MuJu and Libel
Today, any book bought online in England, even one published exclusively in another country, can ostensibly be subject to English libel law. As a result, publishers and booksellers are increasingly concerned about “libel tourism”: foreigners suing other foreigners in England or elsewhere, and using those judgments to intimidate authors in other countries, including the United States.
English libel law places the burden on the defendant to prove the truth of the assertion that’s alleged to be defamatory ((see the Times article and Basic UK Libel Law For Idiots)). Given this shifted onus and the multi-jurisdictional (muju for short?) reach of the internet, England becomes the weak spot for any author who writes something about someone that the latter doesn’t like — provided, of course, the author (read: publisher) isn’t prepared to pay the cost of the grand march to litigation.
The Times story focuses on a book by two American scholars that, in a few footnotes, asserted a connection between a member of the Saudi royal family and the financing of terrorist networks. The publisher — Cambridge University Press, no less! — caved without a wriggle, let alone a struggle: they pulped the copies remaining in warehouses, paid legal fees and damages, and asked librarians to please take the book off the shelves.
Actually, the decision becomes complex because US courts will not enforce an English defamation judgment, if they believe that the defendant’s First Amendment rights were not respected in the foreign proceeding – granted that’s the effective extra-territorial application of US law. See the Telnikoff and its earlier case.
But English law has developed too.
The English courts limited the size of defamation damage awards in Rantzen v MGN.
They have also developed immunity against actions by local governmental bodies, most notably in Derbyshire County Council v Times Newspapers.
In Reynolds v Times Newspapers the English courts accepted a form of qualified privilege for commentary about public and political matters.
Neither Rantzen nor Reynolds have been accepted in Canada. However our courts have kept defamation suits by government at bay. See the Kerouac decision and the Montague Township decision.
Bottom line – a libel plaintiff could come north of the US border (many do) but would have to be satisfied by lower damages than in England.
Simon
Defamation intricacies aren’t my sphere.
Why do you say that it is an extra-territorial application of US law if the US declines to enforce the UK judgment in the US. The US court is applying US law within the US. That it chooses not to honour a foreign judgment may raise comity issues, but isn’t that a different question?