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harder to justify because American courts have long refused to enforce foreign defamation judgments. Furthermore, the existing law of comity of nations provides a sound and thoughtful way to reconcile differing American and British concepts of damage to reputation.
In the age of the internet, media professionals, including lawyers, judges, journalists, authors, publishers and a host of others, agree that “something” must be done about cross-border libel and slander disputes. As the distinctions between libel (written material) and slander (oral statements) have now largely disappeared, the two concepts are collectively known as defamation. Traditional national defamation laws seem ill-equipped to deal with the new media of the twenty-first century. These laws are increasingly causing friction among nations because publications can no longer have truly restricted dissemination. Consequently, publications prepared under broad US First Amendment freedom of speech rights may ultimately be scrutinised by a court in London, Melbourne, or even Berlin applying different—if not more restrictive—laws on rights of privacy and freedom of speech. Following a well-publicised decision by an English court in 2004 against American author Rachel Ehrenfeld, American states and the US Congress have responded with reactive legislation aimed at curtailing what has been called libel tourism or libel terrorism by mandating the denial of recognition or the extension of comity to these “un-American” decisions.
The heart of the libel tourism laws and most particularly the federal Speech Act of 2010 is that American courts must refuse to recognise and enforce defamation judgments that emanate from countries where freedom of speech exists at a level that is lower than those of the First Amendment. However, these libel tourism laws are flawed because they fail to consider that in some circumstances American courts should enforce foreign defamation judgments because American interests are minor and, at least with respect to England and the United States, there are elements of convergence in defamation law that should not be impeded by inflexible, unilateral fiats like the libel tourism statutes.
Rather than being forced to interpret inflexible legislation, American courts should be able to continue to look to the well-established legal