Wednesday, June 09, 2010
Is Libel Dead? (Not So Fast.)
I recently cut twenty pages from the defamation chapter of my Mass Media Law casebook. Maybe I should have cut more. A story by John Koblin in The New York Observer reports that the number of libel cases against media defendants has dropped so dramatically that the Media Law Resource Center is going to report on them on a bi-annual rather than an annual basis. George Freeman, VP and assistant general counsel for the New York Times Company reports that there currently "are no active domestic libel suits" against any publications owned by the company. In the past, he said, the norm was ten to fifteen libel cases per year.
The story in the Observer is titled "The End of Libel?," and it suggests a number of theories to explain the drop in the number of libel cases. For example, there is a suggestion that plaintiffs are finally beginning to understand the legal obstacles that make recovery for libel unlikely. There is a suggestion that there are fewer libel cases because there is less investigative journalism. There is a suggestion that there are fewer libel cases because "the Web has allowed for quick corrections, heading lawsuits off before they are even filed." There is even a suggestion that there is so much information out there that it makes any one negative statement less damaging. Finally, there is a suggestion that media are more willing to "correct" a story upon receipt of an angry phone call. The article concludes that regardless of the cause "when it comes to the old-fashioned libel case, lawyers and subjects might finally be calling it a day."
Not so fast. We shouldn't be too hasty in declaring "the end of libel." While plaintiffs may be bringing fewer suits against the mainstream media, I would like to see accurate statistics about whether there has been a reduction in the number of libel suits brought against what once would have been called "non-media" defendants, that is, defendants who aren't part of the institutional media. I don't have empirical data to back up this assumption, but it certainly doesn't seem like these suits are on the decline.
Even for mainstream media, the threat of foreign libel suits seems to be growing as the threat of domestic suits declines. Although the New York Times Company isn't facing any domestic libel suits currently, it is facing five active libel cases abroad. Perhaps, then, sophisticated libel plaintiffs suing large media corporations are becoming libel tourists, bringing their suits in England or Germany or some other jurisdiction that has weaker legal protections for journalists than we do here in the U.S. [In this regard, it is worth noting that several U.S. states, including New York, Florida, and Illinois, have adopted legislation to protect U.S. citizens from "libel tourism." New York's Libel Terrorism Protection Act, N.Y. CP.L.R. Sec. 5304 provides that foreign judgments will not be recognized if "rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law." The Act also provides that "defamation judgments obtained in a jurisdiction outside the United States" will not be recognized unless a New York court determines that the defamation law applied provides at least as much protection for free speech and press as would be accorded by New York courts. Finally, the Act modifies another provision of New York law (CPLR Sec. 302) to give New York courts 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 or is a person or entity amenable to jurisdiction in New York who has assets in New York or may have to take actions in New York to comply with the judgment." Florida's new law is identical to New York's. See Fla. Stat. Sec. 55.605 (2) (h) (2009), and Illinois' is similar. 735 Ill. Comp. Stat. 5/12-621(b)(7) (2009).]
And thanks to Cory Andrews for tipping me off to the Observer story!
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And don't forget about the Free Speech Protection Act, pending but going nowhere in Congress, which would do the same thing for all federal courts. By the way, there is a good argument that the jurisdictional provisions are invalid.
Posted by: Howard Wasserman | Jun 9, 2010 8:31:30 PM