International Considerations in Libel Jurisdiction

By Davidson, Sandra | Forum on Public Policy: A Journal of the Oxford Round Table, Spring 2008 | Go to article overview

International Considerations in Libel Jurisdiction


Davidson, Sandra, Forum on Public Policy: A Journal of the Oxford Round Table


International Considerations in Libel Jurisdiction Introduction

International considerations in libel jurisdiction constitute an increasingly important and controversial topic as more and more individuals and media outlets post information on Web sites. Of course, the Web sites are available for viewing and sometimes for listening on a world-wide basis. Each Web site exposes the world to the views and alleged facts of that particular news organization. In return, the Web site's creator is exposed, worldwide, to potential charges of libel. If a lawsuit is filed, the question that emerges is this: Does the country where the suit is filed have jurisdiction and thus have the power to decide the libel case?

The question of what country can hear a libel suit makes a great deal of difference to a media corporation that is facing potential liability. Why? Because libel laws vary so much from country to country.

For example, the notion that truth is an absolute defense in libel cases is not a notion universally shared. A differing viewpoint is that regardless of the truth, words that damage an individual's reputation are libelous. And yet another viewpoint says that truth is an aggravating circumstance, that is, that truth makes the libel just that much worse. (1)

Much more controversial than truth as a defense is the American notion of "actual malice." Under "actual malice," a plaintiff has to prove that a defendant either knew what was published was false, or entertained serious doubts as to the accuracy of what was published. (2) In fact, the U.S. Supreme Court did not start adopting the "actual malice" rule until 1964; before then, the United States imposed strict liability on media corporations, meaning that the only question asked was, "Are those your words?" (3)

In brief, a media defendant facing suit in a country where truth is not an absolute defense or where strict liability prevails will probably lose. A defendant facing suit when actual malice is required stands a good chance of winning. So the question of jurisdiction can make a great deal of difference in terms of exposure to libel damages, which can be quite high (multi-million-dollar equivalents).

Court cases are all over the legal terrain in terms of what jurisdictional doctrines should apply. This paper will not presume to give a definitive answer on jurisdictional doctrines that all the world should follow, but it will explore the possibilities and some of the favorable and unfavorable aspects of those possibilities.

The United States Changes Its Libel Rules

Part of the problem with international jurisdiction questions in libel cases is that the United States has placed itself in such a protective role toward the media.

The First Amendment to the U.S. Constitution, passed in 1791, says: "Congress shall make no law ... abridging the freedom of speech, or of the press.... " But the First Amendment is not absolute. Speech and press do have limits. Balancing must be done.

In the very first case where the U.S. Supreme Court started its interpretation of the First Amendment, Justice Oliver Wendell Holmes said, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." (4)

In libel cases, protection for the press must be balanced against other considerations such as protection for reputations. The U.S. Supreme Court recognizes that society has a strong interest in protecting peoples' reputations. This protection "reflects no more than our basic concept of the essential dignity and worth of every human being." (5) Thus the First Amendment right of freedom of speech is limited by society's need to protect people's reputations.

But in 1964, the U.S. Supreme Court created a giant leap forward for the press and broadcasters in terms of protection from libel suits. In the landmark case of New York Times Co. …

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