Mr. Speaker, I move to suspend the rules and concur in the Senate amendment to the bill (H.R. 2765) to amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments and certain foreign…
Mr. Speaker, I move to suspend the rules and concur in the Senate amendment to the bill (H.R. 2765) to amend title 28, United States Code, to prohibit recognition and enforcement of foreign defamation judgments and certain foreign judgments against the providers of interactive computer services.
I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.
Mr. Speaker, I yield myself such time as I may consume.
Earlier this Congress, I introduced, together with Congressman Darrell Issa, H.R. 2765, to protect Americans' First Amendment rights against the threat posed by libel tourism, a new term in our vocabulary. The House passed that bill by voice vote under suspension of the rules. The 110th Congress had also passed that bill in this House as well.
Last week, the Senate passed, by unanimous consent, an amended version of H.R. 2765, named the Securing the Protection of our Enduring and Established Constitutional Heritage Act, or SPEECH. We consider the Senate version today.
Libel tourism is the name given to the practice of doing an end-run around the First Amendment by suing American authors and publishers for defamation in the courts of certain foreign countries with defamation laws that don't accord the same respect to free speech values as we do. Britain is a nation that particularly is a situs for these actions.
While we generally share a proud common law legal tradition with the United Kingdom, it is also true that the United Kingdom has laws that disfavor speech critical of public officials and public figures, contrary to our own constitutional tradition. As a result, the United Kingdom has become the favorite destination for libel tourists.
British defamation laws lack the constitutionally mandated speech- protective elements of U.S. law. For example, in contrast to U.S. law, British law presumes the defendant is wrong and places the burden on the defendant to prove the truth of her allegedly defamatory statement.
This feature of British law has brought condemnation, not only from American defenders of free speech, but also from the United Nations, and even from some members of the British Parliament.
In addition to Britain's substantive defamation law, features of Britain's procedural law tend to facilitate libel tourism, especially when it comes to the exercise of personal jurisdiction over a defamation defendant.
Under their more expansive standard, British courts have been quick to take jurisdiction over an American defendant whose book, magazine or newspaper, though principally, or even exclusively, distributed in the United
States, reaches even just a handful of readers in the United Kingdom, or whose Internet site, though based in the United States, is visited by someone in the UK.
Particular concerns have been raised that, as a result of British courts' expansive exercise of jurisdiction in libel cases, the Internet has rendered American authors and publishers especially vulnerable to libel suits in Britain.
As one commentator has described the situation: ``In the Internet age, the British libel laws can bite you no matter where you live.''
The Senate amendment to H.R. 2765 builds on the version of my bill that passed the House earlier this Congress, maintaining its core elements. Like the original bill, the Senate language prohibits U.S. courts from recognizing or enforcing foreign defamation judgments that are inconsistent with the First Amendment or do not comport with our due process requirements.
The Senate language also continues to prohibit the enforcement of a foreign defamation judgment against an interactive computer service if the claim of the party opposing enforcement in the judgment is inconsistent with section 230 of the Communications Act of 1934.
The purpose of this provision is to ensure that libel tourists do not attempt to chill speech by suing a third-party interactive computer service, rather than the actual author of the offending statement.
In such circumstances, the service provider would likely take down the allegedly offending material rather than face a lawsuit. Providing immunity removes this unhealthy incentive to take down material under improper pressure.
The Senate language enhances an existing attorneys' fee provision so that a court would now be required, absent exceptional circumstances, to award attorneys' fees to the party resisting enforcement of the foreign judgement if that party prevails. That provision was added in committee this year to put more teeth in the bill.
The purpose of the provision is to dissuade libel tourists from putting American authors and publishers through the burden and expense of defending a meritless enforcement action and to compensate authors and publishers when they are forced to do so.
The most significant change made by the Senate, which I support, is the addition of a declaratory judgment remedy for a U.S.-based author or publisher who is the target of a foreign defamation judgment.
This provision would allow the U.S.-based party against whom a foreign defamation judgment is entered to seek a declaratory judgment in Federal court, finding that the foreign judgment is repugnant to the Constitution or laws of the United States under one of the grounds listed in the bill.
The declaratory judgment remedy provides an added measure of protection for the free speech rights of American authors and publishers.
Last Thursday, The New York Times hailed the passage of this bill by the Senate, where it was sponsored by Senator Leahy, as a great move forward for First Amendment rights that are so important to our American way of life.
I thank Judiciary Committee Chairman John Conyers, Ranking Member Lamar Smith, the members of the Judiciary Committee, and the cosponsors of this bill for their support.
