As sports fans around the globe became transfixed last summer by the World Cup, a U.K. libel case featuring Ashley Cole, a top British footballer, captured the attention of many of the world's media lawyers. Cole reached a settlement in a libel suit against two British publications that never actually mentioned him by name: Cole's attorneys argued that readers could easily surmise his identity from Web sites that picked up the story and provided further detail.
Meanwhile, in late August, The New York Times finally came to grips with the conflicting patchwork of laws that allow Internet publication in one country, but may raise liability in others. In reporting about the arrest of Islamic terrorists in London, the Times added facts that, under the United Kingdom's Contempt of Court Act, are considered prejudicial to the fair-trial rights of the accused. In the face of violations of British law, the Times' solution was to prevent U.K.-based Internet addresses from accessing the story. The need for this work-around underscores the deepest philosophical infirmity in U.K. and E.U. law (and, indeed, the laws of most other jurisdictions worldwide): Free press is just not as valued as a foundation of democracy as it is here. While the U.S. First Amendment allows only narrowly tailored restrictions on such speech, in the United Kingdom the public's right to know is often first on the chopping block.
The practical application of this distinction is obvious: In the era when electronic communication can circle the globe instantly, every company that communicates globally can be liable under defamation and privacy law -- and just as liable in the United Kingdom, or in India, or China, as they are in the United States.
That's a daunting prospect for U.S. lawyers representing media companies that maintain Web sites with the potential to reach thousands of readers worldwide. Indeed, those who do business globally might find themselves subject to libel or privacy claims in diverse corners of the world for material on their Web sites, blogs and message boards, or for press materials distributed via e-mail, the Web or commercial newswires.
FAIRNESS AND OTHER FACTORS
What is a lawyer to do when advising as to Web site content and other electronic communications? What is a blogger to do when deciding whether or not to break a story? Lessons drawn from international newsgathering offer a useful guide to operating in the global media environment. Consider fairness, for example. Fairness not only means presenting both sides, but also giving your subject an adequate opportunity to respond. In 2003, The London Daily Telegraph was successfully sued in Britain for publishing an article alleging that a British member of Parliament was a paid agent of Saddam Hussein. Even though the reporter had telephoned the politician the evening before the story went to print, the court ruled that adequate opportunity for comment had not been given.
Also consider whether the story in question is serving the public interest. This is the single most consistent element that protects journalists and publishers around the world in libel cases. What is of interest to the public is not the same thing as what is in the public interest -- which may be news to many a celebrity gossip blogger.
And remember cultural distinctions: A simple word can make the difference between accurate reporting and slander. Seemingly inoffensive language in one country can be a very expensive mistake in another. For example to be "fired" in the United States is not in itself defamatory, but in France or Japan, this word could land you in court. If someone loses his or her job for economic reasons in Japan, where being fired is considered shameful, that person is reported as being "made redundant." Similarly, it's almost impossible to be fired in France, so when that word is used, it is assumed that the subject was in violation of duty.
Finally, in fairness to our global cousins in the United Kingdom, the rest of the European Union and other jurisdictions: There is some value to the higher standards of reporting required. Although it is sacrilegious to say it in the United States, the greatest fear of all media lawyers is to run across that one overworked or burnt-out reporter or editor who believes that because the "public figure" and "actual malice" standards are next to impossible to surmount, careful reporting and clear writing are optional. By requiring a higher degree of care and accuracy, clarity and fairness rise commensurately.
It is clear that the days when only the largest global media companies had to worry about international libel and privacy issues are long gone. Internet publishing makes understanding international libel laws every lawyer's problem. It is often said that there is a reason why our First Amendment is first: that the right to speak freely is the right from which all other freedoms flow. But while this may be a cornerstone of American libel and privacy law, U.S. lawyers cannot let it lull us into a false sense of security when representing clients whose Internet posts are read not just in their hometown, but on computers across the globe.