[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2765 Reported in Senate (RS)]

                                                       Calendar No. 460
111th CONGRESS
  2d Session
                                H. R. 2765


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 16, 2009

  Received; read twice and referred to the Committee on the Judiciary

                             July 14, 2010

                Reported by Mr. Leahy, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 AN ACT


 
  To amend title 28, United States Code, to prohibit recognition and 
    enforcement of foreign defamation judgments and certain foreign 
   judgments against the providers of interactive computer services.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

<DELETED>SECTION 1. RECOGNITION OF FOREIGN DEFAMATION 
              JUDGMENTS.</DELETED>

<DELETED>    (a) In General.--Part VI of title 28, United States Code, 
is amended by adding at the end the following:</DELETED>

          <DELETED>``CHAPTER 181--FOREIGN JUDGMENTS</DELETED>

<DELETED>``Sec.
<DELETED>``4101. Definitions.
<DELETED>``4102. Recognition of foreign defamation judgments.
<DELETED>``4103. Attorneys' fees.
<DELETED>``Sec. 4101. Definitions</DELETED>
<DELETED>    ``In this chapter:</DELETED>
        <DELETED>    ``(1) Domestic court.--The term `domestic court' 
        means a Federal court or a court of any State.</DELETED>
        <DELETED>    ``(2) Foreign court.--The term `foreign court' 
        means a court, administrative body, or other tribunal of a 
        foreign country.</DELETED>
        <DELETED>    ``(3) Foreign judgment.--The term `foreign 
        judgment' means a final judgment rendered by a foreign 
        court.</DELETED>
        <DELETED>    ``(4) State.--The term `State' means each of the 
        several States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States.</DELETED>
<DELETED>``Sec. 4102. Recognition of foreign defamation 
              judgments</DELETED>
<DELETED>    ``(a) First Amendment Considerations.--Notwithstanding any 
other provision of Federal or State law, a domestic court shall not 
recognize or enforce a foreign judgment for defamation whenever the 
party opposing recognition or enforcement of the judgment claims that 
the judgment is inconsistent with the first amendment to the 
Constitution of the United States, unless the domestic court determines 
that the judgment is consistent with the first amendment. The burden of 
establishing that the foreign judgment is consistent with the first 
amendment shall lie with the party seeking recognition or enforcement 
of the judgment.</DELETED>
<DELETED>    ``(b) Jurisdictional Considerations.--Notwithstanding any 
other provision of Federal or State law, a domestic court shall not 
recognize or enforce a foreign judgment for defamation if the party 
opposing recognition or enforcement establishes that the exercise of 
personal jurisdiction over such party by the foreign court that 
rendered the judgment failed to comport with the due process 
requirements imposed on domestic courts by the Constitution of the 
United States.</DELETED>
<DELETED>    ``(c) Judgment Against Provider of Interactive Computer 
Service.--Notwithstanding any other provision of Federal or State law, 
a domestic court shall not recognize or enforce a foreign judgment for 
defamation against the provider of an interactive computer service, as 
defined in section 230 of the Communications Act of 1934 (47 U.S.C. 
230), whenever the party opposing recognition or enforcement of the 
judgment claims that the judgment is inconsistent with such section 
230, unless the domestic court determines that the judgment is 
consistent with such section 230. The burden of establishing that the 
foreign judgment is consistent with such section 230 shall lie with the 
party seeking recognition or enforcement of the judgment.</DELETED>
<DELETED>    ``(d) Appearances Not a Bar.--An appearance by a party in 
a foreign court rendering a foreign judgment to which this section 
applies for the purpose of contesting the foreign court's exercise of 
jurisdiction in the case, moving the foreign court to abstain from 
exercising jurisdiction in the case, defending on the merits any claims 
brought before the foreign court, or for any other purpose, shall not 
deprive such party of the right to oppose the recognition or 
enforcement of the judgment under this section.</DELETED>
<DELETED>``Sec. 4103. Attorneys' fees</DELETED>
<DELETED>    ``In any action brought in a domestic court to enforce a 
foreign judgment for defamation, the court may allow the party opposing 
recognition or enforcement of the judgment a reasonable attorney's fee 
if such party prevails in the action on a ground specified in 
subsection (a), (b), or (c) of section 4102.''.</DELETED>
<DELETED>    (b) Clerical Amendment.--The table of chapters for part VI 
of title 28, United States Code, is amended by adding at the end the 
following:</DELETED>

<DELETED>``181. Foreign Judgments...........................    4101''.