And I greatly thank Senators Patrick Leahy, Jeff Sessions and Arlen Specter for their longstanding and committed leadership on this issue. And I should say particularly, Senator Leahy, such a gentleman, in moving this bill forward.
I urge my colleagues to support this legislation.
[From The New York Times, July 22, 2010]
A Victory for Writing
It is a rare achievement these days for the Senate to pass
anything of real substance by a unanimous vote. But an
important bill that protects Americans from the whims of
foreign libel judgments was passed earlier this week by
unanimous consent. Once it passes the House and is signed
into law, it will provide a safeguard to authors and
publishers threatened with ruinous foreign judgments.
In the United States, a plaintiff alleging libel must prove
that a statement is false and defamatory, and public figures
have to show that a writer acted with actual malice in making
a false statement. But these protections, rooted in the First
Amendment, do not exist in places like Britain, Australia and
Singapore, where the burden is often on the author, once
accused of libel, to show that a statement is true.
To sidestep American protections, subjects of books have
sued publishers and authors in British courts where they have
a better chance of winning. The practice, known as libel
tourism, counts on a system in which American courts will
enforce British fines and penalties.
The bill passed by the Senate on Monday would prohibit
American courts from enforcing foreign defamation judgments
if the judgments are inconsistent with First Amendment
protections. In other words, if a British court finds that an
American author has committed libel but has not conducted the
trial with the same legal standards as an American court, the
judgment against the author would be void in the United
States. Americans who are found overseas to have committed
libel can also sue in federal court to have that judgment
found to be ``repugnant to the Constitution'' or American
law.
These kinds of cases have come up far too often. One of the
best known examples was that of Rachel Ehrenfeld, who wrote a
2003 book called ``Funding Evil: How Terrorism Is Financed--
and How to Stop It,'' that accused a Saudi businessman,
Khalid bin Mahfouz, of providing financial support to Al
Qaeda before the Sept. 11, 2001, attacks. After Mr. Mahfouz
sued for libel in Britain--a charge that Ms. Ehrenfeld
refused to defend--a British judge ordered her to pay K10,000
each to Mr. Mahfouz and his two sons, and more than K100,000
in legal costs, a total equaling about $230,000 at the time.
She refused to pay, and the case led the New York State
Legislature to pass a bill similar to the Speech Act in 2008.
The House has already passed a similar bill and is expected
shortly to support the version approved by the Senate, giving
authors in the rest of the country the same protections that
exist in New York. The next step is for the new British
government to take the hint and follow through on the promise
it made earlier this month to review and overhaul its libel
laws. No one in either country wins if writers cannot express
themselves freely.
I reserve the balance of my time.
Mr. Speaker, I yield myself such time as I may consume.
I just want to reflect on the fact that this bill probably couldn't have gotten as far as it had without the outstanding work of the gentleman from Massachusetts (Mr. Delahunt). The gentleman from Massachusetts has been an invaluable member of the Judiciary Committee for many years, contributed much to First Amendment rights, and participated as the vice chairman of the Commercial and Administrative Law subcommittee this year, an invaluable role that he actively engaged in.
On this bill in particular, he was very instrumental in its passage. I thank him for his service on this particular bill and in general. All the publishers and the authors also should know that the gentleman from Massachusetts was very involved in this bill.
With that, I would like to reserve the balance of my time for the purpose of closing.
Mr. Speaker, it is with great pleasure that this bill comes to a conclusion. We passed this in the 110th Congress, we couldn't get the Senate to agree on the language, and we did it in this Congress. It was a victory for writing, said the New York Times, a rare achievement for the Senate to pass this particular bill by a unanimous vote. It was an important bill that protects Americans from the whims of foreign libel judgments. This bill will safeguard authors and publishers threatened with ruinous foreign judgments. These particular First Amendment rights have been jeopardized in places like Britain, Australia and Singapore where the burden was shifted.
So it is important, as the New York Times suggested in what is an outstanding editorial endorsing and praising the passage of this bill, mentioning Ms. Rachel Ehrenfeld who wrote a 2003 book ``Funding Evil: How Terrorism is Financed--and How to Stop It,'' where she was the object of a libel tourism action by an individual that got a judgment against her which was improper. She has been a very active and important citizen in seeing that this bill was passed along with the publishers over the years.
It's important that we pass this. The New York Times editorial was so complete, it only failed to mention Mr. Delahunt's role in the passage of the bill. I wish it would have. With that, I would ask for the unanimous passage of the bill.
I yield back the balance of my time.