The US Senate has passed a bill against ‘libel tourism’, essentially barring the enforcement of defamation judgments from places that the US deems to protect free speech insufficiently. In what has become a widespread but still unfortunate practice, the bill’s name is an acronym: the Securing the Protection of our Enduring and Established Constitutional Heritage Act (viz the SPEECH Act).*
Is such a bill necessary? Would not a rule like the Canadian one of not enforcing a foreign judgment if the foreign court did not have a real and substantial connection with the controversy be enough to refuse enforcement? Or are British rules on jurisdiction over online publications no more liberal than American or Canadian laws? Did the Ontario Court of Appeal in Bangoura v. Washington Post 2005 CanLII 32906 (ON C.A.) get it right?
Is the Senate bill just a little hypocritical, given the willingness of many US courts to take jurisdiction over activities that occur well outside the US (and of US legislatures to give it to them)?
Is the test clear: refuse to enforce judgments that undermine the first amendment to the Constitution of the United States? Presumably that should mean that enforcement in the US would undermine the protection of US speech by the first amendment, so it should apply only to speech made in the US that created liability abroad. There does not seem to be any such limit in the Bill.
Would this Bill be a good idea here?
* A more extreme example was introduced last week: the “Building Effective Strategies to Promote Responsibility Accountability Choice Transparency Innovation Consumer Expectations and Safeguards” Act – the BEST PRACTICES Act – dealing with privacy and computer security. (This is not to be confused with the “Battlefield Excellence through Superior Training Practices Act”, known as the BEST Practices Act…)