[House Report 111-154]
[From the U.S. Government Publishing Office]
111th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 111-154
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RECOGNITION OF FOREIGN DEFAMATION JUDGMENTS
_______
June 15, 2009.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2765]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 9
Constitutional Authority Statement............................... 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 10
Purpose and Summary
H.R. 2765 is intended to dissuade potential defamation
plaintiffs from circumventing First Amendment protections by
filing suit in foreign jurisdictions that lack similar
protections. Specifically, the bill amends title 28 of the
United States Code to add provisions to prevent U.S. courts
from recognizing or enforcing a foreign defamation judgment
when (1) such judgment is inconsistent with the First
Amendment; (2) enforcement would be inconsistent with Section
230 of the Communications Act of 1934, providing immunity for
interactive computer services from suits based on content
hosted by such services; or (3) the foreign court's assertion
of personal jurisdiction over the defamation defendant is
inconsistent with the due process standards of the United
States Constitution. H.R. 2765 also contains a fee-shifting
provision that allows a court to award a reasonable attorney's
fee to a party that successfully resists recognition or
enforcement of a foreign defamation judgment based on one of
the grounds enumerated in the bill.
Background and Need for the Legislation
DIFFERENCES IN U.S. AND BRITISH LAW GIVING RISE TO ``LIBEL TOURISM''
The First Amendment to the Constitution limits the
liability of authors and publishers under state defamation law
by prohibiting injunctions against defamatory statements in
nearly all instances,\1\ and by restricting the circumstances
under which a plaintiff may recover damages for defamation. The
First Amendment limits liability in three key respects. First,
it renders non-actionable a defamatory statement of opinion
that ``does not contain a provably false factual
connotation.''\2\ Second, it requires the plaintiff to prove
the falsity of a defamatory statement.\3\ Third, it requires
the plaintiff to prove fault, with clear and convincing
evidence, by showing actual malice or negligence, depending on
the subject matter of the statement and whether the defendant
is a public figure.\4\
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\1\See New York Times Co. v. U.S., 403 U.S. 713 (1971). See also
Ollman v. Evans, 750 F.2d 970, 995 (1984) (Bork, J., concurring).
\2\Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990).
\3\Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). One
qualification is necessary: The Supreme Court has reserved decision on
whether the plaintiff must prove falsity if the he or she is a private
(rather than a public) figure and the statement concerns a private
matter. See id. at 775. That narrow category of cases is not likely to
be implicated by H.R. 2765; but if it ever were to be, the courts would
be able to address the question.
\4\If the statement concerns a public official or public figure,
the plaintiff must prove that the defendant made it with ``actual
malice''--that is, ``with knowledge that it was false or with reckless
disregard of whether it was false or not,'' New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964), and must do so with ``clear and
convincing proof.'' Gertz v. Robert Welch, Inc., 418 U.S. 323, 342
(1974). If the statement concerns a private figure, the plaintiff must
prove at least negligence. Id. at 347; see also Hepps, 475 U.S. at 768.
Even then, though, proof of actual malice is required to recover
punitive damages or presumed compensatory damages if the statement
concerns a public matter. Gertz, 418 U.S. at 348-350; see also Hepps,
475 U.S. at 774.
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These and related First Amendment doctrines reflect ``a
profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-
open.''\5\ With increasing frequency, however, the subjects of
publications disseminated primarily in the United States have
sought to circumvent First Amendment protections by bringing,
or threatening to bring, defamation suits against American
authors and publishers in Britain. This type of forum shopping
has come to be known as ``libel tourism.''\6\
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\5\New York Times Co., 376 U.S. at 270.
\6\See, e.g., Libel Tourism: Hearing Before the Subcomm. on
Commercial and Administrative Law of the H. Comm. on the Judiciary,
111th Cong. (2009) [hereinafter ``Libel Tourism Hearing''] (statements
and testimony of Bruce D. Brown and Laura R. Handman); Anna C. Henning
and Vivian S. Chu, ``Libel Tourism'': Background and Legal Issues, CRS
Rpt. for Congress, R40497 (2009); Sarah Staveley-O'Carroll, N.Y. U. J.
Law & Liberty (forthcoming 2009).