</DELETED>SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Securing the Protection of our 
Enduring and Established Constitutional Heritage Act'' or the ``SPEECH 
Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The freedom of speech and the press is enshrined in the 
        first amendment to the Constitution, and is necessary to 
        promote the vigorous dialogue necessary to shape public policy 
        in a representative democracy.
            (2) Some persons are obstructing the free expression rights 
        of United States authors and publishers, and in turn chilling 
        the first amendment to the Constitution of the United States 
        interest of the citizenry in receiving information on matters 
        of importance, by seeking out foreign jurisdictions that do not 
        provide the full extent of free-speech protections to authors 
        and publishers that are available in the United States, and 
        suing a United States author or publisher in that foreign 
        jurisdiction.
            (3) These foreign defamation lawsuits not only suppress the 
        free speech rights of the defendants to the suit, but inhibit 
        other written speech that might otherwise have been written or 
        published but for the fear of a foreign lawsuit.
            (4) The threat of the libel laws of some foreign countries 
        is so dramatic that the United Nations Human Rights Committee 
        examined the issue and indicated that in some instances the law 
        of libel has served to discourage critical media reporting on 
        matters of serious public interest, adversely affecting the 
        ability of scholars and journalists to publish their work. The 
        advent of the internet and the international distribution of 
        foreign media also create the danger that one country's unduly 
        restrictive libel law will affect freedom of expression 
        worldwide on matters of valid public interest.
            (5) Governments and courts of foreign countries scattered 
        around the world have failed to curtail this practice of 
        permitting libel lawsuits against United States persons within 
        their courts, and foreign libel judgments inconsistent with 
        United States first amendment protections are increasingly 
        common.

SEC. 3. RECOGNITION OF FOREIGN DEFAMATION JUDGMENTS.

    (a) In General.--Part VI of title 28, United States Code, is 
amended by adding at the end the following:

