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Apr 24, 2010

Dealing with Foreign Legal Threats

cross posted at the Citizen Media Law Project)  
Online publishers should realize that Internet content is available worldwide, and may lead to legal problems outside the United States. While this tends to primarily be an issue for big companies (with deep pockets), it's still a matter of concern for small organizations and even individuals, as illustrated by the French prosecution of an NYU law professor in 2010 for hosting an allegedly defamatory book review.


Because the focus of CMLP's legal guide is U.S. law, this section cannot explain in detail the legal issues that online content may run into abroad. But it is important to realize that foreign laws can differ—sometimes significantly—from American law.

Examples of Legal Issues

Some examples of legal issues that online publishers may run into in countries outside the United States include the following. (Note: these are just examples; they do not constitute a comprehensive list.)
  • Different standards for libel: Countries have differing standards for defamation, many of which differ significantly from standards in the United States. A 2005 summary of defamation laws in 55 member nations of the Organization for Security and Co-operation in Europe (OSCE) is available here.
  • Falsity assumed: Under existing law in England and Wales, which Parliament may change in the near future, defamatory statements are presumed to be false. In other words, the defendant who made the statement must prove that it is true. This is the opposite of the United States, where the plaintiff—the subject of the statement—generally must prove that the statement is false as an element of the defamation claim, at least in cases involving matters of public concern or a public figure.
  • Criminal defamation: In many countries, defamation is a criminal offense, punishable by fines and/or imprisonment. Some countries have "insult laws," which make it a criminal offense to "insult" the honor or dignity of public officials and/or symbols or institutions of the state. The advocacy group Article 19 maintains global maps of criminal defamation laws; as of 2010, more than 140 nations had criminal defamation provisions, and in several nations prosecutions under these laws are common. (Some states in the U.S. also have criminal defamation laws. Prosecutions are relatively infrequent, but have apparently increased with the rise of the Internet.)
  • Laws prohibiting hate speech: Austria, France and Germany have laws prohibiting Nazi propoganda and display of Nazi symbols, while laws in several other countries ban speech denying the Holocaust, and other historical genocides and crimes against humanity. Several nations also have laws criminalizing speech that incites hatred on the basis of chacteristics such as race, religion, ethnicity, and national origin. (The American Enterprise Institute published a report in 2006 summarizing and criticizing such laws in Europe.) There have been a number of cases in which nations with such laws have sought to use them to extradite their citizens from abroad to face criminal charges for web content.
  • Different notions of privacy: Many countries have laws that are more protective of personal privacy than the laws in the United States. These laws are more restrictive about what publishers can legally disclose about others. For example, in 2004 a British newspaper was found to have violated the privacy rights of model Naomi Campbell by publishing a photograph of her leaving a drug treatment clinic on a public sidewalk. See Campbell v. MGN Limited, [2004] UKHL 22.
  • Copyright: 164 nations, including the United States, have signed the international Berne Convention, agreeing to recognize copyrights from other nations that are parties to the agreement. So a copyright in a foreign country may be enforced in a United States court, even if the material is not under copyright in the United States. Also, in some countries other people may be able to use material that is copryrighted in the United States and posted to a U.S.-based web site in ways that would not be legal in the United States. A basic summary of copyright laws of 20 nations is available here.

Responding to a Foreign Claim

If you post something online that upsets someone in another country, that person may use several means to contact you about their complaint: sending a cease-and-desist letter or e-mail; filing a lawsuit; and/or sending a subpoena. If a lawsuit is filed against you, it could be in a U.S. court or in a foreign court. Either way, your initial response should be the same: Don't panic, but also don't delay.

One big issue when it comes to a lawsuit or threat involving a foreign court is jurisdiction. Jurisdiction refers to the power of the foreign court to hear the case and exert power over you. In some countries, the fact that the material at issue is posted on the Internet and available worldwide—including in the country in question—is enough for the courts of that country to have jurisdiction over a case, at least according to that country's laws.