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Britain's appeal to libel tourists stems from its
plaintiff-friendly defamation law. In contrast to American law,
British law imposes on the defendant the burden of proving the
truth of a defamatory statement; renders opinions actionable
unless the defendant can successfully invoke the ``fair comment
exception'' for opinions drawn from facts and made without
``actual malice.'' In addition, as far as the record before the
Committee suggests, British law permits at least some
injunctions against speech that would be condemned as an
unconstitutional prior restraint if issued in the United
States.\7\ These and other features of British defamation law
have drawn criticism from the United Nations Human Rights
Committee,\8\ and even from some members of the British
Parliament.\9\
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\7\Libel Tourism Hearing (statement of Laura R. Handman).
\8\U.N. Human Rights Comm., Int'l Covenant on Civil and Political
Rights, Consideration of Reports by States Parties Under Article 40 of
the Covenant, Concluding Observations of the Comm., United Kingdom of
Great Britain and Northern Ireland, 25, U.N. Doc. CCPR/C/GBR/CO/6
(July 30, 2008).
\9\See Writ Large: Are British courts stifling free speech around
the world?, Economist, Jan. 8, 2009.
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British procedural law also facilitates libel tourism,
especially in its approach to the exercise of personal
jurisdiction over defendants. Whereas the due process clauses
of the Constitution allow a court in the United States to
exercise personal jurisdiction over a defamation defendant only
if his statement was ``expressly aimed at'' the jurisdiction in
which the court sits,\10\ British law allows a court to
exercise personal jurisdiction over a libel defendant if his
statement, wherever it was aimed, caused ``real or
substantial'' harm or injury to reputation in Britain.\11\ The
``real and substantial'' requirement has done seemingly little
to mitigate British courts' liberal approach to personal
jurisdiction. British courts have been quick to exercise
jurisdiction over American defendants whose book, magazine, or
newspaper, though principally or even exclusively distributed
in the United States, reaches even a few readers in Britain.
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\10\Calder v. Jones, 465 U.S. 783 (1984); see also Libel Tourism
Hearing (responses to questions for record of Bruce D. Brown, Partner,
Baker & Hostetler LLP, and Laura R. Handman, Partner, Davis Wright
Tremaine LLP).
\11\Libel Tourism Hearing (responses to questions for record of
Bruce D. Brown) (quoting Berezovsky v. Michaels, [2000] 2 All ER 98,
[2000] WLR 1004, [2000] All ER (D) 643 (House of Lords, May 11, 2000)).
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Similarly, British courts have liberally exercised
jurisdiction over American defendants whose Internet site,
though established in the United States, is visited by a person
in Britain. Consequently, concerns have been raised that the
Internet has rendered American authors and publishers
especially vulnerable to libel suits in Britain.\12\ As one
commentator has described the situation, ``in the Internet age
the British libel laws can bite you, no matter where you
live.''\13\
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\12\Id. (testimony and statements of Bruce D. Brown and Laura R.
Handman).
\13\Alan Rusbridger, A Chill on ``The Guardian,'' N.Y. Rev. Books,
Jan. 15, 2009.
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A well known example of a libel suit brought in British
court against an American author or publisher is the suit
brought by Saudi billionaire Khalid Bin Mahfouz against Dr.
Rachel Ehrenfeld, a citizen of the United States. In her 2003
book Funding Evil: How Terrorism is Financed and How to Stop
It, Dr. Ehrenfeld accused Bin Mahfouz of financing
international terrorism. The book was published and circulated
almost exclusively in the United States. A mere 23 copies
reached Britain as a result of Internet sales, and only the
first chapter was accessible online.
The British court, however, found this sufficient contact
to support personal jurisdiction over Dr. Ehrenfeld. Dr.
Ehrenfeld refused to defend against the suit, and the court
entered a default judgment against her. The court awarded Bin
Mahfouz substantial damages, and enjoined publication of the
allegedly libelous statements in Britain.\14\ There appears to
be no question that the suit could not have been maintained in
the United States consistent with the First Amendment.
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\14\Libel Tourism Hearing (statement and testimony of Rachel
Ehrenfeld, Director, American Center for Democracy).
