Report on the 10th International Media Law Forum (IMLF) with Prof. Hay

On June 13, 2018, the German-American Lawyers’ Association (DAJV) held its International Media Law Forum (IMLF) for the tenth time. Prof. Dr. Dres. h.c. Peter Hay, Professor Emeritus at Emory University School of Law in Atlanta, Georgia, spoke on the topic “The Export of American Values – Illustrated by the SPEECH Act and Other Developments in U.S. Law.” Once again, the event was organized by the Institute for Media and Communications Law (IMKR) at the University of Siegen, represented by Prof. Rösler.

1. Prof. Hay began his presentation with a brief explanation of the SPEECH Act, which was enacted under Barack Obama in 2010 to protect U.S. authors and journalists. The contrived acronym SPEECH (a so-called backronym) stands for the protection of free speech, which is the law’s stated purpose, but it obscures the very broad scope of application, which is only made clear by the full title: Securing the Protection of our Enduring and Established Constitutional Heritage Act. The SPEECH Act expressly denies recognition and enforceability in the United States to civil defamation judgments issued by foreign courts, unless the plaintiff can demonstrate and prove that the judgment is based on a standard of protection that is at least as high as that of the First Amendment to the U.S. Constitution, which protects, among other things, freedom of speech and freedom of the press.

Prof. Hay began by discussing the background of the SPEECH Act. For one thing, the law governing recognition in defamation cases was intended to be harmonized, as it had varied significantly among the individual states until 2010. After all, civil law, civil procedure, and conflict of laws are fundamentally matters for the 50 states. As early as 1997, a court in Maryland had ruled against recognizing an English defamation judgment, citing the “ordre public” exception (Telnikoff v. Matusevitch, 702 A.2d 230 (Md. 1997)). Other state courts have occasionally followed suit, and in some states, even stricter recognition laws have been enacted. The SPEECH Act then effectively adopted the Maryland decision and elevated it to nationwide law.

On the other hand, the SPEECH Act was prompted by the significant difference between the United States and other common law jurisdictions in their assessment of the fundamental right to freedom of speech. In the United Kingdom, for example, the rule derived from common law still applies today: it is not the plaintiff in a defamation case who must prove the falsity of the defendant’s statement, but rather the defendant who must prove the truth of his or her statement. This reversal of the burden of proof to the defendant’s detriment reflects the high importance placed on the right to privacy in the United Kingdom. In U.S. law, by contrast, the protection of freedom of speech and freedom of the press extends very far, according to a 1964 Supreme Court decision (New York Times v. Sullivan, 376 U.S. 254): As long as no malicious intent (malice) can be proven against the author, there are virtually no limits on his reporting about “public figures.”

Due to these differences in substantive law, so-called “libel tourism” has developed in the course of the information technology revolution, which has led to an increase in the global dissemination of press articles via the Internet: Plaintiffs not residing in England who felt defamed by the content of an article that had (also) been accessed there sued the authors in England and regularly prevailed in those cases. The situation was similar in other common law jurisdictions, such as Canada.

2. According to Prof. Hay, the legislative intent of the SPEECH Act is clear: The law is unquestionably intended to extend the effect of the First Amendment to foreign proceedings and to prevent successful plaintiffs from enforcing in the U.S. defamation judgments they obtained there under protection standards that are (from a U.S. perspective) questionable. This protection – particularly for U.S. journalists – has not become obsolete even following a legislative amendment in England that restricts “libel tourism”: With the Defamation Act in 2013, the British legislature did indeed limit the jurisdiction of English courts over defamation claims against defendants who do not have their domicile in the EU. However, this did not alter the fundamental problem of the substantive reversal of the burden of proof.

According to Prof. Hay, the broader implications of the SPEECH Act are less clear: Although its scope of application is expressly limited to defamation judgments, recognition of such judgments may be denied not only on the grounds of a lack of protection for freedom of speech, but also on the grounds of a lack of due process as required under U.S. law. Could a U.S. court, therefore, refuse to recognize a foreign judgment – for example, simply because it was not rendered in a jury trial, as is required in the U.S. under federal and state constitutional law for civil defamation suits, among other cases? Such an interpretation may seem very broad at first glance, but it appears that the legislature’s intention was to expand the (already applicable) public policy (ordre public) exception in the area of defamation lawsuits or to replace it with stricter standards of review. To what extent, then, must a foreign judgment conform to a country’s own national values in order to be recognized? This question must and will be raised more frequently in the future. However, it is not currently possible to predict how the SPEECH Act will be applied by the courts in the future.

3. During the discussion, Prof. Rösler pointed to the practice of German courts of denying recognition under § 328(1) No. 4 of the Code of Civil Procedure (ZPO) to U.S. judgments awarding punitive damages (BGHZ 118, 312 = NJW 1992, 3096). Therefore, U.S. law might not be as far-fetched as it initially appears. However, due to the independent provision in the SPEECH Act, there is a risk of overemphasizing the concept of public policy. The discussion also addressed the potential restriction of freedom of speech through the regulation of fake news on social media. Prof. Hay referred in this regard to a recent decision in which a U.S. federal court ruled that blocking – i.e., excluding certain users from the President’s Twitter feed on the basis of critical comments – violates the First Amendment (Knight First Amendment Institute at Columbia University v. Trump, S.D. New York, F.Supp.3d, 2018 WL 2327290).

Further reading: Hay/Borchers/Symeonides/Whytock, Conflict of Laws, 6th ed. 2018, § 24.44, and Dinse/Rösler, Libel Tourism in US Conflict of Laws – Recognition and Enforcement of Foreign Defamation Judgments, IPRax 2011, 414.

Note: A detailed report on the event can be found in Haas, IPRax 2019, 178 (in German).