                    ``CHAPTER 181--FOREIGN JUDGMENTS

``Sec.
``4101. Definitions.
``4102. Recognition of foreign defamation judgments.
``4103. Removal.
``4104. Declaratory judgments.
``4105. Attorney's fees.
``Sec. 4101. Definitions
    ``In this chapter:
            ``(1) Defamation.--The term `defamation' means any action 
        or other proceeding for defamation, libel, slander, or similar 
        claim alleging that forms of speech are false, have caused 
        damage to reputation or emotional distress, have presented any 
        person in a false light, or have resulted in criticism, 
        dishonor, or condemnation of any person.
            ``(2) Domestic court.--The term `domestic court' means a 
        Federal court or a court of any State.
            ``(3) Foreign court.--The term `foreign court' means a 
        court, administrative body, or other tribunal of a foreign 
        country.
            ``(4) Foreign judgment.--The term `foreign judgment' means 
        a final judgment rendered by a foreign court.
            ``(5) State.--The term `State' means each of the several 
        States, the District of Columbia, and any commonwealth, 
        territory, or possession of the United States.
            ``(6) United states person.--The term `United States 
        person' means--
                    ``(A) a United States citizen;
                    ``(B) an alien lawfully admitted for permanent 
                residence to the United States;
                    ``(C) an alien lawfully residing in the United 
                States at the time that the speech that is the subject 
                of the foreign defamation action was researched, 
                prepared, or disseminated; or
                    ``(D) a business entity incorporated in, or with 
                its primary location or place of operation in, the 
                United States.
``Sec. 4102. Recognition of foreign defamation judgments
    ``(a) First Amendment Considerations.--
            ``(1) In general.--Notwithstanding any other provision of 
        Federal or State law, a domestic court shall not recognize or 
        enforce a foreign judgment for defamation unless the domestic 
        court determines that--
                    ``(A) the defamation law applied in the foreign 
                court's adjudication provided at least as much 
                protection for freedom of speech and press in that case 
                as would be provided by the first amendment to the 
                Constitution of the United States and by the 
                constitution and law of the State in which the domestic 
                court is located; or
                    ``(B) even if the defamation law applied in the 
                foreign court's adjudication did not provide as much 
                protection for freedom of speech and press as the first 
                amendment to the Constitution of the United States and 
                the constitution and law of the State, the party 
                opposing recognition or enforcement of that foreign 
                judgment would have been found liable for defamation by 
                a domestic court applying the first amendment to the 
                Constitution of the United States and the constitution 
                and law of the State in which the domestic court is 
                located.
            ``(2) Burden of establishing application of defamation 
        laws.--The party seeking recognition or enforcement of the 
        foreign judgment shall bear the burden of making the showings 
        required under subparagraph (A) or (B).
    ``(b) Jurisdictional Considerations.--
            ``(1) In general.--Notwithstanding any other provision of 
        Federal or State law, a domestic court shall not recognize or 
        enforce a foreign judgment for defamation unless the domestic 
        court determines that the exercise of personal jurisdiction by 
        the foreign court comported with the due process requirements 
        that are imposed on domestic courts by the Constitution of the 
        United States.
            ``(2) Burden of establishing exercise of jurisdiction.--The 
        party seeking recognition or enforcement of the foreign 
        judgment shall bear the burden of making the showing that the 
        foreign court's exercise of personal jurisdiction comported 
        with the due process requirements that are imposed on domestic 
        courts by the Constitution of the United States.
    ``(c) Judgment Against Provider of Interactive Computer Service.--
            ``(1) In general.--Notwithstanding any other provision of 
        Federal or State law, a domestic court shall not recognize or 
        enforce a foreign judgment for defamation against the provider 
        of an interactive computer service, as defined in section 230 
        of the Communications Act of 1934 (47 U.S.C. 230) unless the 
        domestic court determines that the judgment would be consistent 
        with section 230 if the information that is the subject of such 
        judgment had been provided in the United States.
            ``(2) Burden of establishing consistency of judgment.--The 
        party seeking recognition or enforcement of the foreign 
        judgment shall bear the burden of establishing that the 
        judgment is consistent with section 230.
    ``(d) Appearances Not a Bar.--An appearance by a party in a foreign 
court rendering a foreign judgment to which this section applies shall 
not deprive such party of the right to oppose the recognition or 
enforcement of the judgment under this section, or represent a waiver 
of any jurisdictional claims.
    ``(e) Rule of Construction.--Nothing in this section shall be 
construed to--
            ``(1) affect the enforceability of any foreign judgment 
        other than a foreign judgment for defamation; or
            ``(2) limit the applicability of section 230 of the 
        Communications Act of 1934 (47 U.S.C. 230) to causes of action 
        for defamation.
``Sec. 4103. Removal
    ``In addition to removal allowed under section 1441, any action 
brought in a State domestic court to enforce a foreign judgment for 
defamation in which--
            ``(1) any plaintiff is a citizen of a State different from 
        any defendant;
            ``(2) any plaintiff is a foreign state or a citizen or 
        subject of a foreign state and any defendant is a citizen of a 
        State; or
            ``(3) any plaintiff is a citizen of a State and any 
        defendant is a foreign state or citizen or subject of a foreign 
        state,
may be removed by any defendant to the district court of the United 
States for the district and division embracing the place where such 
action is pending without regard to the amount in controversy between 
the parties.
``Sec. 4104. Declaratory judgments
    ``(a) Cause of Action.--
            ``(1) In general.--Any United States person against whom a 
        foreign judgment is entered on the basis of the content of any 
        writing, utterance, or other speech by that person that has 
        been published, may bring an action in district court, under 
        section 2201(a), for a declaration that the foreign judgment is 
        repugnant to the Constitution or laws of the United States. For 
        the purposes of this paragraph, a judgment is repugnant to the 
        Constitution or laws of the United States if it would not be 
        enforceable under section 4102 (a), (b), or (c).
            ``(2) Burden of establishing unenforceability of 
        judgment.--The party bringing an action under paragraph (1) 
        shall bear the burden of establishing that the foreign judgment 
        would not be enforceable under section 4102 (a), (b), or (c).
    ``(b) Nationwide Service of Process.--Where an action under this 
section is brought in a district court of the United States, process 
may be served in the judicial district where the case is brought or any 
other judicial district of the United States where the defendant may be 
found, resides, has an agent, or transacts business.
``Sec. 4105. Attorneys' fees
    ``In any action brought in a domestic court to enforce a foreign 
judgment for defamation, including any such action removed from State 
court to Federal court, the domestic court shall, absent exceptional 
circumstances, allow the party opposing recognition or enforcement of 
the judgment a reasonable attorney's fee if such party prevails in the 
action on a ground specified in section 4102 (a), (b), or (c).''.
    (b) Sense of Congress.--It is the Sense of the Congress that for 
the purpose of pleading a cause of action for a declaratory judgment, a 
foreign judgment for defamation or any similar offense as described 
under chapter 181 of title 28, United States Code, (as added by this 
Act) shall constitute a case of actual controversy under section 
2201(a) of title 28, United States Code.
    (c) Technical and Conforming Amendment.--The table of chapters for 
part VI of title 28, United States Code, is amended by adding at the 
end the following:

``181. Foreign judgments....................................   4101.''.
                                                       Calendar No. 460

111th CONGRESS

  2d Session

                               H. R. 2765

_______________________________________________________________________

                                 AN ACT

  To amend title 28, United States Code, to prohibit recognition and 
    enforcement of foreign defamation judgments and certain foreign 
   judgments against the providers of interactive computer services.

_______________________________________________________________________

                             July 14, 2010

                       Reported with an amendment