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Of more concern, perhaps, than the admittedly small number
of libel-tourist suits like Bin Mahfouz's is the frequency with
which British lawyers have threatened American authors and
publishers with pre-publication libel suits in Britain
involving forthcoming publications in the United States. Two
prominent media lawyers who appeared before the Subcommittee on
Commercial and Administrative Law testified that such threats
have become increasingly commonplace. One of the lawyers
testified that ``[v]irtually every demand letter we receive
these days from a U.S. lawyer is accompanied by one from a
British solicitor.''\15\
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\15\Id. (testimony of Laura R. Handman).
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The author or publisher who receives such a threat faces a
dilemma. He or she can either (1) publish the material, and
risk an expensive libel suit and a large libel judgment that
could not be entered in the United States because it is
inconsistent with the First Amendment or (2) relinquish his or
her First Amendment rights. All too often, authors and
publishers choose the latter option. This self-censorship not
only threatens First Amendment rights; it also deprives
Americans of important information and insights on matters of
national concern.\16\
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\16\See, e.g., id. (statements of Bruce D. Brown and Laura R.
Handman).
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NEED FOR A UNIFORM STANDARD CONCERNING ENFORCEMENT OF FOREIGN
DEFAMATION JUDGMENTS
While some disagreement has arisen as to the appropriate
response to libel tourism, nearly all serious defenders of the
First Amendment agree on one essential point; American authors
and publishers should be able to write and publish for an
American audience on matters of public concern secure in the
knowledge that no foreign defamation judgment inconsistent with
the First Amendment can be enforceable against them or their
assets in a court of the United States.\17\
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\17\Europeans do not enjoy this security. British libel judgments
``are now easily enforceable against assets throughout European Union
(except for Denmark).'' Id. (responses to questions for record of Bruce
D. Brown).
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The enforcement of foreign judgments for defamation in the
United States, like the enforcement of any foreign judgment, is
currently governed by State law.\18\ Every State's law
governing the enforcement of foreign judgments denies
recognition or enforcement of foreign judgments that contravene
the State's public policy under what is often called the
``public policy exception.'' Courts have interpreted a few
States' public policy exception to bar the enforcement of
foreign judgments inconsistent with the First Amendment,\19\
and two States have recently enacted statutes that codify that
interpretation.\20\ However, the absence, in most States, of
case law or statutes to that effect leaves open the disturbing
possibility that a foreign judgment inconsistent with the First
Amendment could be enforced.\21\ A Federal rule that protects
the First Amendment rights of American authors and publishers--
without regard to the particular State in which they happen to
be located--is therefore needed.\22\
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\18\That was not always so; the enforcement of foreign judgments
was, until the early twentieth century, governed by Federal law. See,
e.g., American Law Institute, Recognition and Enforcement of Foreign
Judgments: Analysis and Proposed Federal Statute 1-3 (2006).
\19\See, e.g., Telnikoff v. Matusevich, 347 Md. 561, 702 A.2d 230
(1997). See also, e.g., Yahoo!, Inc. v. La Ligue Contre le Racisme et
L'Anti-semitisme, 433 F.3d 1199 (9th Cir.), cert. denied, 126 S. Ct.
2332 (2006). For other examples, see, Sarah Staveley-O'Carroll, Libel
Tourism Laws: Spoiling the Holiday and Saving the First Amendment?,
N.Y.U. J. Law & Liberty (forthcoming 2009).
\20\The two States are Illinois and New York. See 735 ILCS 5/12-
621(b)(7) (Illinois) (providing that an Illinois court ``need not
[recognize]'' a foreign judgment for defamation unless the court
``first determines that the defamation law applied in the foreign
jurisdiction provides at least as much protection for freedom of speech
and freedom of the press as provided by both the United States and
Illinois Constitutions''); McKinney's N.Y. CPLR Sec. 5304(b)(8) (New
York) (prohibiting a court from enforcing a foreign defamation judgment
unless the foreign forum provides ``at least as much protection for
freedom of speech and press'' as does the First Amendment).
\21\See, e.g., Libel Tourism Hearing (responses to questions for
the record of Linda Silberman); see also American Law Institute, supra
note 18, at 80.
