Out-Law.com reported Friday that a lingering bill on free speech and international law just cleared the Senate and is likely to pass the House before the fall recess. The bill (S.3518) tackles judgments from defamation lawsuits in foreign courts seeking to be enforced in the United States. Without going into the minutiae of international law, the United States’ willingness to use American law to enforce matters found in foreign courts is regulated by a series of bilateral agreements and domestic laws, and this bill deals where and when the United States is willing to enforce foreign defamation claims.
The bill, entitled the Securing the Protection of our Enduring and Established Constitutional Heritage Act (the “SPEECH Act,” and yes, it’s a horrible name), restricts the enforceability of foreign judgments in two major ways:
First, the law will prohibit the recognition or enforcement of a foreign judgment unless a court determines either that the defamation law in the foreign state provided free speech safeguards equivalent to the First Amendment and the court’s state constitution, or the defending party would have been found liable by a domestic court applying domestic defamation law.
Second, the law provides for protection for online service providers equivalent to the U.S. Communications Decency Act’s Section 230, which provides online service providers some of the most robust protection in all of secondary liability law. According to the SPEECH Act, a court may not enforce a judgment against a computer service provider unless that judgment can be applied consistent with the shield provided by § 230. (Sidenote – Berkman Fellow David Ardia just published a very impressive empirical study of Section 230 for those curious about that law and its application.)
I would characterize the bill as an unqualified positive congressional move, albeit a bit technical in application (and as Marc Randazza argues, a relatively small step toward broader protection for online speech). The SPEECH Act clearly targets the growing practice of libel tourism, where defamation and libel plaintiffs use the laws of foreign countries (most frequently, England) to obtain judgments against speech that would likely be protected inside the United States. Given the universal nature of the Internet, it’s easy to see how online speech — even speech clearly between two domestic parties — can fall into this forum-shopping trick, thus denying even American authors the stalwart protections of the First Amendment.
Update 11 August – Eric Goldman posted an analysis of the bill after the President signed it, and gives it the thumbs-up as well (though wonders the extent to which it will be used).