Skip to main content Accessibility help
Hostname: page-component-568f69f84b-l2zqg Total loading time: 0.348 Render date: 2021-09-18T17:56:30.167Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

The Interaction between American and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel Judgments

Published online by Cambridge University Press:  17 January 2008


Three Korean women won $75,000 in damages in a libel action against the American-owned Newsweek, Inc. in Seoul for publication of a defamatory photo and a caption in the Pacific edition of Newsweek. A Singapore judge awarded former Prime Minister Lee Kuan Yew of Singapore and two others a §678,000 damage award against the International Herald Tribune, owned by the New York Times Co. and the Washington Post Co., for libel relating to an editorial-page column about the “dynastic politics” in the island nation.

Copyright © British Institute of International and Comparative Law 2000

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)


1. Kwon Sun-jong v. Newsweek, Inc., 93 Na 31886, Seoul Civil District Court, Appellate Division, April 30, 1994, Press Arb. O. (Korean), Autumn 1994, at 152. For a discussion of Kwon Sun-jong, see Youm, Kyu Ho, Press Law in South Korea 125, 147–48 (1996).Google Scholar

2. Charles P. Wallace, “Singapore's Grip”, Colum. Journalism Rev., November–December 1995, at 19. On April 11, 1996, the High Court of Singapore awarded Lee Kuan Yew $71,000 in libel damages for an op-ed article by an American professor, Christopher Lingle. The article, which appeared in 1994 in the International Herald Tribune, implied that Lee used the compliant courts in Singapore as a tool of his repressive politics. The Tribune already paid $214,000 to Lee for the article, while Lingle returned to the United States from the National University of Singapore where he taught as a lecturer. See “Singapore's Ex-Premier Gets $71,000 in Libel Damages”, N. Y. Times, April 12, 1996, at A4. For a more detailed discussion of the Lingle case, see Seow, Francis T., The Media Enthralled: Singapore Revisited. 173–77 (1998).Google Scholar

3. “Suharto Says He Will Sue Time Magazine”, N. Y. Times, June 3, 1999, at A4. See also Jeremy Wagstaff & Puspa Madani, “Indonesia Drops Probe of Wealth of Suharto and Fuels Suspicions”, Wall Street J., Oct. 22, 1999, at A23 (noting that “Indonesian police said local courts had no authority to hear Mr Suharto's suit as a criminal libel case, but a civil case was scheduled to be heard by a Jakarta court”).

4. “Indonesian Court Allows Suharto-Time Case to Proceed”, Japan Economic Newswire, Nov. 9, 1999, available in LEXIS, Nexis Library, NEWS File.

5. Youm, Kyu Ho, “Libel: The Plaintiffs Case”, in Communication and the Law (Hopkins, W. Wat ed., in press).Google Scholar

6. Fuson, Harold W. Jr., Telling It AlL A Legal Guide to the Exercise of Free Speech 6 (1995)Google Scholar. See also Hargreaves, Ian, “Foreword”, in The International Libel Handbook at ix (Braithwaite, Nick ed., 1995)Google Scholar (stating that “as journalism becomes irreversibly more international, journalists are doomed to confront the laws of countries other than their own. A book, magazine or article may be safely sold in one country, but published only at great risk in another”). For a discussion of cyberspace defamation in an international context, see Eric J. McCarthy, “Networking in Cyberspace: Electronic Defamation and the Potential for International Forum Shopping”, 16 U. Pa. J. Int'l Bus. L 527 (1995).

7. 585 N.Y.S.2d 661 (Sup. Ct. 1992).

8. Id. at 661.

9. Id. at 664. For a detailed discussion of Bachchan, see Kyu Ho Youm, “Suing American Media in Foreign Courts: Doing an End-Run Around Libel Law?”, 16 Hastings Comm/Ent LJ. 235, 245–50 (1994). See also Robert L. Spellman, “‘Spitting in the Queen's Soup’: Refusal of American Courts to Enforce Foreign Libel Judgments”, 16 Com. & L.63 (December 1994).

10. 702 A.2d 230, 249 (Md. 1997).

11. Id.

12. Sanford, Bruce W., Libel and Privacy § 2.3.5, at 48.11 (2d ed. 1999).Google Scholar

13. This section is a revision of the author's article, “Suing American Media in Foreign Courts: Doing an End-Run Around U.S. Libel Law?”, supra note 9, at 239–44.

