British Libel Case Comes to the U.S
Hernandez, Debra Gersh, Editor & Publisher
A BRITISH LIBEL case has found its way to the United States, and some of the nation's largest media companies have weighed in against enforcing the judgment here. In their amici curiae (friends of the court) brief, the U.S. media companies and associations warned that "the danger that enforcement would pose to the U.S. press cannot be overstated."
Those signing on to the brief include the New York Times Co.; the Associated Press; the Washington Post; Dow Jones & Co.; News America Publishing Inc.; Advance Publications Inc.; Hearst Corp.; Times Mirror Co.; Cable News Network Inc.; American Broadcasting Co. Inc.; National Broadcasting Co. Inc.; Copley Press Inc.; Magazine Publishers of America Inc.; Association of American Publishers Inc.; the Society of Professional journalists; Article 19-The International Centre Against Censorship; and Interights -- The International Centre for the Legal Protection of Human Rights. The case began in 1984, when the London Daily Telegraph published an op-ed article by Vladimir Telegraph, a Russian emigre who had worked for the BBC's Russian Service. The article, in part, was about the service and the ethnic origins of its Russian broadcasters.
In response, Vladimir Matusevitch, also a Russian emigre, who was working for Radio Free Europe/Radio Liberty, wrote a letter to the editor, which was published, accusing Telnikoff of being a racist, among other things.
Telnikoff wrote a rebuttal, which the newspaper also published, and then sued Matusevitch for libel.
In 1992, Telnikoff received a judgment of 240,000 pounds from a British jury that agreed with his claim.
Matusevitch, who was by then living in Germany, did not pay.
After the trial, Matusevitch -- who was born in the U.S., brought to the Soviet Union as a child by his parents, and later emigrated to Europe -- was transferred by his job and moved to Maryland.
In 1993, Telnikoff filed in Maryland state court for judgment of $370,800 from the U.K. case that case was dismissed, by stipulation of both sides.
At the same time, Matusevitch filed a federal civil rights action, which ended up in District Court in Washington, D.C.
The District Court in D.C. granted summary judgment to Matusevitch, ruling that recognition and enforcement o the British judgment would violate the First Amendment.
The dismissal was appealed to the U.S. Court of Appeals for the District of Columbia Circuit. It sent the participants back to Maryland, in order to decide pending issues of state law before the federal court makes it a ruling.
Matusevitch's lawyer, Amon D. Siegel of Davis Polk & Wardwell, said the appeals ruling was "not unexpected."
Siegel explained that his client made two concurrent claims: One was that enforcement of the judgment violated the First Amendment; and the other wa that it could not be enforced because under Maryland law, its courts do not have to recognize foreign judgments found to be "repugnant" to state law.
"They're not dismissing the case. It's like asking for advice," he said of the appeals ruling.
Although both sides are slated to present further arguments before the Maryland court, their core positions on the issue were well spelled out in their briefs to the federal appellate court.
In his federal appeals brief, Telnikoff pointed out that the case does not involve the American media, nor does it make any attempt to curtail or regulate speech in the United States.
"The policies of the First Amendment should limit enforceability of a foreign judgment or the applicability of foreign libel laws only where enforcement of foreign law would chill freedom of expression in this country," Telnikoff's legal brief asserted. "Matusevitch's defamatory publication had no actual or potential impact upon speech in the United States."
The brief, prepared by Washington attorney Forrest A. Hainline III, further argued that, "No overriding interest protecting speech in this country operates to override comity and prevent Telnikoff from registering and enforcing his parochial British judgment for a libel published by a British resident in a London newspaper."
Comity, as defined in the law, essentially is a state or nation's recognition within its boundaries of another's judicial actions.
Telnikoff's brief warned that the "United States should not become the Libya of reputation terrorists, providing a safe haven for those who have offended the laws and civility of another country, particularly another free and democratic country."
Matusevitch, however, maintained in his brief that, "In the United States, the lawsuit would never have gotten to a jury."
Matusevitch's brief to the appeals court pointed out that the "English common law of defamation ... is flatly at odds with the First Amendment."
