Archive for the ‘SPEECH Act’ Category

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.




Canadian Defamation Judgment Declared Unenforceable under the U.S. SPEECH Act

July 13, 2011

While only a stipulated (i.e. consent) judgment with no precedential value, the recent decision of the U.S. District Court (Fla. N.D. Tallahassee Div.) In et al. v. Mina Mar Group Inc. (Case No.: 4:11cv9-RH/WS) appears to be the first declaratory judgment issued under the SPEECH Act. (my previous post at Inforrm’s Blog is available here.

Mina Mar’s Affirmative Defenses (subsequently withdrawn) were as follows:

1. Plaintiffs are estopped from recovering by virtue of a negotiated resolution of the Canadian case.
2. Plaintiff has waived any right to such a declaration by virtue of a negotiated
resolution of the Canadian case.
3. The defense of accord and satisfaction applies to the claims of the Plaintiffs, given the negotiated resolution of the Canadian case.
4. The Canadian case has been settled by a negotiated resolution.”

The stipulated judgment reads in part:

“19. The parties acknowledge, and the Court finds, that Canadian law does not provide as much protection of speech as the First Amendment, federal law, and Florida law.”

“20. Nor does Canadian law provide the protections for freedom of on-line speech provided by the Communications Decency Act, 47 U.S.C. § 230.”

“22. The Court hereby declares that the Foreign Defamation Judgment in the matter of Mina Mar Group, Inc., et al. v., et al., Court File No. CV-08-364413-0000, Ontario Superior Court of Justice, is not enforceable in the United States pursuant to the SPEECH Act, 28 U.S.C. §§ 4101-4105, and any orders entered in connection therewith are invalid and unenforceable in the United States.”

A pdf copy of the stipulated judgment is available here.

The contempt motion brought by Mina Mar against for breach of Mr. Justice Perell’s order has been converted to a trial and is scheduled for November 7, 2011. A copy of the contempt motion is available here.

H/T Hector MacMahan

UPDATED: CTB v. Twitter, Inc. and Unknown Persons: Trying to Flog a Dead Horse

May 22, 2011

Briefly, the underlying case is CTB v. News Group Newspapers Ltd. et al. which is an English High Court Queen’s Bench Division judgment arising from litigation between an “anonymous” English premier league footballer, “CTB” and defendants News Group Newspapers Limited and Imogen Thomas. On 14 April 2011, Mr Justice Eady granted first a temporary injunction prohibiting the naming of the footballer in the media, which injunction was extended on April 21st, 2011. The injunction initially sought to prevent details of an extra-marital relationship between the married footballer CTB and Ms Thomas – from being published in the London newspaper, The Sun and was based on Article 8 of the European Convention on Human Rights, which guarantees an individual’s right to privacy. CTB v News Group Newspapers Ltd et al. [2011] EWHC 1232 (QB) (16 May 2011) is analysed in depth by Edward Craven at Inforrm’s Blog: Case Law: CTB v News Group Newspapers: privacy law and the judiciary.

See also,

Since then, Twitter is abuzz about the news that CTB has commenced another action in the English court, this time against Twitter, Inc.  to disclose the identities of some of its anonymous account holders alleged to have breached Justice Eady’s injunctive order by disclosing the claimant’s identity:. The case is styled: CTB -v- Twitter, Inc. and Persons Unknown (Case No. HQ11XO1814. Read Charles Russell’s CRITique blog for a great summary here.

Unlike some others, I respect the Rule of Law and choose not to identify “CTB” in breach of Justice Eady’s injunctive order, irrespective of whether, in my opinion, any such order is unenforceable contra mundum. (more…)

Missouri Appeals Court reverses registration of Ontario libel judgment

April 19, 2011

The River Front Times reports today on a Missouri Appeals Court judgment, reversing a lower court decision registering an Ontario libel judgment. A pdf link to the Missouri Appeals Court decision is available here.

The parties are first cousins.  The plaintiff/respondent, Ms. Sanchez-Pontigon and her husband, both Ontario residents, sued the defendant/appellant, Ms. Manalansand-Lord and her American publisher for libel arising from statements made in Ms. Manalansand-Lord’s self-published autobiography entitled, “From Fieldhand to Ph.D., Ms. Asia International Motivation for Success and Happiness”, the first chapter of which was posted on the Internet.

No one had appeared on behalf of the Defendants at trial, despite having been given notice by the trial coordinator through email and fax and by plaintiffs’ counsel via email.   In reported reasons: Sanchez-Pontigon v. Manalansand-Lord 2009 CanLII 28216 (ON S.C.), [2009] O.J. No. 2293 (S.C.J.), Quinlan, J. of the Ontario Superior Court of Justice awarded Sanchez-Pontigon $25,000 in general damages and $12,500 as aggravated damages for defamation relating to accusations that the plaintiff was involved in criminal activity, including kidnapping and fraud. The Ontario court also awarded $13,716 in costs.

According to the  Missouri Court of Appeals:

“This “judgment” was filed in St. Charles County, Missouri – Ms. Lord was given notice – and after hearing the Circuit Court granted the registration, from which a garnishment issued.”

Note the quotation marks around the word “judgment”.

Relying on the recently enacted SPEECH Act (see my recent post: UK Libel Reform and the US SPEECH Act: A View from Canada),  the Missouri Appeals Court reversed, and the underlying registration was set aside and the garnishment quashed. The Missouri Appeals Court held that the Circuit Court failed to analyze whether the Ontario judgment met U.S. First Amendment standards of free speech and freedom of the press protection. The Missouri appeals court also refused to give the Ontario judgment “full faith and credit” on the grounds that:

This record does not contain a certified and authenticated copy of the Canadian “judgment” by the Canadian court and thus fails to comply with the full faith and credit clause of the U.S. Constitution. Art. IV § 1, U.S. Constitution. There is simply not enough here to show that this “judgment” is entitled to full faith and credit in a Missouri court. As such, the Circuit Court should not have proceeded to hearing, judgment and execution.

Consequently, the plaintiff was ordered to file a certified and authenticated Canadian judgment in accordance with Missouri procedural law and the Circuit Court’s decision was reversed and remanded for further hearing.

Does this decision portend a retreat from an era of judicial comity into a cross-border “war of the words”? Will Canadian judges take umbrage with their American counterparts refusing to enforce Canadian libel judgments unless they meet American First Amendment standards? Is this another example of American exceptionalism?

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