Other than following our CFO around with the metaphorical shovel (just kidding, Mr. Jones, just kidding), some of you may wonder what your legal counsel does in her office all day. (Actually, I often wonder that myself). Well, here’s a little matter that has been sucking an inordinate amount of time out of my day – SoftLayer received a letter from a solicitor in England accusing us of defamation related to a consumer protection website hosted by one of our U.S. clients. Apparently, some posters were indicating something to the effect that a certain company in England was made up of a bunch of con artists, blah, blah, blah.
In the U.S., we as the host are not liable for defamatory postings by third parties pursuant to the Communications Decency Act (the CDA, if you will, since we know lawyers and techies love their acronyms). But in the U.K., they have their own laws and they have no CDA immunity law. There, it is claimed, service providers may be liable if they are provided with notice of the alleged defamatory statement and fail to take it down or remove it. Arrrgh, what to do? U.K. company wants to sue us, client does not want to take it down (understandably so), because it is not violating any U.S. laws or regulations or our Acceptable Use Policy (AUP). “Free speech, free speech,” the client cries. What is SL going to do? Throw another Boston tea party. We are going to let the British company either sue us or not in England and then dare them to try and enforce a judgment here in the U.S. A nice attorney, Mr. Paul Levy, at Public Citizen Litigation Group (www.citizen.org/litigation) has agreed to represent us here pro bono if that happens. Here’s his letter to the English solicitor on our behalf: http://www.citizen.org/documents/SoftLayerLetter.pdf
It turns out that the U.K. company’s strategy of trying to snag and sue us there has a name – “libel tourism.” This term refers to a plaintiff who “tours” or shops around for the most convenient forum to bring a libel or defamation claim. As you can see above, the U.K. is much more defamation friendly and free speech unfriendly than the U.S. So rather than bring an action in the U.S. where we and our client are located, let’s just sue in Britain.
To combat this unfairness New York State has passed a law called the “Libel Terrorism Protection Act” (not sure if the term “tourism” got lost in that bill somewhere, or if because it was based on an action brought by a Saudi businessman that it turned into “terrorism”). Basically this Act says that a foreign judgment related to defamation won’t be honored unless a New York court first determines that that country’s freedom of speech and press rights are at least as expansive as those allowed by the U.S. and NY state constitutions. Get it – New York would never allow a defamation action brought in the U.K. to be enforced. Victory for the service provider, victory for free speech and the American way of life!!!!
So why a road trip to Austin and/or D.C.? My students are so sharp today! Let’s get some state and national legislation that protects us from the harshness of other countries’ laws related to defamation which expose us to litigation or at least protects us from that proverbial rock and the hard place. Everyone asleep yet?
No. of times acronyms used: 19
No. of attorneys referenced: 3