'The Problem of Trans-National Libel' by Lili Levi in LX(2)
American Journal of Comparative Law (2012)
comments that
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 2010 the United States passed the SPEECH Act which prohibits recognition and enforcement of libel judgments from juris dictions 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.
