Monday, January 12, 2009

ET - The Perennial - and Libel Tourism

ET - the Perennial - is calling once again.

There’s a recent op-ed piece in the Wall Street Journal from a couple of American lawyers calling for a tough law that would impose statutory double damages for what they view as “sham” litigation libel awards in the UK. Specifically, they suggest “statutory damages” (sounds familiar?) "that amount to double any foreign judgment, plus court costs and attorneys' fees (in both proceedings) for good measure.”

There is admittedly a problem with “libel tourism” in the UK - and there has been as well in Canada for that matter. However, escalation is not the answer.

As a Canadian IP lawyer, I see our own courts starting to move more and more towards extraterritorial assertion (“ET”) of jurisdiction. The internet has invited this because information flows so easily over borders.

But what goes around can come around here - and the results will frequently not be either pretty or predictable. I think that there is great danger in escalating the issue with a blatantly and powerfully ET statute such as the authors suggest. What is probably needed is a treaty dealing at minimum with defamation law - but perhaps also with IP and even more generally. Personally, I think that the Americans have it largely right with defamation and the NY Times v. Sullivan rule - but one shouldn’t assume that US defamation doctrines will be embraced abroad. And I doubt that Americans would be sanguine about adopting the inevitably related European doctrines on the protection of privacy.

And BTW, those in glass houses should be careful about throwing stones. Just one example - the USA recently extradited an Australian on criminal copyright infringement charges - courtesy of the controversial cooperation of the former John Howard regime in Australia. This was very extraordinary if not unique.


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