Saturday, July 12, 2014

What does the SPEECH ACT have to do with Foreign Judgments and Sec. 230?

In a recent federal court decision in California, the defendant Automattic (aka Wordpress) raised the defense of the SPEECH Act, supporting its Sec. 230 defenses.  So what is the SPEECH Act and what does it do?

First, the video tape.  In JOUDE v. WORDPRESS FOUNDATION, Dist. Court, ND California 2014, according to the court, plaintiffs, citizens of France,
learned of a blog at the web address [] ("the Blog"). Id. ¶ 11. Titled "The Hoodwankers," the Blog is about Plaintiffs and other members of the Joude family and published anonymously. Id. ¶¶ 11, 13. From February 27, 2014 to March 8, 2014, an anonymous contributor posted a total of twelve separate entries. See McCoy Declaration, Ex. A, ECF No. 1-4, at 35-43. While some of the entries appear to state plain facts about Plaintiffs' family history, others contain negative remarks. Id.
Plaintiffs contacted defendants and asked that the blog be removed.  Defendants responded "that they 'were in no position to arbitrate content disputes' but would remove any content 'found to be defamatory or illegal by a U.S. court of law' in a formal order from a United States court. Id."  Plaintiffs obtained a French defamation Order and sought to enforce it.  Defendant stated "um, I dont think so," citing the SPEECH Act.  Plaintiff's did not oppose Defendant's Motion for I-Dont-Think-So and the cause of action was dismissed.  With the cause of action dismissed, the court opined that it could not review the applicability of the SPEECH Act.

Okay, but what IS the SPEECH Act?

The CRS provides a nice summary:  Emily C. Barbour, The SPEECH Act: The Federal Response to "Libel Tourism", Congressional Research Service Sept. 16, 2010
The SPEECH Act prohibits domestic courts from recognizing or enforcing foreign judgments for defamation in any one of three circumstances:
  • When the party opposing recognition or enforcement claims that the judgment is inconsistent with the First Amendment to the Constitution, until and unless the domestic court determines that the judgment is consistent with the First Amendment,
  • When the party opposing recognition or enforcement establishes that the exercise of personal jurisdiction by the foreign court failed to comport with the due process requirements imposed on domestic courts by the U.S. Constitution, or
  • When the foreign judgment is against the provider of an interactive computer service and the party opposing recognition or enforcement claims that the judgment is inconsistent with section 230 of the Communications Act of 1934 (47 U.S.C. § 230) regarding protection for private blocking and screening of offensive material, until and unless the domestic court determines that the judgment is consistent with those provisions. 74
    N 74: Some commentators have noted that, in applying section 230 of the Communications Act of 1934 to foreign judgments, the SPEECH Act only extends protection to providers of interactive computer services even though section 230 protects providers and users of interactive computer services. E.g. , Eric Goldman, New Anti-Libel Tourism Act (HR 2765) Extends 47 USC 230 to Foreign Judgments , T ECH. & MARKETING L. BLOG (Aug. 11, 2010, 9:20 AM), http://blog.ericgoldman.org.
Moreover, in any of those three circumstances, a U.S. citizen opposing recognition or enforcement of the foreign judgment may bring an action in a federal district court for a declaratory judgment that the foreign judgment is repugnant to the Constitution. The SPEECH Act also permits any action brought in a state domestic court to be removed to federal court if there is diversity jurisdiction or one party is a U.S. citizen and the other is either a foreign state or citizen of a foreign state.

The SPEECH Act ensures that a party who appeared in a foreign court rendering a foreign judgment to which the act applies is not deprived of the right to oppose recognition or enforcement of that subsequent judgment. If the party opposing recognition or enforcement of the judgment prevails, the act allows the award of reasonable attorney fees under certain conditions.

Finally, the SPEECH Act appears to preempt state laws related to foreign judgments.
Now you know.
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