Law Times

Page 12 June 2, 2014 • Law Times www.lawtimesnews.com Canadians bearing brunt of U.S. libel tourism law By michael mcKiernan For Law Times anadians have taken the brunt of a U.S. law designed to prevent libel tourists enforcing British judgments in the coun- try, according to a Toronto defa- mation lawyer. e U.S. Securing the Protec- tion of our Enduring and Estab- lished Constitutional Heritage Act was the subject of discussion during a recent session on Inter- net abuses at the second annual Ontario-New York legal summit in Toronto. Congress passed the act unanimously in 2010 following a high-profile defamation case in- volving American academic Ra- chel Ehrenfeld and Saudi busi- nessman Khalid bin Mahfouz. Mahfouz was able to success- fully sue Ehrenfeld in England in 2005 over allegations made against him in her book on ter- rorist financing despite being neither a citizen nor a resident of Britain. Ehrenfeld didn't par- ticipate in the English case, but a default judgment ordered her to pay about $60,000 to Mahfouz and his family. e U.S. act directs judges to refuse enforcement of foreign defamation judgments unless the foreign court's decision "gave at least as much protection for freedom of speech and press as would be provided" by the First Amendment to the U.S. Consti- tution. Americans can also apply for declaratory relief establish- ing that a foreign defamation judgment is unenforceable in their home country. However, Britain has since reformed its libel regime with its 2013 Defamation Act and most of the cases applying the U.S. law have involved Canadian plaintiffs attempting to enforce Canadian judgments in various U.S. states. "Our standards of free speech are sorely lacking, according to the Americans," said Antonin Pribetic, a Toronto litigator with Himelfarb Proszanski LLP, at the March 28 event. e first case to test the leg- islation came in 2011 aer On- tario Superior Court Justice Paul Perell granted a Canadian cor- poration, the Mina Mar Group, a $75,000 judgment in relation to damaging statements on the markets news web site Investor- sHub.com. InvestorsHub.com applied for a declaration that the Cana- dian judgment wasn't enforce- able in the United States. A Flor- ida judge obliged aer finding Canadian law doesn't provide as much protection as the U.S. First Amendment and it lacks protec- tions for online speech provided in U.S. law. In a second case from that year, a Filipino-Canadian won a $37,500 judgment in Ontario against a Missouri-based relative over fraud claims in her memoir dating back to the time they both lived in the Philippines. e Ca- nadian plaintiff was initially suc- cessful in an attempt to enforce the judgment in Missouri but lost on appeal over findings the lower court had failed to con- sider the Securing the Protection of our Enduring and Established Constitutional Heritage Act. An ongoing Nova Scotia case involving much larger amounts pits the owners of a luxury Nova Scotia resort, Trout Point Lodge, against a Mississippi blogger, Douglas Handshoe. In 2012, a Nova Scotia judge awarded $425,000 in damages against Handshoe for wrongly linking the resort to a political scandal in Louisiana. However, a U.S. appeals court refused to enforce the judgment. In February, in a related case, another Nova Scotia judge awarded a further $245,000 in defamation dam- ages against Handshoe plus an- other $180,000 for copyright infringements to the Trout Point Lodge parties. Pribetic said he finds the characterization of Canada's free-speech protections as infe- rior to be "sardonic" because U.S. defendants get the chance to ex- ercise procedural fairness at the beginning of a Canadian action. "I would argue, hopefully ro- bustly in support of the Canadi- an standard, that we're not a libel tourism jurisdiction. e reason is that defendants can raise juris- diction arguments at the outset and bring motions for forum non conveniens," he said. Jon-David Giacomelli, a part- ner at Cambridge LLP where he's chairman of the firm's cross- border litigation practice group, told the audience he saw the U.S. law as "un-American in a way" in its "blatant" offensiveness to the principle of comity. at was particularly ironic, he said, considering the Su- preme Court of Canada has borrowed heavily from its U.S. counterpart in its own decisions on comity related to the enforce- ment of foreign judgments over the last two decades. Laura Little, a professor at Temple University's Beasley School of Law, jokingly agreed the act was "un-American in the sense that America embraces co- mity, but I think it's very Ameri- can in the sense that America embraces American exception- alism." She added the issue is a "little bit more complicated than first meets the eye." To the extent it "shoves the First Amendment down your throat" by forcing other coun- tries' courts to accept a U.S. stan- dard, Little said she finds the U.S. act "offensive and arguably wrong." However, there's something to be said for setting a less restric- tive bar on freedom of expres- sion when it comes to the multi- jurisdictional world of Internet speech, according to Little. "If the U.S. is out of hand by saying we're the least restrictive approach and you have to com- ply with it, then what's going to happen is the most restrictive na- tion gets to control what's on the Internet," said Little. "e prudent speaker that wants to avoid trouble is going to comply with the most restrictive laws." LT FOCUS Innovatio_LT_June2_14.indd 1 14-05-29 1:04 PM C 'I would argue, hopefully robustly in support of the Canadian standard, that we're not a libel tourism jurisdiction,' says Antonin Pribetic.

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