Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

United States as a matter of sound policy and well-established international law. Fortunately, the Speech Act, whether intentionally or fortuitously, contains language that courts may be able to interpret as permitting some modest flexibility to avoid outright rejection of all foreign defamation judgments

Libel tourism describes the phenomenon of claimants bringing defamation lawsuits against American writers and publishers in jurisdictions of convenience where libel laws are plaintiff friendly, rather than in American courts where there is a widely held perception that the US Constitution guarantees very broad freedom of speech and media rights. Typically, the publication in question has taken place within the United States, its distribution in the jurisdiction where the legal proceeding or action is brought is negligible, and the plaintiff has no special connection to the forum nation. Outside of defamation law, this practice is simply known as forum shopping—bringing the lawsuit to the country where the laws are most favourable. Although this practice may be frowned upon, it exists nonetheless. The term libel tourism has also morphed into the even more politically loaded epithet of libel terrorism, which refers to the use of defamation lawsuits by purported members of terrorist groups who attempt to stifle free speech concerning their activities by bringing defamation claims in jurisdictions which follow the strict common law where truth may be the only defence and the defendant bears the burden of proving the truth of the publication and the publication is presumed to be false. Of course, proving truth is particularly elusive in publications concerning terrorism because sources are typically confidential or based on hearsay and, as a result, the author is often precluded from offering legally admissible evidence of truth. In the now notorious case of Bin Mahfouz v. Rachel Ehrenfeld, England enjoyed the dubious honour of being the jurisdiction of convenience.

In March 2008, the US Court of Appeals issued a decision that fuelled American media outrage at foreign defamation judgments directed against US interests.¹ In the aftermath of the September 2001 terrorist attacks on the World Trade Center, the book Funding Evil: How Terrorism Is Financed—and How to Stop It written by American author Rachel