[Congressional Record Volume 155, Number 89 (Monday, June 15, 2009)]
[House]
[Pages H6770-H6771]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        PROHIBITING ENFORCEMENT OF FOREIGN DEFAMATION JUDGMENTS

  Mr. COHEN. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 2765) 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.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 2765

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

     SECTION 1. 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. Attorneys' fees.

     ``Sec. 4101. Definitions

       ``In this chapter:
       ``(1) Domestic court.--The term `domestic court' means a 
     Federal court or a court of any State.
       ``(2) Foreign court.--The term `foreign court' means a 
     court, administrative body, or other tribunal of a foreign 
     country.
       ``(3) Foreign judgment.--The term `foreign judgment' means 
     a final judgment rendered by a foreign court.
       ``(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.

     ``Sec. 4102. Recognition of foreign defamation judgments

       ``(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.
       ``(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.
       ``(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.
       ``(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.

     ``Sec. 4103. Attorneys' fees

       ``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).''.
       (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:

``181. Foreign judgments...................................4101.''.....

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Tennessee (Mr. Cohen) and the gentleman from Texas (Mr. Gohmert) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Tennessee.


                             General Leave

  Mr. COHEN. First I ask unanimous consent that all Members have 5 
legislative days to revise and extend their

[[Page H6771]]

remarks and include extraneous material on the bill under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Tennessee?
  There was no objection.
  Mr. COHEN. I yield myself as much time as I may consume.
  Mr. Speaker, H.R. 2765 prohibits U.S. courts from recognizing or 
enforcing foreign defamation judgments that are inconsistent with our 
First Amendment or fundamental due process. This legislation addresses 
what has come to be referred to as libel tourism, doing an end run 
around the First Amendment by suing American authors and publishers for 
defamation in the courts of foreign countries with more plaintiff-
friendly defamation laws, particularly Britain. Britain has become a 
favorite destination for libel tourists for a number of reasons. First, 
British law lacks our constitutional free speech protections and 
instead, specifically disfavors speech critical of public officials and 
public figures.
  Second, British libel law places the burden of proving the truth of 
the allegedly defamatory statement on the defendant. This distinction 
has drawn criticism not only from American defenders of free speech but 
also from the United Nations and even from some Members of the British 
Parliament.
  And third, Britain takes a very expansive view of personal 
jurisdiction. A British court can exercise personal jurisdiction over a 
libel defendant if his or her statement, wherever it was made or aimed, 
can be said to cause ``real or substantial'' harm or injury to 
reputation in Britain.
  Combined with the Internet, this expansive view has rendered American 
authors and publishers especially vulnerable to libel suits in Britain. 
As one commentator has said, ``In the Internet age, the British libel 
laws can bite you no matter where you live.''
  H.R. 2765 will deter libel tourists from taking advantage of these 
differences in the laws of Britain and other foreign jurisdictions and 
our precious First Amendment by imposing important limitations on the 
enforcement of foreign defamation judgments in our courts. Under the 
bill, a U.S. court cannot enforce a foreign defamation judgment 
inconsistent with the First Amendment to our Constitution or when the 
foreign court's exercise of personal jurisdiction over the defendant 
does not comport with our due process requirements. And a U.S. court 
cannot enforce a foreign defamation judgment against an interactive 
computer service if doing so is inconsistent with section 230 of the 
Communications Act of 1934. This will ensure that libel tourists cannot 
chill speech by suing a third-party interactive computer service rather 
than the actual author of the statement.
  Finally, the bill allows a court to award attorney's fees to the 
party resisting enforcement of the foreign judgment if that party 
prevails. This puts some added teeth in the bill. That was a 
recommendation at our hearing on the bill. This will not only 
compensate the American author or publishers for the expense of 
defending a nonmeritorious enforcement action but will help dissuade 
the would-be libel tourist from putting them to that expense in the 
first place.
  I am joined in introducing this legislation by my colleague Darrell 
Issa of California. Last year our bill passed the House overwhelmingly, 
and I ask my colleagues to support it again this year. I would like to 
thank Judiciary Committee Chairman John Conyers and Ranking Member 
Lamar Smith and all the cosponsors of this bill for their help and 
support in bringing it to this point.
  I reserve the balance of my time.
  Mr. GOHMERT. Mr. Speaker, I recognize myself for such time as I may 
consume.
  Thomas Jefferson observed that ``the only security of all is in a 
free press. The agitation it produces must be submitted to. It is 
necessary to keep the waters pure.'' Were he alive today, Jefferson 
would not take too kindly to libel tourists, the subject of H.R. 2765. 
Oh, it seems true that some U.S. media more recently have become fan 
clubs rather than objective pursuers of truth, but there are still some 
very dedicated journalists in the United States who should be free from 
harassment from inappropriate libel suits in overseas courts.
  In the wake of 9/11, the American media have become increasingly 
alarmed over a phenomenon called libel tourism. The term refers to the 
subject of a critical news story suing an American author or reporter 
of an article, story or book for defamation in a plaintiff-friendly 
overseas or foreign forum. These suits are filed mostly in Great 
Britain, as its libel and slander laws provide writers and journalists 
with less protection than those under the U.S. system that honors a 
First Amendment and a free press. Persons identified in news stories as 
terrorists or terrorist sympathizers have brought some of the higher-
profile suits.
  So how would American courts treat foreign judgments that clash with 
American legal values under this bill? A foreign judgment will not be 
enforced in the U.S. court when the foreign judgment is offensive to 
State public policy or the Constitution. And that's what this bill 
does.
  Last September, as my friend from Tennessee indicated, the House 
passed a libel tourism bill that codified existing U.S. treatment of 
the subject. The other body did not act on the measure. So we revisit 
the issue today, better informed, thanks to a subcommittee hearing, 
full committee markup and substantial input by legal experts on the 
subject matter.
  H.R. 2765 contains four major provisions, as my colleague from 
Tennessee has outlined.
  Mr. Speaker, this bipartisan legislation provides appropriate and 
necessary protection for U.S. journalists and authors and represents 
the strongest constitutionally sound policy in response to libel 
tourism. The issue has been thoroughly considered by the Judiciary 
Committee, and I would urge Members to support H.R. 2765.
  Mr. Speaker, I have no further speakers. So when my colleague across 
the aisle is ready to close, I will likewise be ready.
  Mr. COHEN. Mr. Speaker, I would like to withdraw the motion.
  The SPEAKER pro tempore. The motion to suspend the rules and pass 
H.R. 2765 is withdrawn.

                          ____________________