[Congressional Record Volume 155, Number 89 (Monday, June 15, 2009)]
[House]
[Pages H6771-H6773]
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, as amended.
  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

[[Page H6772]]

     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) 
     of section 4102.''.
       (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. Mr. Speaker, I once again ask unanimous consent that all 
Members have 5 legislative days to revise and extend their 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.

                              {time}  1700

  Mr. COHEN. Mr. Speaker, I reserve my time and ask if the gentleman 
from Texas would like to yield back his time, wherefore I will yield 
mine.
  Mr. GOHMERT. Mr. Speaker, I yield myself such time as I may consume.
  The comments I made previously were with regard to this bill, as 
amended, so I would ask that the Record so reflect, and since a lot of 
people have difficulty hearing me speak very long because of the 
accent, I won't repeat those comments.
  I yield back the balance of my time.
  Mr. COHEN. Mr. Speaker, I appreciate the gentleman from Texas, and I 
understand him clear and well. Some people don't understand us as well 
as we understand each other.
  I would like to also request that the previous remarks that I made be 
incorporated by reference onto this bill.
  Mr. KING of New York. Mr. Speaker, today I rise in support of H.R. 
2765, legislation that would prohibit the recognition and enforcement 
of foreign defamation judgments and certain foreign judgments against 
the providers of interactive computer services. This bill, like 
legislation (Free Speech Protection Act) that I introduced earlier this 
year attempts to deal with the issue of ``libel tourism'' that 
threatens not only Americans' first amendment freedom of speech but 
also their ability to inform the general public about existential 
threats; namely, who are the terrorists and who are their financial 
backers.
  Let me begin by stating the main threat posed by libel tourism is not 
just the clever exploitation of foreign courts' libel laws to win 
financial judgments against American authors. It's not even the risk 
that Americans are losing their First Amendment guarantee of freedom of 
speech (although that is quite troubling). The danger is that foreign 
individuals are operating a scheme to intimidate authors and publishers 
from even exercising that right. And it's actually scarier because, in 
many of these cases, the journalists are trying to write on topics of 
national and homeland security. Therefore it is imperative that 
Congress address the issue and pass legislation to stop this nefarious 
activity at once.
  The issue of ``libel tourism'' threatens not only Americans' First 
Amendment freedom of speech but also their ability to inform the 
general public about existential threats; namely, the identity of 
terrorists and their financial supporters. As the Ranking Member of the 
Committee on Homeland Security, it is my duty to oversee policies for 
protecting our nation from potential terrorist attacks--a charge I take 
very seriously. I receive regular classified briefings on dangerous 
plots to attack the United States so I know just how grave these 
threats are. We cannot allow foreigners the ability to muzzle Americans 
for speaking the truth about these dangers!
  Libel tourism is a recent phenomenon in which certain individuals 
attempt to obstruct the free expression rights of Americans (and the 
vital interest of the American people) by seeking out foreign 
jurisdictions (``forum shopping'') that do not provide the full extent 
of free-speech protection that is enshrined in our First Amendment. 
Some of these actions are intended not only to suppress the free speech 
rights of journalists and others but also to intimidate publishers and 
other organizations from disseminating or supporting their work.
  Unlike in the United States where the burden of proof is on the 
plaintiff to show that the publication was not only false but also 
malicious, in countries such as the United Kingdom it is actually the 
reverse. And some of these ``tourists'' claims of jurisdiction are 
tenuous at best. In many cases, not only are none of the individuals 
(author, litigant, or publisher) associated with the case living in the 
venue of jurisdiction, but the books aren't even published there. These 
``libel tourists'' stretch the law by claiming a handful of copies of 
the book purchased over the internet and delivered to an address in a 
foreign country gives them standing.

