What Is Libel Tourism?
Libel is a written defamatory statement. In the United States, the laws of defamation generally disfavor plaintiffs. Courts and legislatures frequently invoke First Amendment free speech in making a defamation claim more challenging for a plaintiff to succeed. For example, it falls on the plaintiff to prove that the defendant's defamatory statement is false, and, in the event that the plaintiff is a public figure (or limited public figure), to prove that the defendant made the defamatory statement in a reckless or intentional manner. In addition, many states have anti-SLAPP laws that give judges discretion to dismiss a defamation claim before the facts ever reach a jury.
However, in other countries, and especially in the UK, the laws of defamation can be considerably more plaintiff-friendly. In the UK, for example, the burden falls on the defendant to prove that the defamatory statement is true. Libel tourism takes advantage of the differences in defamation laws between various countries.
How Libel Tourism Works
In the past, a plaintiff would therefore bring a claim for defamation in the UK, where defamation law is plaintiff-friendly, and would then have the judgment of the court there enforced by a court in the United States. Celebrities and other public figures commonly made use of libel tourism in order to succeed in defamation cases that would otherwise fail in the United States.
Libel tourism is an effective tool for fighting reputationally-damaging assertions, when those assertions might not qualify as defamation or libel under United States law. For example, in 2008, American author and academic Rachel Ehrenfeld was sued for libel by Saudi billionaire, Shiekh Khalid bin Mahfouz. Dr. Ehrenfeld asserted that the Shiekh was involved in financing terrorists.
She had published her book (which included the purported libelous statements) in the United States and some had also been purchased through websites registered in the United Kingdom. The Shiekh, taking advantage of the UK's much less strict defamation laws, successfully sued Dr. Ehrenfeld and obtained a judgment from a UK high court requiring that existing books be destroyed. It's highly unlikely that a court in the United States would have found for the Shiekh, given the facts.
The SPEECH Act and Libel Tourism Today
In 2010, libel tourism in the United States was significantly limited with the passage of the SPEECH Act. The SPEECH Act demands that all foreign libel judgments comply with the libel standards in the United States (including the First Amendment), or those judgments will not be enforced. As such, libel tourism has been curbed substantially.
Some states have gone further to remedy the issue of libel tourism. California, Florida, Illinois, and New York have passed Libel Tourism Acts that allow their courts to exercise jurisdiction over libel suits filed against authors and publishing companies operating from their states. As a result, there's a good chance that libel tourists will be forced to prosecute their claims in a state court of law in the United States, eliminating any possibility of advantageous libel tourism.
There may still be some situations in which libel tourism can be useful, however. First, the defendant must not operate out of a state in which a Libel Tourism Act has been passed. Following that, the libel tourist need only overcome the SPEECH Act, and to do so the tourist would have to find another country with defamation laws that satisfy the SPEECH Act requirements.
The courts of the United States have historically been protective over First Amendment free speech rights, and so, while another country may have similar defamation laws, the enforcement of those laws in a foreign court of law may be more favorable to a plaintiff. If the damages claim for defamation is substantial enough, it may still make sense for plaintiffs to engage in libel tourism in this limited fashion.
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