August 11, 2010
New Anti-Libel Tourism Act (HR 2765) Extends 47 USC 230 to Foreign Judgments
By Eric Goldman
President Obama signed HR 2765, the "SPEECH Act," into law, codified at 28 USC Secs. 4101-4105. The act prohibits US courts from enforcing foreign defamation judgments unless (1) the judgment would satisfy First Amendment or similar state constitutional protections, and (2) the foreign court making the ruling had jurisdiction that comports with our due process requirements. To get a US court to enforce the foreign judgment, the plaintiff bears the burden of proof that the judgment meets these standards. Effectively, these requirements will prevent a defamation plaintiff from forum-shopping globally; even if the plaintiff finds a more friendly jurisdiction, it will still have to satisfy US legal requirements for defamation before enforcing the judgment here.
The act also applies 47 USC 230 to foreign judgments; if the subject information would have been protected by 47 USC 230 in the US, the plaintiff has the burden to show that the foreign judgment comports with 230. Very late in the drafting process, I raised a minor concern that the shield only applies to "providers of interactive computer services" and not ICS "users," even though 230 protects both providers and users. This is a minor drafting error, but I hope it will not result in any judgments that slip through the cracks. Also, the statute expressly pertains only to defamation claims; other causes of action do not get the shield, and usually multiple causes of action are asserted alongside a defamation claim.
As far as I can recall, this is only the third time that Congress has monkeyed with 230 since its initial passage. The other two:
* In 1998, Congress added 230(d), which requires ICSs to tell their customers about the availability of filtering technology. 230(d) is a stupid disclosure requirement, and I rarely see it complied with in the field. I have often wondered if plaintiffs will ever try to argue that making the 230(d) mandatory disclosure is a precondition to 230(c)'s immunity. I've not seen that argued before, and I don't think the statutory construction supports that interpretation, but plaintiffs are running out of creative arguments to get around 230's immunity.
* In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act of 2006, which attempted to regulate Internet gambling. At the time, I wrote:
The statute partially reduces the 230 limitations by allowing the DOJ or state AGs to seek a court order requiring ICSs to take down a lawbreaking website. 31 USC 5365(c). Without this statutory exception, 230 should have barred any civil orders. At the same time, the statute appears to expand 230 protection to eliminate ICS liability under the Wire Act unless the ICS has “actual knowledge and control of bets and wagers” and owns or operates an illegal gambling website. I’m not exactly sure it means to have “actual knowledge and control of bets and wagers,” but my suspicion is that this defines a very narrow universe of activities. So, on balance, it looks like this law may have slightly expanded ICS immunization by providing some limits on ICS liability for third party criminal gambling activities.
Because Congress so rarely modifies 230's coverage, the SPEECH Act is important for that reason alone. However, in practice, I can't recall a foreign judgment being enforced in the US against a service provider that would have claimed 47 USC 230 in the US, while we have seen libel tourism against the direct publishers. As a result, I don't expect the 230-related prong of the SPEECH Act to be invoked frequently, but it's definitely nice to have.
A final nice touch: successful defendants under the statute should generally get their attorney's fees.
I spend a lot of time bashing legislatures on this blog, so I want to take a moment to commend Congress for getting something right. This law has two meritorious effects: it hinders transborder litigation gamesmanship and ensures First Amendment and 47 USC 230 protections for US defendants so long as they are in US courts. This is great news all around. Many people deserve credit for getting this law to the finish law, but I want to specially commend Rep. Steve Cohen of Tennessee, who sponsored this law as well as the much-needed federal anti-SLAPP law. These two bills represent the kind of work I wish all of our legislators were pursuing.
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