14. For constitutional provisions on freedom of the press in various countries, see Constitutions of the Countries of the World (Blaustein, Albert P. & Flanz, Gisbert H. eds, 1999).Google Scholar

15. For a discussion of English press law, see Supperstone, Michael, “Press Law in the United Kingdom”, in Press Law in Modern Democracies 9 (Lahav, Pnina ed., 1985).Google Scholar

16. Kane, Peter E., Errors, Lies, and Libel, at xiii (1991)Google Scholar. For a thoughtful discussion of “absolutism” on freedom of speech as a whole, see Rodney A. Smolla, 1 Smolla and Nimmer on Freedom of Speech §§ 2:47–2:54. at 2–5 to 2–56 (1999).

17. See generally Justice Hugo Black and the First Amendment (Dennis, Everette E. et al. eds., 1978).Google Scholar

18. Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503; 522 (1969).

19. Carter-Ruck, Peter F., Memoirs of a Libel Lawyer 17 (1990).Google Scholar

20. Schauer, Frederick, “Social Foundations of the Law of Defamation: A Comparative Analysis”, 1 J. Media L. & Prac. 3 (1980).Google Scholar

21. 376 U.S. 254 (1964).

22. Handman, Laura R. & Balin, Robert D., “The Interface Between Foreign and U.S. Defamation Law. The First Amendment Goes Global”, in LDRC [Libel Defense Resource Center] 50-State Survey 19921993, at xxvii (Kaufman, Henry R. ed., 1993)Google Scholar. See also Farber, Daniel A., The First A mendment 79, 86 (1998)Google Scholar (stating that the Sullivan ruling is “dramatic” and “transformative” in its imapct on U.S. libel law).

23. Lewis, Anthony, Make No Law: The Sullivan Case and the First Amendment 156 (1991)Google Scholar. Make No Law is a fascinating account of the Sullivan case with a penetrating analysis of the history and evolution of the First Amendment.

24. Professor Herbert Wechsler of Columbia Law School, who represented the New York Times Co. in Sullivan, argued that the strict liability rule evolved from the 18th-century effort of England “to maintain royal immunity”. Lewis, supra note 23, at 157 (quoting Herbert Wechsler).

25. Peck v. Tribune Co., 214 U.S. 185, 189 (1909) (quoting Lord Mansfield in Rex v. Woofdall, [1774] Lofft 776, 781, 98 Eng. Rep. 914, 916).

26. Restatement of Torts § 559 (1938).

27. Id. § 558.

28. Page Keeton, W. et al. , Prosser and Keeton on Torts § 116, at 840 (5th ed. 1984).Google Scholar

29. Overbeck, Wayne, Major Principles of Media Law 111 (1996 ed. 1996).Google Scholar

30. Teeter, Dwight L. Jr. et al. , Law of Mass Communications 277 (9th ed. 1998).Google Scholar

31. Fair comment and criticism was first recognised as a libel defence in common law in 1808. See Gillmor, Donald M. et al. , Mass Communication Law 253 (5th ed. 1990)Google Scholar, citing Carr v. Hood, [1808] 1 Camp, 355, 170 Eng. Rep. 983.

32. Robertson, Geoffrey & Nicol, Andrew G. L., Media Law 61 (2d ed. 1990).Google Scholar

33. See generally Restatement (Second) of Torts § 566 comt. a (1977).

34. Smolla, Rodney A., Law of Defamation § 6.4, at 6–7 (2nd ed. 1999)Google Scholar (citation omitted). A 1990 British report on libel and privacy notes: “[A] person may bring an action where he can prove that words have been published, that they refer to him and that they are defamatory … There is no remedy in defamation where the material published can be proved by the defendant to be … fair comment”. Committee on Privacy and Related Matters, “Report of the Committee on Privacy and Related Matters”, a report presented to Parliament by the Secretary of State for the Home Department by Command of Her Majesty, at 25 (June 1990).

35. Taban v. Tipper, [1808] 170 Eng. Rep. 981.

36. In England the fair report privilege is recognised as a “qualified privilege”, distinguished from an “absolute privilege”. See Carter-Ruck, Peter F. & Starte, Harvey, Carter-Ruck on Libel and Slander 121–60 (5th ed. 1997).Google Scholar

37. Legal historian Frederick Siebert has characterised the fair report privilege as one of “several important citadels” the English press wrestled from its government in its fight for freedom between the 1750s and the 1850s. Siebert, Frederick S., The Rights and Privileges of the Press 190–91 (1934).Google Scholar

38. [1796] 1 Bos. & Pul. 525, 126 Eng. Rep. 1046 (CP) (per Eyre C.J.). The English court stated: “Though the matter contained in the paper might be very injurious to the character of the magistrates, yet… being a true account of what took place in a court of justice which is open to all the world, the publication of it was not unlawful”. Id. at 526, 126 Eng. Rep. at 1046.