\22\See, e.g., Editorial, Libel Tourism, N.Y. Times, May 25, 2009
(``Congress needs to pass a law that makes clear that no American court
will enforce libel judgments from countries that provide less
protection for the written word.''). See also, e.g., Michael J. Broyde
and Deborah E. Lipstadt, Editorial, Home Court Advantage, N.Y. Times,
Oct. 11, 2007.
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In the 110th Congress, the House of Representatives
addressed this need by passing, under suspension of the rules,
H.R. 6146, sponsored by Representative Steve Cohen of
Tennessee. The bill would have amended title 28 of the United
States Code to prohibit a court within the United States ``from
recognizing or enforcing a foreign judgment for defamation that
is based upon a publication concerning a public figure or a
matter of public concern, unless the domestic court determines
that the judgment is consistent with the First Amendment to the
Constitution.''\23\ First Amendment advocates applauded the
House passage of H.R. 6146.\24\
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\23\H.R. 6146, 110th Cong. Sec. 2.
\24\See, e.g., Libel Tourism Hearing (statement of the American
Civil Liberties Union); Editorial, Bringing an End to ``Libel
Tourism,'' N.Y. Times, Sept. 29, 2008.
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H.R. 2765 builds on H.R. 6146. Like its predecessor, H.R.
2765 would prohibit a Federal or State court within the United
States from enforcing a foreign defamation judgment
inconsistent with the First Amendment.\25\ In addition, H.R.
2765 deters libel tourism in three new respects.
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\25\H.R. 2765, 111th Cong. Sec. 1(a).
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First, H.R.2765 would prohibit a court within the United
States from enforcing a defamation judgment if the foreign
court's exercise of jurisdiction over the defendant failed to
comport with the fundamental due process requirements imposed
on courts within the United States under the Fifth and
Fourteenth Amendments.\26\
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\26\Id.
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Second, the bill would prohibit a court within the United
States from enforcing a foreign judgment for defamation
inconsistent with section 230 of the Communications Decency
Act.\27\ This provision shields the providers of an
``interactive computer service,'' such as blogs, from liability
under defamation laws for the content of postings on their
sites.\28\
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\27\47 U.S.C. Sec. 230 (2007).
\28\H.R. 2765, 111th Cong. Sec. 1(a). This provision was included
in response to a submission from Public Citizen which cited instances
in which the providers of interactive computer services have been
threatened with libel tourism suits. Libel Tourism Hearing (statement
of Public Citizen).
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Third, the bill would allow a court within the United
States to award attorneys' fees to a defendant who successfully
resists the enforcement of a foreign judgment under one of the
above-specified grounds set forth in the bill.\29\ This
provision, modeled on the fee-shifting provision governing
civil rights actions,\30\ is intended to dissuade libel
tourists from subjecting American authors and publishers to the
burden and expense of having to defend against non-meritorious
enforcement actions--and to require that when they do subject
the authors and publishers to that undue burden and expense,
they compensate them for at least the resulting attorney's
fees.
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\29\See H.R. 2765, 111th Cong. Sec. 1(a).
\30\42 U.S.C. Sec. 1988(b) (2007).
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Some lawmakers and commentators, while supportive of H.R.
2765, have urged Congress to take a more aggressive approach to
the problem of libel tourism. The starting point for such
proposals is New York's recently enacted Libel Terrorism
Prevention Act, which expands the ``long-arm'' jurisdictional
provision in New York's code of civil procedure to facilitate
the maintenance of a counter-suit--for declaratory relief in
particular\31\--by the defendant against the plaintiff in the
foreign libel action.\32\ The New York law provides, in
particular, that New York courts ``shall have personal
jurisdiction over any person who obtains a judgment in a
defamation proceeding outside the United States against any
person who is a resident of New York . . . who has assets in
New York or may have to take actions in New York to comply with
the judgment. . . .''\33\
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\31\See McKinney's CPLR Sec. 302(d).
\32\The statute was passed in response to a decision of New York's
highest court holding that New York could not exercise personal
jurisdiction over Bin Mahfouz in a counter-suit brought against him by
Rachel Ehrenfeld arising from the British libel judgment he obtained
against her. Ehrenfeld v. Bin Mahfouz, 881 N.E.2d 830 (N.Y. 2007).
