Wednesday, December 1, 2010
Richard Garnett and Megal L. Richardson, both of the University of Melbourne Law School, have published Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases at 5 Journal of Private International Law 471 (2009). Here is the abstract.
The application of private international law rules in cross-border libel cases has long been a controversial issue with little international consensus. The matter has flared with particular intensity recently in a number of English decisions involving US defendant publishers. In such cases English courts have applied domestic jurisdictional and choice of law standards without regard to international instruments such as the European Union Regulation on Jurisdiction and Judgments (Brussels I) or The Regulation on the Law Applicable to Non-Contractual Obligations (Rome II).
What are these standards? First, in terms of jurisdiction, an English court will allow a claimant to serve a non-EU foreign publisher out of the jurisdiction in respect of publications in England based on the fact that the local publications involve damage suffered arising from a tortious act committed in the forum. The existence of a local tort, when accompanied by a local reputation, means that in practice a defendant will rarely, if ever, be able to have proceedings dismissed on the ground that a foreign court is a more appropriate forum. Secondly, each act of publication creates a separate cause of action. Thirdly, in terms of choice of law, English law is exclusively applied to publications occurring in England. Finally, the English domestic law of libel focuses predominantly on vindicating the claimant’s right to reputation (whether a public or private figure) rather than protecting the defendant’s right to freedom of expression and so is generous to plaintiffs by international and certainly US standards.
Download the full text from SSRN at the link.