39. Restatement (Second) of Torts § 611 (1977). For a comparative analysis of the fair report privilege in American and English libel law, see Youm, Kyu Ho, “Fair Report Privilege versus Foreign Government Statements: United States and English Judicial Interpretations Compared”, 40 Int'l & Comp. L.Q. 124 (1991).Google Scholar

40. Compare Lee v. Dong-A libo, 849 F.2d 876 (4th Cir. 1988) (denying fair report privilege to foreign government statements) with Friedman v. Israel Labour Party, 957 F. Supp. 408 (E.D. Pa. 1997) (recognising fair report privilege for foreign government proceedings). For a recent discussion of Lee and Friedman, see Kyu Ho Youm, “American Libel Law in International Communication: Is It Privileged to Report on Foreign Governments?” (Nov. 30, 1999) (unpublished manuscript).

41. See Webb v. Times Publ'g Co., [1960] 2 All Eng. Rep. 789 (reports of foreign judicial proceedings privileged); Blackshaw v. Lord, [1983] 2 All Eng. Rep. 311 (reports of foreign court hearings privileged); Tsikata v. Newspaper Publ'g, [1997] 1 All Eng. Rep. 655 (reports of foreign investigatory commission privileged). Webb was adopted by a U.S. district court in toto as precedent in according privilege to U.S. media's news accounts of the Israeli government announcements in 1997. See Friedman v. Israel Labour Party, 957 F. Supp. 408 (E.D. Pa. 1997).

42. Constitutional law scholar Daniel A. Farber of the University of Minnesota capsulises the uniqueness of Sullivan in relation to free speech law of other countries when he notes: “Of all the aspects of First Amendment law, it [Sullivan] is probably the most surprising to foreigners, particularly to the British (who have very stringent defamation laws)”. Farber, supra note 22, at 86 (parentheses in original).

43. Media law attorney Nick Braithwaite of Clifford Chance in London characterised the burden of proving the truth as the “salient defect” in the English law. Braithwaite, Nick, “England and Wales”, in The International Libel Handbook 86 (Nick Braithwaite ed., 1995).Google Scholar

44. Affidavit of Geoffrey Robertson in Opposition to Plaintiff's Motion to Enforce a Foreign Judgment, at [4], Bachchan v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (Sup. Ct. 1992) (No.28692/92) [hereinafter Robertson's Affidavit].

45. Calvey, Michael J. et al. , “Foreign Defamation Law”, LDRC (Libel Defense Resource Center] 50-State Survey 1987, at xix (Kaufman, Henry R. ed., 1987).Google Scholar

46. Id.

47. See especially Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

48. Sullivan, 376 U.S. at 279–80.

49. In 1967 the Supreme Court extended the actual malice rule to plaintiffs who were “public figures”. See the companion cases, Curtis Publ'g Co. v. Butts & Associated Press v. Walker, 388 U.S. 130 (1967).

50. 475 U.S. 767 (1986).

51. Lewis, supra note 23, at 157.

52. 518 U.S. at 347.

53. Id., at 348.

54. Schauer, supra note 20, at 13 (emphasis in original).

55. Gertz, 418 U.S. at 349–50. Nevertheless, the Gertz rule does not apply to libel cases involving private figures in matters of private interest. See Dun & Bradsireet, Inc. v. Greenmoss Builders, Inc., 472 US. 749 (1985).

56. Id. The U.S. Supreme Court has defined “actual injury” thus: [A]ctual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. Id. at 349.

57. Robertson, Geoffrey, “Two Cheers for the First Amendment”, 9 Comm. Law 8 (Spring 1991)Google Scholar [hereinafter Robertson, “Two Cheers”). See also Handman & Balin, supra note 22, at xxii, in which the two American legal commentators have argued: In a very real sense, the [U.S.] Supreme Court's rejection of Britain's strict liability standard and its requirement that a libel plaintiff demonstrate fault has ushered in a second American Revolution. Just as the first American Revolution created a “form of government … ‘altogether different‘ from the British form” … so too the fault requirement and the actual malice standard have in the past quarter century guaranteed American publishers a vital measure of constitutional protection not available under British law. (citation omitted).

58. Schauer, supra note 20, at 18.

59. Robertson, “Two Cheers”, supra note 57, at 8. See also Robertson's Affidavit, supra note 44, at [8] (stating that the American libel law underlying the Sullivan case is “antipathetic to English common law …”).