  Since the burden of proof is on the author in the United Kingdom, the 
author must then hire an attorney, travel to the foreign country, and 
defend herself or likely face a default judgment. Consequences include, 
but are not limited to, stiff fines, outrageous public apologies, the 
removal of books from bookstores and libraries, or even their 
destruction.
  We cannot change other countries' (libel) laws, nor would we want to. 
We must respect their laws, as they ought to respect ours. However, we 
cannot allow foreign citizens to exploit these courts to endanger 
Americans' First Amendment protected speech; especially, when the 
subject matter is of such grave importance as terrorism and those who 
finance it.
  Just to be clear, we're not talking about journalists who carelessly 
or maliciously slander an individual. In this case we're talking about 
authors who, after conducting exhaustive research and carefully 
sourcing their work, are providing us glimpses into a dark and 
secretive world. We ought to rely on a variety of sources for this 
information and we cannot allow foreign litigants or foreign courts to 
tell us what can be written or published in the United States. That is 
a dangerous path we do not want to follow.
  Some of the plaintiffs bringing such suits are intentionally and 
strategically refraining from filing their suits in the United States, 
even though the speech at issue was published in the United States, to 
avoid the First Amendment protections that Americans enjoy.
  But this issue is also very troubling for the authors, journalists, 
and even publishers who attempt to write on these subjects. Already we 
have seen examples of authors having difficulty getting their articles 
or books published because publishers fear of being sued overseas. Some 
companies have even gone as far as to pay large settlements at the mere 
threat of legal actions. So not only are authors being injured for the 
works they have previously written but they and their publishers are 
being intimidated from writing future articles on these important 
topics. The free expression and publication by journalists, academics, 
commentators, experts, and others of the information they uncover and 
develop through investigative research and study is essential to the 
formation of sound public policy and thus the security of Americans.
  In turn, the American people are suffering concrete and profound harm 
because they, their representatives, and other government policymakers 
rely on the free expression of information, ideas, and opinions 
developed by responsible journalists, academics, commentators, experts, 
and others for the formulation of sound public policy, including 
national security policy.
  Having said that, the United States respects the sovereign right of 
other countries to enact their own laws regarding speech, and seeks 
only to protect the First Amendment rights of Americans in connection 
with speech that occurs, in whole or part, in the United States.
  That is why last year I introduced the Free Speech Protection Act 
(H.R. 1304) to defend U.S. persons who are sued for defamation in 
foreign courts. This legislation would allow U.S. persons to bring a 
federal cause of action against any person bringing a foreign libel 
suit

[[Page H6773]]

if the writing did not constitute defamation under U.S. law. It would 
also bar enforcement of foreign libel judgments and provide other 
appropriate injunctive relief by U.S. Courts if a cause of action was 
established. H.R. 1304 would award damages to the U.S. person who 
brought the action in the amount of the foreign judgment, the costs 
related to the foreign lawsuit, and the harm caused due to the 
decreased opportunities to publish, conduct research, or generate 
funding. Furthermore, it would award treble damages if the person 
bringing the foreign lawsuit intentionally engaged in a scheme to 
suppress First Amendment rights. It would allow for expedited discovery 
if the court determines that the speech at issue in the foreign 
defamation action is protected by the First Amendment.
  Nothing in H.R. 1304 would limit the rights of foreign litigants who 
bring good faith defamation actions to prevail against journalists and 
others who have failed to adhere to standards of professionalism by 
publishing false information maliciously or recklessly. The Free Speech 
Protection Act does, however, attempt to discourage those foreign libel 
suits that aim to intimidate, threaten, and restrict the freedom of 
speech of Americans. I am proud to have worked closely with Senators 
Arlen Specter, Joe Lieberman, and Chuck Schumer who introduced 
companion legislation in the Senate.
  The King/Specter/Lieberman/Schumer legislation also has the backing 
of various organizations including the Association of American 
Publishers, College Art Association, Anti-Defamation League, American 
Jewish Congress, American Library Association, 9/11 Families for a 
Secure America, American Booksellers Foundation for Free Expression, 
and the American Civil Liberties Union. In addition, various columnists 
and editorial boards have written in support of our approach including 
Floyd Abrams, Andrew McCarthy, the New York Times, New York Post, and 
the Washington Times.
  The impetus for a federal law is the case of Dr. Rachel Ehrenfeld, a 
U.S. citizen and Director of the American Center for Democracy. Dr. 
Ehrenfeld's 2003 book, ``Funding Evil: How Terrorism is Financed and 
How to Stop it,'' which was published solely in the United States by a 
U.S. publisher, alleged that a Saudi Arabian subject and his family 
financially supported alQaeda in the years preceding the attacks of 
September 11, 2001. He sued Dr. Ehrenfeld for libel in England because 
under English law, it is not necessary for a libel plaintiff to prove 
falsity or actual malice as is required in the U.S. After the English 
court entered a judgment against Dr. Ehrenfeld, she sought to shield 
herself with a declaration from both federal and state courts that her 
book did not create liability under American law, but jurisdictional 
barriers prevented both the federal and New York State courts from 
acting. Reacting to this problem, the Governor of New York, on May 1, 
2008, signed into law the ``Libel Terrorism Protection Act'', commonly 
known as ``Rachel's Law.''
  As I said last year, I believe any libel tourism bill should include 
punitive measures to discourage these ridiculous lawsuits from being 
filed in the first place. It was my hope that during this new Congress 
we could work together to introduce a bill that would solve this 
problem once and for all, legislation which would not only ban the 
enforcement of these foreign libel judgments but would also create a 
federal cause of action allowing American authors and journalists to 
sue those foreign plaintiffs here in the United States. This should be 
the essential component of any libel tourism bill. The real issue here 
is not the judgment or even the libel case itself. Rather, it is the 
attempt by certain individuals to muzzle those who dare speak out about 
terrorism and the financiers of it. Lawyers are cleverly exploiting 
foreign libel laws not only to injure American authors and publishing 
companies, but more importantly to shut them up. And it is working. But 
we must stop it!

