The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).
The Court unanimously denied the appeal. (more…)
Archive for the ‘United States’ Category
SCOTUS rejects extraterritorial application of ATS in Kiobel v. Royal Dutch Petroleum Co.
April 17, 2013Matthew Lafferman, “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”
March 13, 2013
Matthew Lafferman (JD Candidate, George Mason University – School of Law) has published “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”, Santa Clara Computer and High Technology Law Journal, Vol. 29, No. 1, 2012. Here’s the abstract:
In Gertz v. Welch, the Supreme Court expanded First Amendment protections to defamation law by requiring a plaintiff who qualified as a public figure to prove a higher burden of proof to recover for damages under a defamation suit. The Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the channels of effective communication.” Applying this doctrine to online media poses challenges, specifically when applied to social media platforms. Many scholars have recognized that social media users have equal access to the same basic media features, rendering the Gertz Court’s access-to the-media rationale inapplicable when applied to social media. A 216% rise in defamation suits against Internet users in the last three years alone, due to the recent discovery that most homeowner’s insurance policies cover libel liability, signals an almost inevitable rise in defamation suits that will eventually force courts to face the challenge of applying the Gertz public figure doctrine to social media.
This Comment offers an approach that reconciles the problems of applying the public figure doctrine to social media. This Comment argues that courts should require defendants to overcome certain initial presumptions by clear and convincing evidence before designating a social media user an involuntary public figure or a general public figure. Moreover, when recommending an approach for courts to identify voluntary activity on a social network for limited-purpose public figures, courts should avoid defining mere access to social media as voluntary activity and instead conclude such access is an extension of an individual’s private life. This approach would allow courts to apply much of the currently existing public figure doctrine to social media and help courts avoid the negative legal and policy consequences of abolishing the doctrine altogether.
A pdf copy of the paper is available for download at SSRN here.
Riccardo Pavoni, “The American Anomaly: On the ICJ’s Misuse of United States Practice in Jurisdictional Immunities of the State”
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Riccardo Pavoni (University of Siena – Faculty of Law) has posted “The American Anomaly: On the ICJ’s Misuse of United States Practice in Jurisdictional Immunities of the State”, Italian Yearbook of International Law, Volume XXI, Martinus Nijhoff 2012. The abstract reads:
The ICJ’s treatment of US practice translates into one of the most controversial aspects of the Jurisdictional Immunities judgment. The Court’s approach was elusive and patchy. Certain key decisions by US courts in the field of sovereign immunity were patently neglected, while others were addressed in a misleading manner. This article examines the Court’s citations and omissions relating to US practice, with respect to both the jus cogens and tort exception arguments advanced by Italy in defense of its Ferrini jurisprudence denying immunity when the defendant State is accused of egregious breaches of human rights. The article also enquires into the possible reasons at the root of the Court’s inadequate assessment of US practice. It takes the view that the Court’s dismissive attitude vis-à-vis the anomalous American experience casts doubt over the judgment’s reliability and persuasiveness as an accurate reflection of the contemporary law of State immunity.
A copy of the paper may be downloaded via SSRN here.
Your American Subpoena Ain’t No Good ‘Round Here
October 2, 2012American law firms and lawyers often serve subpoenas on Canadians as non-parties to the U.S. civil litigation. When they do so, they presume that the subpoena is valid and enforceable in Canada.
Well, it’s not. (more…)
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.
Antonin I. Pribetic