60. Eric Barendt, professor of media law at the University College in London, explains: What perhaps has characterised English law, certainly in contrast to the position in the United States, is the greater weight generally given to the latter interest. This has been largely inevitable in view of the low status… traditionally accorded freedom of speech in the common law. English society, with its premium on public image and apparent respectability, has attached more importance to reputation rights. Eric Barendt, “Libel and Freedom of Speech in English Law”, 1993 Pub. L 449, 457. See also Watch, Helsinki, Restricted Subjects: Freedom of Expression in the United Kingdom 1314 (1991).Google Scholar

61. Robertson's Affidavit, supra note 44, at [8]–[9], quoting Lewis, Philip, Gatley on Libel and Slander 206 (Previte, J. E. ed., 8th ed. 1981). For a similar line of observation by Judge Chasanow of the Maryland Court of Appeals in Matusevitch v. Telnikoff, 702 A.2d 230'(Md. 1997), see infra note 185.Google Scholar

62. Sedley, Stephen, “The First Amendment: A Case for Import Controls?” in Importing the First Amendment 29 (Loveland, Ian ed., 1998)Google Scholar. Judge Sedley's view of the affirmative role of the State in equalising the uneven playing field against the corporate media is similar to Yale Law Professor Owen Fiss's challenge to the widely accepted presumption against the State in U.S. law. See Fiss, Owen M., Liberalism Divided: Freedom of Speech and the Many Uses of State Power 31 (1996).Google Scholar

The flip side of Judge Sedley's criticism of the American media's abuse of U.S. libel law is evinced when McDonald's Corp., a U.S.-based multinational conglomerate, in September 1990 sued two English vegetarian-critics in London for defamation under the plaintiff-friendly English law. Dave Morris and Helen Steel, defendants in the “Mclibel” case, said after losing to McDonald's in June 1997: Companies which have such power and influence over the lives of ordinary people should not be able to use libel laws against their critics. It is of vital public importance that matters which affect people's lives and health are areas of free, uninhibited public debate… They are often more powerful than local or national governments, and even less accountable.

In the USA companies and public figures have to show that the critic knew what s/he was saying was false before they can even begin an action for libel—if adopted here [England] that would be a start.

John Vidal, McLibel: Burger Culture on Trial 341 (1997) (emphasis in original). The trial court's verdict against Morris and Steel was affirmed by the appeals court, and the judgment was appealed to the House of Lords, Britain's highest court. Associated Press, “Vegetarians Ask to Appeal ‘McLibel’ Court Decision”, Arizona Republic, July 2, 1999, at A23. For a comprehensive up-to-date informational source on the McLibel case, see the McLibel Trial of the “McSpotlight” wep site at <>.

63. Nick Braithwaite, “England and Wales”, in The International Libel Handbook, supra note 43, at 86 (citation omitted). See also Williams, Alan, “England and Wales”, in International Media Liability 108 (Campbell, Christian ed., 1997)Google Scholar (stating that “[t]he English law of defamation is held by many to be far too restrictive of the right of free expression; England has no provision comparable to the First Amendment in United States law …”) (citation omitted).

64. [1993] 1 All E.R. 1011. For a thoughtful discussion of Derbyshire, see Barendt, supra note 60, at 449.

65. 307 111. 595 (1923).

66. Derbyshire, [1993] 1 All E.R. at 1018.

67. For an insightful discussion of Tribune Co. in critiquing Derbyshire, see Ian Loveland, “City of Chicago v. Tribune Co.—in Contexts?”, in Importing the First Amendment, supra note 62, at 69. Professor Loveland asserted: “The present system [of allowing government bodies no cause of action for libel while at the same time denying qualified defense for political libel] is politically and logically unsatisfactory, it makes little sense for the common law to have embraced Chicago while rejecting Sullivan”. Id. at 97.

68. Gibb, Frances, “Courts Prepared for Act That Will Change Lives”, Times (London), Oct. 26, 1998Google Scholar, available in LEXIS, Nexis Library, NEWS File.

69. For a discussion of how the incorporation of the European Convention on Human Rights into English law will affect press freedom and the right of privacy in England, see Les Carnegie, P., “Privacy and the Press: The Impact of Incorporating the European Convention on Human Rights in the United Kingdom”, 9 DukeJ. Comp. ' Int'l L. 311 (1998).Google Scholar

70. Section 12 of the Human Rights Act of 1998 states:

(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief if made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

(5) In this section— “Court” includes a tribunal; and “relief” includes any remedy or order (other than in criminal proceedings). Human Rights Act, 1998, ch. 42, § 12.

71. Reynolds v. Times Newspapers Ltd. (House of Lords), Times (London), Oct. 29, 1999; Independent (London), Nov. 3, 1999 (transcript), available in LEXIS, ENGGEN Library, Cases File.