  In September, I supported and the House passed H.R. 6146, legislation 
sponsored by Representative Cohen, to prohibit U.S. Courts from 
enforcing these outrageous defamation suits. At the time, I stated that 
I believed that bill did not go far enough to combat the threat of 
libel tourism and that pertains to H.R. 2765 as well.
  Nevertheless, I will support H.R. 2765 because it prohibits U.S. 
(domestic) courts from enforcing these outrageous defamation suits. We 
must stand up to the terrorists and their financers, supporters, and 
sympathizers. However, this bill does not go far enough nor does it 
resolve the problem of ``libel tourism.'' Foreign litigants will still 
be allowed to file these libel suits overseas with no worry of being 
countersued here in the U.S. If this bill were to be signed into law, 
the litigants would never see a dime of the judgments they are awarded, 
but it's not money they are after in the first place. They want the 
publicity, an apology, and they want these books to disappear. Most of 
all they want to intimidate authors and publishers. And it's working!
  Finally, I will support H.R. 2765 because it is a first step in the 
right direction. H.R. 2765 is an important and necessary part of any 
``libel tourism'' bill. Unfortunately, it doesn't put an end to the 
problem and doesn't provide any deterrence from these suits being filed 
in the first place. I regret that we could not have come up with a more 
comprehensive bill on the House side but I pledge to work with our 
Senate sponsors to improve this legislation over in the other Chamber.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today to voice my 
support for House Resolution 2765, prohibiting recognition and 
enforcement of foreign defamation judgments and certain foreign 
judgments against the providers of interactive computer services, 
introduced by Representative Cohen, which articulates the sense of 
Congress regarding the United States commitment to freedom of speech. I 
would also like to thank Congressman Cohen for this important 
legislation, his leadership in bringing this legislation forth and for 
working together to see that the First Amendment to the Constitution is 
not just something we talk about, but something that is achieved. The 
heart of this bill lies in interactive computer services.
  Interactive computer services provide an opportunity for free 
enterprise to take place. ``I am convinced,'' asserts Richard Lugar 
``that the majority of American people do understand that we have a 
moral responsibility to foster the concepts of opportunity, free 
enterprise, the rule of law, and democracy. They understand that these 
values are the hope of the world''.


                                 TEXAS

  In my state of Texas there are a variety of small interactive foreign 
computer service enterprises that are struggling to be valued resources 
in their community, a community full of individuals that struggle with 
all the woes of technology and deserve not only local businesses for 
their convenience but also their relationship.
  Many of these businesses promise hope for many citizens unfamiliar 
with computers and technology by advocating that they do not treat 
their customers like another invoice number or item on a list of things 
to do.


                               CONCLUSION

  I urge my colleagues to remember that certain companies that fall 
within the category of ``interactive computer service'' providers are 
extremely beneficial to the communities they serve. I do not advocate 
that all judgments against these providers are inappropriate, but we 
must remember the benefits of such a business and its legitimate 
concurrence with the First Amendment.
  If we do not support the improvement of the technological community 
as it is then we should not support this bill. However, if we are for 
access to quality computer services, if we are for greater 
understanding of the communities we serve, if we are for fair 
enforcement of judgments against and for hardworking American citizens, 
then we must give our full support to this bill.
  I urge my colleagues to join me in support of Resolution 2765, which 
will work to effectively help Americans prepare for the future with the 
appropriate resources. This is just one more step to a more responsible 
society.
  Mr. Speaker, I vote in support of House Resolution 2765.
  Mr. COHEN. I yield the remainder my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Tennessee (Mr. Cohen) that the House suspend the rules 
and pass the bill, H.R. 2765, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________