Splendid Isolation? Australia as a Destination for 'Libel Tourism'

Article excerpt

Abstract

'Libel tourism' has been a source of tension between the United States and the United Kingdom. Ti highlights the difference not only between these countries' defamation laws but also their conflict of laws rules. Legislation to combat the real or perceived problem of 'libel tourism' has been proposed or enacted in the United States and the United Kingdom. This article analyses the phenomenon of 'libel tourism' and seeks to define the concept and to ascertain its incidence. It examines the Ehrenfeld v Bin Mabfouz litigation and the legislative reforms it provoked. It then considers the prospect that Australia will prove an attractive destination for 'libel tourism'.

I Introduction

The phenomenon of 'libel tourism', or 'libel terrorism', as it has been more tendentiously called, has generated considerable attention in the United States and the United Kingdom. The contention that English courts have exercised jurisdiction over defamation proceedings which have a marginal connection with the United Kingdom and which impinge upon United States citizens' constitutionally protected right to freedom of expression under the First Amendment has elicited a strong response from legislators, judges and academics in the United States and the United Kingdom. The culmination of the American legislative response was the passage of the SPEECH Aa in 2010, (1) although a number of state legislatures enacted specific provisions dealing with foreign defamation judgments. The issue of 'libel tourism' has also figured prominently in the recent libel law reform process in the United Kingdom, although English courts arguably had already begun to take a more rigorous approach to the exercise of jurisdiction over defamation cases with an international dimension to them.

'Libel tourism' and the American and English responses to it highlight the differences not only between the levels of legal protection afforded to freedom of expression in these countries, but also between their conflict of laws rules. These differences also exist between American and Australian law. Indeed, the tensions are arguably starker, given that Australia has no bill of rights and consequently has not had to reconsider the balance between the right to reputation and freedom of expression in its defamation law, as the United Kingdom has done, following the introduction of the Human Rights Act 1998 (UK). Moreover, Australian courts and legislatures have not attempted to impose more rigorous threshold tests of jurisdiction on prospective 'libel tourists', again unlike the United Kingdom. Therefore, it is instructive to analyse the phenomenon of 'libel tourism' and the United States response to it from an Australian perspective.

This article first explores the concept of 'libel tourism' and its incidence in the United Kingdom and Australia. What is meant by 'libel tourism' and how frequent it is are contentious issues. The article identifies the important differences between American and Anglo-Australian defamation law and conflict of laws, which give rise to the problem of 'libel tourism'. It examines the case which was the impetus for the American legislative response to 'libel tourism', Ehrenfeld v Bin Mahfouz. It then traces those legislative developments, as well as the attempts by the United Kingdom to address concerns about 'libel tourism'. Finally, the article considers the prospects of 'libel tourism' occurring in Australia, using the recent case of Evony LLC v Everiss as a case study. It suggests that, while the relative geographical isolation of Australia might be a disincentive to 'libel tourism', such a disincentive might be overcome, given the globalised and networked nature of communication technologies and the advantages offered to plaintiffs by Australia's defamation laws and its conflict of laws rules.

II 'Libel Tourism': Its Definition and Incidence

A significant difficulty with analysing the phenomenon of 'libel tourism' is the definition of the concept itself. …