72. Article 10 of the European Convention on Human Rights on Freedom of expression states:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Convention for the Protection of Human Rights & Fundamental Freedoms, Nov. 4, 1950, art. 10, 213 U.N.T.S. 221, 230.

73. Mahoney, Paul & Early, Lawrence, “Freedom of Expression and National Security: Judicial and Policy Approaches Under the European Convention on Human Rights and Other Council of Europe Instruments”, in Secrecy and Liberty: National Security, Freedom of Expression and Access to Information 111 (Coliver, Sandra et al. eds., 1999) (emphasis added).Google Scholar

74. Lingens v. Austria, 8 Eur. Ct. H.R. (ser. A) 407, 418 ¶ 42 (1986).

75. For a discussion of the European Court of Human Rights decisions on libel law, see Coliver, Sandra, “Press Freedom Under the European Convention on Human Rights”, in Press Law and Practice 224 (Coliver, Sandra ed., 1993)Google Scholar. See also Coliver, Sandra, “Defamation Jurisprudence of the European Court of Human Rights”, 13 J. Media L. & Prac. 250 (1992)Google Scholar; Voorhoof, Dirk, “Defamation and Libel Laws in Europe—The Framework of Article 10 of the European Convention on Human Rights (ECHR)”, 13 J. Media L & Prac. 254 (1992).Google Scholar

76. Sanford, Bruce W., Libel and Privacy § 23, at 48.9 (2d ed. 1999) (citation omitted).Google Scholar

77. Reynolds, supra note 71 (Lord Nicholls).

78. Id.

79. Id. (Lord Cooke).

80. Id. (Lord Hobhouse).

81. Id. (Lord Steyn, dissenting).

82. Id. (citing Goodwin v. United Kingdom, 22 Eur. H.R. 123, 143, ¶ 39 (1966)).

83. Id. (quoting Gijsels v. Belgium, 25 Eur. H.R. 1, 53, ¶ 39 (1997)) (quotation marks deleted).

84. Id.

85. Id. (Lord Hope, dissenting) (citing Attorney-General v. Guardian Newspapers Ltd. (No. 2), [1990] 1 AC 109).

86. Id.

87. Calvey et al., supra note 45, at xiv. For a discussion of the choice of law issues involving international libel suits against American media, see DeRoburt v. Gannett Co., 83 F.R.D. 574 (D., Hawaii 1979); Richards, Kimberly, “Defamation via Modem Communication: Can Countries Preserve Their Traditional Policies?”, 3 Transnat'l Law, 613, 633–58 (1990).Google Scholar

88. 702 A.2d 230 (Md. 1997).

89. Brief for Appellee at 3, 6, 11, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995) (No. 95–7138) [hereinafter Brief for Appellee].

90. Petition of Appeal, in the House of Lords on Appeal from Her Majesty's Court of Appeal (England) Between Vladimir Ivanovich Telnikoff and Vladimir Matusevitch at Pocket A: Plaintiff's Article in the Daily Telegraph Entitled “Selecting The Right Wavelength to Tune Into Russia (1984–T–No. 964).

91. Id. at Pocket B: Defendant's Letter to the Daily Telegraph.

92. Id.

93. Joint Appendix to Appellate Brief at 41, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C 1995) (No. 95–7138) [hereinafter Joint Appendix].

94. Id. at 251.

95. Id. at 293.

96. Id. at 255–56.

97. Telnikoff v. Matusevitch, Judgment of May 25, 1989 (No. MR/0365), High Court of Justice, slip op., at 65.

98. Id. at 66.

99. Telnikoff v. Matusevitch, [1990]3 All E.R. 865(C.A.).

100. Telnikoff v. Matusevitch, [1991] 4 All E.R. 817, 825 (per Lord Keith).

100. Telnikoff v. Matusevitch, [1991] 4 All E.R. 817, 825 (per Lord Keith).

101. Id. at 822.

102. Id. at 830 (Lord Ackner, dissenting).

103. Joint Appendix, supra note 93, at 517.

104. Id. at 518.

105. Id. at 77–79.

106. The Maryland Uniform Foreign-Money Judgments Recognition Act stipulates: Except as provided in section 10–704 [on grounds for non-recognition], a foreign country judgment meeting the requirements of section 10–702 [on applicability] is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.

Md. Code Ann., Cts. & Jud. Proc § 10–703 (1999).

107. Brief for Appellee, supra, note 89, at 3–4.

108. Complaint for Declaratory Relief (Federal and State Civil Rights) at 12, Matusevitch v. Telnikoff (D.D. Md. 11994) (No. 94–1037).

109. Joint Appendix, supra note 93, at 177.

110. Stipulation of Dismissal and Order at 1–2, Telnikoff v. Matusevitch (Cir. Ct. Montgomery County, Md Oct. 17, 1995) (Case No. 114494).

111. Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment at 1, Matusevitch v. Telnikoff, 877 F.Supp. 1 (D.D.C 1995) (No. 94–1151) [hereinafter Memorandum in Support of Plaintiff's Motion].

112. Id. at 13–17.

113. Id. at 11.

114. Id. at 20–21.

115. See generally Youm, Kyu Ho, “Letters to the Editor and U.S. Libel Law”, 13 J. Med. L. & Prac. 220–28 (1992).Google Scholar

116. Memorandum in Support of Plaintiff's Motion, supra note 111, at 28–29 (citations omitted).

117. Id. at 35.

118. Matusevitch noted Abdullah v. Sheridan Square Press, Inc., 154 F.R.D. 591 (S.D.N.Y. 1994), and Bachchan v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (Sup. Ct 1992).

119. Memorandum in Support of Plaintiff's Motion, supra note 111, at 40–42.

120. Hilton v. Guyot, 159 U.S. 113, 202–203 (1895).

121. Brief of Amici Curiae for Matusevitch at 30, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C 1995) (No. 94–1151).

122. Id. at 36.

123. Id.

124. Memorandum Opposing Vladimir Matusevitch's Motions for Summary Judgment at 1–4, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995) (No. 94–1151).

125. Id. at 5.

126. Matusevitch v. Telnikoff, 877 F. Supp. 1, 4 (D.D.C 1995). Judge Urbina's ruling in Matusevitch was called an “important extension” of U.S. court decisions on enforcement of British libel judgments. See Smolla, supra note 34, § 12:41, at 12–32. For a discussion of the U.S. district court's decision in Matusevitch, see Korsower, Rachel B., “Matusevitch v. Telnikoff, The First Amendment Travels Abroad, Preventing Recognition and Enforcement of a British Libel Judgment”, 19 Md J. Int'l L & Trade 225 (1995)Google Scholar. See also “Matusevitch v. Telnikoff, No. 94–1151 RMU, 1995 U.S. Dist LEXIS 1352 (D.C. January 27, 1995)”, 8 N. Y. Int'l L Rev. 123 (Summer 1995).

127. Id.

128. Id.

129. Id. n.2. Judge Urbina's discussion of the constitutional impact on U.S. libel law is strikingly similar to what Matusevitch argued in his memorandum. See text accompanying supra note 79.

130. Id. at 4.

131. Id. at 5.

132. In considering Telnikoff a “limited public figure” in U.S. libel law, judge Urbina noted that Telnikoff had described himself “as a prominent activist” for human rights in the former Soviet Union since 1953. Id.

133. Id. Judge Urbina discussed the “actual malice” proof required of “public figure” plaintiffs in libel actions, noting U.S. Supreme Court cases such as New York Tunes Co. v. Sullivan, 376 U.S. 254 (1964), Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991), Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967), and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

134. Id. at 6 (discussing Masson, 501 U.S. at 517).

135. Appellant's Opening Brief at 19, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995) (No. 95–7138).

136. Id. at 1 (parenthetical notes in original).

137. Appellant's Reply Brief at 13, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C 1995) (No. 95–7138).

138. Id. (citations omitted).

139. Brief for Appellee, supra note 89.

140. Id. at 39 (citation omitted).

141. Among the media and human rights organisations which joined in the amici brief were the New York Times Co., the Washing Post, the Times Mirror Co., the Dow Jones & Co., Inc., the Associated Press, the American Broadcasting Cos., Inc., National Broadcasting Co., Cable News Network, Inc., the Society of Professional Journalists, ARTICLE 19—The International Centre Against Censorship, and Interrights—The International Centre for the Legal Protection of Human Rights (London). See Brief Amicus Curiae, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C 1995) (No. 95–7138).

142. Id. at 3–4.

143. Id. at 4.

144. Id. at 5 (citing Hilton v. Guyot, 159 U.S. 113, 186 (1895)).

145. Telnikoff, 702 A.2d at 236.

146. Under the doctrine of “abstention”, a federal court may, in the exercise of its discretion, relinquish its jurisdiction “where necessary to avoid needless conflict with the administration by a state of its own affairs”. Black's Law Dictionary 8 (Garner, Bryan A., ed., 7th ed. 1999).Google Scholar

147. See Transcript of Proceedings in the United States Court of Appeals for the District of Columbia Circuit, Matusevitch v. Telnikoff, No. 95–7138 (D.C Cir. Mar. 7, 1996).

148. Telnikoff, 702 A.2d at 240. The Maryland Court of Appeals offered a thorough and scholarly overview of the history and operation of libel law in England and the United States. Smolla, supra note 34, §12:41, at 12–38.