As the brief explained, "Under English law, statements are presumed to be fact, unless and until a defendant proves them 'comment' -- and in the determination of fact or comment an allegedly libelous critique cannot be evaluated by reference to the work that it criticizes .... Under English law, moreover, defamatory statements are presumed false, unless and until a defendant proves them true. The defendant also risks substantially aggravated damages if he pleads truth, but fails to prove it ...."
Noting that Matusevitch's statements were in the form of a letter to the editor and were published in a forum where "people expect to read criticism insightful as well as misguided," Matusevitch argued that the comments were not statement of fact but opinion.
Telnikoff countered, however, that Matusevitch gave no reason why the First Amendment should be applied in a case that has no effect on speech in the United States, and he maintained that Matusevitch was guilty of defamation, because in the letter to the editor, he falsely attributed statements to Telnikoff with no factual support.
In their brief, the media noted that, "What, at first blush, may seem little more than a long-running spat between two Soviet emigres, amici fear may come to mean much more ....
"There is a disturbing trend among libel plaintiffs to sue outside the U.S. -- not surprisingly, Britain is most often the forum of choice -- in order to circumvent the various requirements imposed on plaintiffs by the First Amendment," they added, noting that "London is already the haven for fugitives from the First Amendment."
If Telnikoff prevails and is able to collect his judgment in the U.S., the media brief warned that "a signal will be sent to prospective libel plaintiffs everywhere: sue in England in order to circumvent the constitutional requirements that you prove verifiability, falsity and fault, recover a judgment on strict liability theory, and then come to the United States to enforce a judgment that you could never have obtained here."
Further, with the increasingly global reach of news, particularly via the Internet, U.S. media would be forced to "self-censor, avoiding controversial letters to the editor and other speech, which, although fully protected by the First Amendment, might nonetheless subject them to domestic enforcement of foreign judgments that do not comport with First Amendment principles."
In addition, the amici brief stated, "If this case involved something less than core political speech commenting on a matter of obvious public concern or if Matusevitch's criticisms, in context, did not so plainly constitute unverifiable opinion and hyperbole or if the judgment was at least based on some minimal showing by Telnikoff of fault or falsity, then deference to a foreign judgment based on English law might present a closer question.
"But none of these hypothetical facts is present here," the media brief noted. "Instead, the court below was asked to enforce and legitimize a foreign libel judgment that is inherently incompatible with our First Amendment principles..
Washington attorney Laura R. Handman, of Lankenau Kovner & Kurtz, counsel for the amici curiae, said that to her knowledge, a case like this has not been brought before. A previous enforcement case involved a British lawsuit against a U.S.-based publisher who published Britain.
While there is a "knee-jerk tendency to say they're like us," Handman said of the British, in the "First Amendment area we differ very significantly."
"The differences are fundamental ones that go to making our law more protective of the press," Handman explained.
The issue here, she said, is, "Should the U.S. courts be using their powers of enforcement and giving their imprimatur to judgments so clearly offensive and that would never be rendered here?
"The fact is, our courts don't do that," Handman added.
Telnikoff addressed the amici arguments in his reply brief.
"The American press possesses power and wealth," Telnikoff's brief stated. "The amici naturally wish to impose a cornerstone of their wealth (the actual malice standard) wherever possible.
"Whether the [actual malice] rule of New York Times v. Sullivan is more helpful than harmful to democracy is a matter of debate," the brief continued.
"Freedom might better be served if the people had some confidence that stories about public figures and public concern were written under a standard of objective fairness rather than a subjective 'I did not notice it was false,'" he asserted.
"New York Times v. Sullivan assures the American people that falsehoods will be broadcast and may never be corrected.
"Is the Times standard necessary for democracy?" Teknikoff's brief asked. "Our free and democratic neighbors have chosen not to think so.
"There is no evidence that England or Canada or Australia or Germany or France are less democratic than the United States.
"There is no evidence that public debate in these countries is less spirited or that their people are less informed."…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: British Libel Case Comes to the U.S. Contributors: Hernandez, Debra Gersh - Author. Magazine title: Editor & Publisher. Volume: 129. Issue: 24 Publication date: June 15, 1996. Page number: 62+. © 2002 Editor & Publisher. COPYRIGHT 1996 Gale Group.
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