Can Foreign Plaintiffs Sue U.S.-Based Websites For Publishing Defamatory Content? Not really…

I just spoke to a Canadian reporter who had some questions about the legal liability that U.S.-based websites face from plaintiffs outside the U.S. such as folks living in Canada.   This conversation touched on many of the same issues raised in a recent Winnipeg Free Press article which suggested that the bad ruling from Kentucky was “giving locals hope”; i.e., that perhaps Canadian citizens posted on websites like www.TheDirty.com could now successfully sue to get offensive content removed.

Hope is good, but giving people false hope is not.   On that note and because this topic comes up pretty frequently, I wanted to share a few thoughts on why foreign plaintiffs (including Canadians) shouldn’t rush to sue U.S.-based websites….at least not yet.

Here’s the deal — I’ve seen many interviews with Canadian lawyers talking about U.S.-based websites CAN be sued in Canada.  These guys typically say that if a U.S.-based website posts/hosts defamatory content about a Canadian citizen, that could be sufficient to create personal jurisdiction over the website in Canada.   I don’t know if this is correct as a matter of Canadian personal jurisdiction law, and frankly I don’t really care.  For the sake of argument, let’s assume this is correct and that Canada may properly assert personal jurisdiction over a U.S. based website.

Does this mean that Canadian residents can “successfully” sue websites like TheDirty.com in Canada?  No.  Here’s why.

Let’s assume that you are Canadian, and you sue TheDirty.com in Canada.  As the lawyer for that site, I can pretty much assure you — TheDirty.com is not going to appear to defend the case.

So what happens next?  You will get a judgment from your local court that says TheDirty.com owes you money.  Maybe the court will even issue an injunction that says TheDirty.com must remove the posts about you.

Yay!  Great result, yes?  Well, not so fast….

What many people don’t realize is this — a judgment is simply a piece of paper.  By itself, it means almost nothing.   What really matters is whether the plaintiff can actually enforce the judgment, and that’s a whole different ball game.   It is also something the courts will not do for you — in other words, the judge isn’t going to get in his car and drive over to the defendant’s house and break his kneecaps if he doesn’t pay.   Well, at least I don’t think so….

In the U.S., plaintiffs are responsible for enforcing  their own judgments.  This typically involves trying to locate the defendant’s assets and using various tools (bank account garnishments, etc.) to take the defendant’s money or property away.  Jail is not an option, so if a defendant refuses to pay, there may be little you can do other than hunt for his/her assets which can be very expensive, slow, and ultimately futile.

Therein lies the rub — regardless of where the plaintiff lives, a judgment must generally be enforced where the defendant is located (or at least where the defendant’s assets are located).   This means that even if you live in Canada, and even if you get a Canadian court judgment against TheDirty.com or any other U.S. based site, you are going to have to come to the United States to enforce it.   That’s because TheDirty.com doesn’t have any money or property in Canada, so any collection efforts would have to take place here in the U.S.

OK, so why is that so important?  Canada and the United States are not enemies, so surely it must be easy to get a U.S. court to honor a Canadian judgment, right?

Wrong.

Prior to 2010, U.S. courts had broad discretion to either recognize or reject a foreign court judgment or order.  This was never automatic; i.e., just because you have a judgment from another country doesn’t mean that U.S. courts are always going to accept the judgment and enforce it here.

This rule makes sense for obvious reasons — would you really expect a U.S. court to honor a judgment from Saudi Arabia that says all women who appear in public without permission from their husbands must be buried up to their necks and stoned to death (as per Saudi law)?  Of course not.  Saudi Arabia can enforce its laws within its own borders, but it can’t reach out and demand that other countries comply with Saudi Arabian law.

As a matter of international law and with a few exceptions based on various treaties/conventions, every country has the right to decide what foreign court orders it wants to recognize and what ones it wants to ignore.  This is why accused NSA leaker Edward Snowden is hanging out in Russia eating cheese puffs from an airport vending machine rather than playing backgammon with a Taliban cellmate at Guantanamo Bay.

Every country is free to make its own laws and choices, and in 2010 the United States passed a new law severely restricting the ability of U.S. courts to honor foreign speech-based judgments.  This law is known as the “SPEECH Act of 2010” which is an acronym for the incredibly awkward title of the law — “Securing the Protection of our Enduring and Established Constitutional Heritage”.

In a nutshell, here’s what the SPEECH Act says — no court anywhere in the United States is permitted to recognize any foreign speech-based judgment unless the judgment is consistent with U.S. law.  So, this means that if you sue a website like TheDirty.com in Canada and you receive a judgment, courts here in the U.S. will refuse to honor your judgment unless YOU prove that your claims were consistent with U.S. law.   This may be an insurmountable problem because, as I have said many times before, U.S. law generally does not allow plaintiffs to sue website owners for content submitted to their sites by third parties.  You can read more about that specific issue here.

Yes, in all candor,  one federal court in Kentucky rejected my argument in the matter of Sarah Jones v. Dirty World Entertainment Recordings.  Of course, this case is both the subject of a pending appeal and it has been widely regarded as legally incorrect, so pinning your hopes on this one might not be the best idea. (UPDATE: It looks like I was right after all. On June 16, 2014, the Sixth Circuit Court of Appeals agreed with my position and reversed the Kentucky court’s decision. You can read a copy of the 6th Circuit’s ruling here).

Furthermore, a different federal court (at the same level) reached the opposite conclusion and agreed that TheDirty.com is not responsible for third party content in S.C. v. Dirty World, LLC.  Clearly, both courts can’t be right.

The bottom line here is simple — any Canadian plaintiff who is thinking about suing a U.S. based website needs to be extremely careful.   The odds of winning are (in my opinion) extremely low.  More importantly, filing a lawsuit to remove something from the Internet is like trying to smother a fire with gasoline.  Don’t believe me?  Read this: http://en.wikipedia.org/wiki/Streisand_effect and be careful what you wish for.

In closing, I always tell people the same thing — if you find yourself being targeted by online criticism, stop and think before you rush to court.  Suing often just makes it worse.   Instead, take a deep breath and try to keep it in perspective.   As a wise person once said, “If you have haters, smile — you must be doing something right.”

P.S. For more objective information about the SPEECH Act and what it covers, please read this: http://www.fas.org/sgp/crs/misc/R41417.pdf