149. Among the most prominently noted sources in the Telnikoff opinion was Frederick Seaton Siebert, Freedom of the Press in England 1476–1776 (1952). Siebert was cited and quoted more than a dozen times in the case.

150. Telnikoff, 702 A.2d at 240–41.

151. Id. at 242.

152. Id. at 257 (Chasanow, J., dissenting).

153. Id. at 244 (“they [draftsmen [of the Maryland Convention]] did not share the view that a guarantee of freedom of the press would not affect seditious libel prosecutions”) (quoting Anderson, David A., “The Origins of the Press Clause”, 30 UCLA L Rev. 455 472 (1983)Google Scholar (internal quotations omitted).

154. Id. For a historical analysis of the Maryland Shield Law, see Gordon, David, “The 1896 Maryland Shield Law: The American Roots of Evidentiary Privilege for Newsmen”, Journalism Monographs No. 22 (02 1972).Google Scholar

155. For a discussion of Sullivan, see supra notes 47–48 and accompanying text.

156. Telnikoff, 702 A.2d at 244–5.

157. Id. at 246 (citation omitted).

158. Id. (citing Jacron Sates Co. v. Sindorf, 276 Md. 580, 592, 350 A.2d 688, 695 (1976)).

159. Id. at 246 (citing Jacron, 276 Md. at 601, 350 A.2d at 700).

160. Id. at 246–47 (citing Jacron, 276 Md. at 599–601, 350 A.2d at 699–700).

161. Id. at 247 (citing Sanford, Bruce W., Libel and Privacy § 2.22 (2d ed. 1996 Supp)Google Scholar; Rodney A. Smolla, Law of Defamation § 1.03[3) (1996); Blackshaw v. Lord, [1984] 1 Q.B. 1, [1983] 2 All E.R. 311, [1983] 2 W.L.R. 283).

162. Id. at 247–48.

163. Id. at 248.

164. Id. at 249.

165. Id.

166. Id.

167. Id.

168. 585 N.Y.S.2d 661 (Sup. Ct. 1992).

169. 83 F.R.D. 574 (D. Hawaii 1979).

170. 719 F. Supp. 670 (N.D. 111. 1989), aff' d. 954 F.2d 1408 (7th Cir. 1992).

171. Telnikoff, 702 A.2d at 249–50.

172. Id. at 250.

173. Id. at 254 (Chasanow, J., dissenting).

174. Id. at 253.

175. Id. at 255.

176. Id. at 255–56.

177. Id. at 256.

178. Article 40 of the Maryland Declaration of Rights provides: “That the Liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subject, being responsible for the abuse of that privilege.” Md. Const. Declaration of Rights, art. 40 (1776).

179. Telnikoff, 702 A.2d at 257.

180. Id.

181. Id.

182. Id. at 258.

183. Id. at 257 (emphasis added).

184. Id. at 258 (emphasis added).

185. Judge Chasanow elaborated on the difference between American and English libel laws on public plaintiffs thus: American public officials and public figures must realise that if they are defamed there is no redress under our laws unless the defamation is done with malice. This may keep some people from becoming public officials and induce others to shun notoriety, but they generally have that choice. British public officials and public figures, however, expect their law to give them protection from even non-malicious false defamatory statements. Id

186. Id.

187. For a discussion of Bachchan, see supra notes 7–9 and accompanying text.

188. Telnikoff, 702 A.2d at 259 (Chasanow, J., dissenting).

189. Id. at 260.

190. Matusevitch v. Telnikoff, No.95–7138, 1998 U.S. App. LEXIS 10628 (D.C.Cir. May 5, 1998) (per curiam) (unpublished).

191. Id. at *2.

192. English lawyer Geoffrey Bindman argued in 1998 that the shift in the burden of proof in English libel law was a prerequisite to creating a harmony between English and American laws. He added: “Of more immediate and practical significance to English lawyers, however, is the extent to which such a shift may be necessary to satisfy the requirements of Art[icle] 10 of the European Human Rights Convention. Following incorporation we can expect the courts quickly to be confronted by this issue,” Bindman, Geoffrey, “A Tale of Two Russians,” New L.J., Feb. 27, 1998, at 307.Google Scholar