\33\Id.
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The Committee has two concerns with this model of counter-
suits against libel tourists. The first is that many such suits
would require a court within the United States to exercise
personal jurisdiction over a foreign libel-tourism plaintiff
who lacks sufficient contacts with the United States to permit
the exercise of personal jurisdiction consistent with due
process.\34\ The second is that such counter-suits, depending
on the nature of the relief sought, may represent too great an
intrusion into the legal systems of other countries. Some
countries might even respond in kind by authorizing suits to
interfere with counter-suits in defamation cases or, more
broadly, by authorizing suits to counter other types of suits
in the United States to which they object.\35\ Principles of
international comity counsel moderation.\36\
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\34\See, e.g., Libel Tourism Hearing (written statement of Linda
Silberman; response to questions for record of Linda Silberman); David
B. Rivkin Jr. & Bruce D. Brown, ``Libel Tourism'' Threatens Free
Speech, Wall St. J., Jan. 10, 2009.
\35\See id. (testimony and statement and testimony of Linda
Silberman).
\36\See id. (testimony of Linda Silberman).
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In reaching this conclusion, the Committee is mindful that
British libel law has recently become more protective of free
speech. Last year, the House of Lords issued a decision that
put British law closer to the First Amendment by expanding the
scope of Britain's ``responsible journalism'' (or Reynolds)
privilege. The Reynolds privilege allows a journalist to defeat
a libel action by establishing that his or her inaccurate
statements about a subject were the product of ``responsible
journalism'' if, among other things, they concern matters of
public interest and the journalist acted ``fairly and
reasonably'' in obtaining the material on which the statements
were based.\37\ While the Lords' decision is not as speech-
protective as New York Times v. Sullivan,\38\ it may signal a
trend toward greater protection for the free-speech values
embodied in the First Amendment.\39\
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\37\Jameel v. Wall St. J. Europe S.P.R.L. [2006] UKHL 44, [2007] 1
A.C. 359 (appeal taken from Britain) (H.L.).
\38\See, e.g., Libel Tourism Hearing (statement of Bruce D. Brown).
\39\See, e.g., Libel Tourism Hearing (responses to questions for
record of Bruce D. Brown and Laura R. Handman). See also Kyu Ho Youm,
Liberalizing British Defamation Law: A Case of Importing the First
Amendment?, 13 Comm. L. & Pol'y, 415, 417 (2008).
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Finally, the Committee notes that it was recently briefed
by a delegation from the Culture, Media and Sport Committee of
the House of Commons. As confirmed in a follow-up letter, that
committee of the House of Commons informed this Committee that
it is currently undertaking an inquiry into the problem of
libel tourism. A report of the inquiry is expected later this
year.\40\ The Committee is especially reluctant to recommend
that the House authorize more aggressive measures to address
libel tourism until it reviews the report's findings and
recommendations.
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\40\See Libel Tourism Hearing (letter from Hon. John Whittingdale,
Chairman, Culture, Media and Sport Comm., House of Commons, to Hon.
Steve Cohen, Chairman, and Trent Franks, Ranking Member, Subcomm. on
Commercial and Administrative Law, dated April 20, 2009).
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Hearings
No legislative hearing was held on H.R. 2765. On February
12, 2009, the Committee's Subcommittee on Commercial and
Administrative Law held an oversight hearing on the problem of
libel tourism and possible legislative alternatives for
addressing it. Testimony was received from Bruce D. Brown, a
partner at the law firm of Baker & Hostetler LLP; Rachel
Ehrenfeld, Director of the American Center for Democracy; Laura
R. Handman, a partner at the law firm of Davis Wright &
Tremaine; and Linda J. Silberman, the Martin Lipton Professor
of Law at New York University School of Law.
Committee Consideration
On June 10, 2009, the Committee met in open session and
ordered the bill H.R. 2765 favorably reported without
amendment, by a voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 2765.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2765, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 12, 2009.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2765, a bill 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.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres,
who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 2765--A bill 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.
H.R. 2765 would prohibit U.S. district and State courts
from enforcing foreign defamation judgments that are
inconsistent with Constitutional protections and certain
telecommunications laws. In general, foreign courts do not have
jurisdiction over the United States, and U.S. courts would not
recognize a foreign judgment against the United States. (Under
the Federal Tort Claims Act, the Federal Government waived its
sovereign immunity and consented to being sued in Federal
courts only in particular cases.) Therefore, CBO estimates that
H.R. 2765 would have no significant effect on the Federal
budget.
H.R. 2765 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) because it would
preempt State laws related to foreign judgments. CBO estimates
that State courts would incur no significant costs to comply
with the preemption; therefore the costs of the mandate would
not exceed the annual threshold established in UMRA for
intergovernmental mandates ($69 million in 2009, adjusted for
inflation).
The bill also would impose private-sector mandates as
defined in UMRA on individuals seeking to have certain foreign
defamation judgments enforced in the United States. New
requirements on those individuals would limit an existing right
to recover damages. The direct cost of the mandate would be the
net value of forgone awards and settlements in such claims.
Based on information about foreign defamation cases, CBO
expects that the cost of the mandate would fall below the
annual threshold established in UMRA for private-sector
mandates ($139 million in 2009, adjusted annually for
inflation).
The CBO staff contact for this estimate is Leigh Angres.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2765 is designed to preclude the recognition or enforcement (in
Federal or State court) of a foreign defamation judgment that
is inconsistent with either the First Amendment or Section 230
of the Communications Act of 1934, as amended, 47 U.S.C.
Sec. 230, or that was entered by a foreign court whose exercise
of personal jurisdiction over the defendant failed to comport
with the requirements's set forth in the due process clauses of
the Fifth and Fourteenth Amendments.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article I, Section 8, of the Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2765 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Section 1(a) of the bill amends part VI of title
28, United States Code by adding new Sections 4101, 4102, and
4103 as follows:
New section 4101 contains definitions for ``domestic
court,'' ``foreign court,'' ``foreign judgment,'' and
``State.'' ``Domestic court'' means a Federal or State court.
``Foreign court'' means a court or other tribunal of a foreign
country. ``Foreign judgment'' means ``a final judgment rendered
by a foreign court.'' ``State'' means ``the several States, the
District of Columbia, and any commonwealth, territory, or
possession of the United States.''
New section 4102(a) prohibits a domestic court from
recognizing or enforcing a foreign defamation judgment if the
party resisting recognition or enforcement of the foreign
judgment claims that the foreign judgment is inconsistent with
the First Amendment, unless the domestic court finds that the
foreign judgment is consistent with the First Amendment. The
party seeking enforcement bears the burden of proving that the
foreign judgment is consistent with the First Amendment.
New section 4102(b) prohibits a domestic court from
recognizing or enforcing a foreign defamation judgment if the
party resisting recognition or enforcement establishes that the
foreign court's exercise of personal jurisdiction over such
party does not comport with the U.S. Constitution's due process
requirements.
New section 4102(c) prohibits a domestic court from
recognizing or enforcing a foreign defamation judgment against
the provider of an interactive computer service, as defined in
section 230 of the Communications Act of 1934, if the party
resisting recognition or enforcement of the foreign judgment
claims that the foreign judgment is inconsistent with section
230. The party seeking enforcement bears the burden of proving
that the foreign judgment is consistent with section 230.
New section 4102(d) clarifies that an appearance by a party
in a foreign court to defend against a foreign defamation suit
on whatever grounds does not deprive that party of the right to
oppose recognition or enforcement of a foreign defamation
judgment in the U.S. on the grounds outlined in new sections
4102(a)-(c).
New section 4103 is a fee-shifting provision that allows a
court to award the party resisting recognition or enforcement
of a foreign defamation judgment a reasonable attorney's fee if
that party prevails on a ground specified in new Sections
4102(a)-(c).
Section 1(b) of the bill makes a conforming clerical
amendment to part VI of title 28.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
TITLE 28, UNITED STATES CODE
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PART VI--PARTICULAR PROCEEDINGS
Chap. Sec.
Declaratory Judgments.........................................2201
* * * * * * *
4101.oreign judgments.................................................
* * * * * * *
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).