For example, in 2002 the Australia Supreme Court held that an American company, Dow Jones, Inc., could be sued in Australia over an article that appeared in the printed version and on the web site of its publication Barron's, which was accessible online in Australia. Dow Jones & Company Inc. v. Gutnick, [2002] HCA 56 (Austl.). In 2010, Germany's highest court overruled two lower courts to hold that The New York Times could be sued in that country by a German citizen over a 2001 article available online, citing the article's references to Germany and the 14,484 registered users of the Times website with German addresses. VI ZR 23/09 (BGHZ March 2010). (Translated press release here.)

As an example of how complicated this can get, in August 2009 an American-based computer game company sued a British blogger in an Australian court. The company dropped the case after a second day of initial hearings in the case.

A judgment against you in a foreign country could remain dormant until you enter the country at a later time, for whatever reason. Therefore, you should consider whether a foreign threat you are facing comes from a country where you may want to travel in the future.

In order to respond to a threat of legal action in a foreign country, even if only to challenge the court's jurisdiction, you either have to handle the situation yourself, find non-profit legal help, or hire a lawyer in that country. In any case, the general advice on our Finding Legal Help still applies, but you will need to deal with the added complexity presented by a foreign legal system. (Sorry, our Online Media Legal Network is currently limited to U.S. lawyers.)
 
While an exhaustive list is beyond the scope of this guide, here are some resources that may help you find legal help abroad:

Choosing to Not Respond to a Foreign Claim

Alternately, if you do not have any assets, employees, or other interests in and do not plan to travel to the country from which the legal threat originates, you may choose to not to respond to the foreign legal action. This is not an action to take lightly, and it is not the same as ignoring the threat. In most cases, the decision to not respond to a foreign legal threat should be made in consultation with an attorney.

This was the course of action taken by American author Rachel Ehrenfeld, who was sued in England by Saudi businessman Khalid bin Mahfouz over statements in her book Funding Evil. Ehrenfeld decided to not respond to bin Mahfouz's lawsuit. An English court held her in "default" in 2005, enjoined publication of the book in Great Britain, and eventually awarded £110,000 in compensation and costs to bin Mahfouz and his two sons. bin Mahfouz v. Ehrenfeld, No. HQ04X01988 (Q.B. judgment May 3, 2005).

Ehrenfeld then sued bin Mahfouz in a federal court in New York, seeking a declaration that any English libel judgment against her could not be enforced in the United States consistent with the First Amendment. The court dismissed Ehrenfeld's lawsuit on the grounds that bin Mahfouz had not actually tried to enforce the judgment in the United States, and the dismissal was affirmed by the Second Circuit Court of Appeals. Ehrenfeld v. Mahfouz, 489 F.3d 542 (2d Cir. 2007) (certifying jurisdictional question to New York Court of Appeals); Ehrenfeld v. Mahfouz, 518 F.3d 102 (2nd Cir. 2008) (affirming dismissal of case after New York Court of Appeals answered the certified question, 9 N.Y. 3rd 501 (2007)).

Ehrenfeld and her allies then launched an effort to pass statutes barring the enforcement of foreign libel judgments that do not comport with First Amendment standards. Such statutes, dubbed "libel tourism" laws, have been adopted in California (Cal. Civ. Pro. §§ 1716, 1717); Florida (Fla. Stat. §§ 55.605 (2)(h); 55.6055); Illinois (735 Ill. Comp. Stat. 5/12-621 (b)(7), 5/2-209(b-5)); and New York (N.Y. C.P.L.R. §§ 302(d); 5304 (b)(8)). Several similar bills are pending in Congress.

Libel tourism statutes like these would make it harder for a foreign plaintiff to enforce a foreign judgment against you in the U.S. Even without a libel tourism statute, U.S. courts may not recognize a foreign judgment as valid if you have no ties to the foreign country other than that your content can be accessed there. But, there is no guarantee.
 
Again, choosing not to respond to a foreign lawsuit is a decision that must not be made lightly and should in most cases be done in consultation with an attorney.
Posted by Eric
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