193. Smolla, supra note 34, § 1:9, at 1–11.

194. As a prominent First Amendment attorney, Floyd Abrams, said of Bachchan: “It is an important ruling and it establishes an important precedent which, if affirmed, should help to dissuade individuals and companies from seeking to avoid the protections of the First Amendment.” Robin Pogrebin, “A New York Court Refuses to Enforce Decision in U.K. Libel Case”, N. Y. Observer, May 14, 1992, at 19 (quoting Floyd Abrams) (emphasis added). Contrary to some people's predictions, see, e.g. [Sandra Coliver], The Article 19 Freedom of Expression Handbook 151 (1993)Google Scholar; Andy McCord, “Offshore Libel”, Nation, May 25, 1992, at 688, the plaintiff in Bachchan did not appeal the New York court's ruling. Sack, Robert O., 2 Sack on Defamation: Libel, Slander, and Related Problems § 15:4, at 1550 n.212 (3d ed. 1999).Google Scholar

195. In commenting on Bachchan, Ronald Dworkin, professor of law at Oxford and New York universities, predicted that “[i]f the decision is upheld, it will substantially increase the freedom of American publications that are distributed abroad”. Dworkin, Ronald, “Why Must Speech Be Free?”, in Freedom's Law 195 & 374 n.2 (1996)Google Scholar. In this connection, the Maryland Court of Appeals' ruling in Matusevitch, which adopted U.S. District Judge Urbina's reasoning in Bachchan enthusiastically, should be viewed by Dworkin to contribute to protecting international U.S. media significantly.

196. Amy Argetsinger, “Md. Court Won't Enforce British Finding of Libel”, Washington Post, Nov. 11, 1997, at B7 (quoting Bruce Sandford).

197. Matusevitch, 702 A.2d at 260 (Chasanow, J., dissenting). Judge Chasanow's comment is strikingly similar to what Telnikoff argued in his appeal to the D.C. Court of Appeals: “The United States should not become the Libya of reputation terrorists, providing a safe haven for those who have offended the laws and civility of another country, particularly another free and democratic country. United States courts should not become terrorists themselves, imposing upon or threatening our foreign neighbors with penalties… for taking steps recognised in every civilized nation: registration of foreign judgments.” Brief for Appellant at 30, Matusevitch v. Telnikoff, 877 F. Supp. 1 (D.D.C. 1995) (No. 95–7138).

198. U.S. media attorney Robert D. Sack's 1994 comment offers a telling insight into this issue: At the extremes, there are judgments that surely would not be enforceable in the United States. If, for example, the ‘defamation’ was a statement of political opposition found by a foreign court to be seditious, it is unimaginable that an American court would hold it to be other than ‘repugnant’ and therefore unenforceable. If the action constituted an attempt to obtain compensation under foreign law for injury incurred here by publication here, without adhering to American constitutional principles—a plain attempt to evade First Amendment protections—American courts could not be expected to enforce a resulting judgment. Sack, Robert D., Libel, Slander, and Related Problems § 13.6, at 769 (Robert D. Sack & Sandra S. Baron, 2d ed. 1994).Google Scholar

199. See Gillmor, Donald M., Power, Publicity, and the Abuse of Libel Law (1992); Reforming Libel Law (John Soloski et al. ed., 1992).Google Scholar

200. Todd F. Simon & Tuen-yu Lau, When Systems Collide; Trial of Foreign Communist Media in U.S. Court 15 (August 1987) (research paper presented at the annual convention of the Association for Education in Journalism and Mass Communication in San Antonio, Texas).

201. Smolia, Rodney A., Free Speech in an Open Society 357 (1992).Google Scholar

202. Id.

203. See the 1991 Newspaper and Printing Presses Act of Singapore, which requires “off-shore newspapers” to obtain a permit, to appoint an agent in Singapore for service of process, and to post a bond “for the purpose of meeting any liability or cost arising out of any legal proceedings in connection with the publication of the newspaper”. Sack, supra note 194,§ 15.4, at 15–50 n.215. For a discussion of the Newspaper and Printing Presses Act, see Seow, supra note 2, at 185–87.

204. For a discussion of the Korean court's use of attachment to ensure that Newsweek would pay damages to Korean plaintiffs in a 1994 libel case, see Kyu Ho Youm, “U.S. Media and libel Law: An International Perspective”, 55 Gazette 185, 205 n.117 (1995).

205. Laura R. Handman & Robert Balin, “It's a Small World After All: Emerging Protections for the U.S. Media Sued in England”, First Amendment Law Letter, Autumn 1998 (visted Nov. 30, 1999) <>.

206. Mark Stephens, Times (London), Dec. 2, 1997, available in LEXIS, Nexis Library, NEWS File.

Cited by

Send article to Kindle

To send this article to your Kindle, first ensure is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the or variations. ‘’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

The Interaction between American and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel Judgments
Available formats

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

The Interaction between American and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel Judgments
Available formats

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

The Interaction between American and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel Judgments
Available formats

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *