via SSRN here.

Lili Levi, “The Problem of Trans-National Libel”

September 28, 2012

Lili Levi (University of Miami – School of Law) has published “The Problem of Trans-National Libel”, American Journal of Comparative Law, Vol. LX, No. 2, Spring 2012/ University of Miami Legal Studies Research Paper No. 2012-25. Here’s the abstract:

Forum shopping in trans-national libel cases “libel tourism”­ has a chilling effect on journalism) academic scholarship) and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legisla­tively. In 2070) the United States passed the SPEECH Act) which prohibits recognition and enforcement of libel judgments from juris­dictions applying law less speech-protective than the First Amendment. In Britain) consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which the SPEECH Act and the Draft Defama­tion Bill will accomplish their stated aims. The SPEECH Act provides little protection for hard-hitting investigative and accountability jour­nalism by professional news organizations with global assets. The proposed British bill has important substantive limits. Moreover) even if Parliament approves reform legislation discouraging libel tourism) such actions may shift to other claimant-friendly jurisdictions. Global harmonization of libel law is neither realistic nor desirable. Instead this Article proposes a two-fold approach. On the legal front, it supports the liberalizations of Britain’s proposed libel reform legislation and calls for foreign courts) when assessing the significance of contacts to the forum in cases affecting the United States) to consider seriously the importance of extensive First Amendment protections for political speech to the American concept of democracy. In addition) the Article calls for voluntary initiatives such as: 1) new approaches to help defend trans-national defamation claims when they are brought; and 2) measures to reduce the number of trans-national libel cases by improving the way in which the press does its job. The defense measures explored include the development of community-funded (rather than media-supported) libel defense funds; the formation of pro bono libel review consortia; and alternative approaches to increasing the availability of libel insurance. The recommended press-improvement measures include expanded access to documents, as well as the enhancement of accountability measures such as best-practices education, journalistic self-criticism, and updated codes of conduct.

A copy of the article is available for download via SSRN here.

 

 

 

Laura E. Little on “Internet Choice of Law Governance”

June 11, 2012

Laura E. Little (Temple University – James E. Beasley School of Law) has posted  “Internet Choice of Law Governance”, China Private International Law Forum, 2012/Temple University Legal Studies Research Paper Series No. 2012-20.  The abstract reads:

As society and legal institutions have become more accustomed to internet communications and transactions, some legal thinkers urge that existing approaches to governance developed outside the internet context are well suited for resolving internet choice of law issues. In this essay, Professor Little argues against this position, observing that internet disputes continue to pose unique choice of law problems and to call for special focus on developing appropriate governance rules. Professor Little finds evidence of this need for special focus in several phenomena, including: (1) the continuing tendency of courts to pursue unilateral decision-making despite multi-jurisdictional interests or global effects of internet disputes; and (2) the legal and cultural clashes that arise in disputes implicating freedom of expression. The internet plays a crucial role in developing new cultural and creative forms, such as fan fiction, mashups, scanlations, and various forms of humor. This raises the stakes of identifying appropriate regulatory forms for internet communication. Special study of internet choice of law problems has the potential to provide the United States with insight into other countries’ methods of crediting human dignity in regulating hate speech and defamation as well as to create greater understanding among nations.

Download a pdf copy of the paper via SSRN here.

The Supreme Court of Canada Conflict of Laws Trilogy: Part II

April 23, 2012

This is the second of a two-part series of posts on the recent Canadian conflict of laws trilogy in Club Resorts Ltd. v. Van Breda, 2012 SCC  17 (“Van Breda”); Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18 (“Banro”) and Breeden v. Black, 2012 SCC 19. (“Black”).

In Part II,  I discuss the implications of the Banro and Black decisions from the perspective of internet defamation, choice of law and forum shopping/libel tourism. (more…)


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