LONDON — Roman Polanski, Oscar-winning director of The
Pianist, has brought a libel suit in the UK against Vanity
Fair magazine. In the offending article, an acquaintance of
Polanski’s is quoted remembering the director attempt to pick up
“the most gorgeous Swedish girl you ever laid eyes on” while
Polanski was on his way back to Hollywood in 1969 for the burial of
his wife, actress Sharon Tate. The actress had just been brutally
murdered by followers of Charles Manson when she was eight months
pregnant. Polanski says he flew directly to Los Angeles for the
funeral.
The Times of London recently reported that Polanski,
who lives in Paris because of a long-standing rape charge against
him in the U.S., plans to testify via video link in the November
trial. He was charged in 1977 with the statutory rape of a
13-year-old in California. He agreed to plead guilty but fled to
Europe before he could be sentenced. Polanski, 69, now fears travel
to London because of tough extradition treaties between Britain and
the U.S.
But Polanski is suing in London because of tough British laws
which place the burden of proof on the publisher of alleged libel.
In the U.S., a public figure has to prove malicious intent for a
libel suit to have even the slightest possibility of success,
giving publishers a great deal more leeway in what it is
permissible to print.
Such standards for criminal libel have typically resulted in
greater restrictions on free speech in Europe — particularly in
Britain, where defamation laws have traditionally protected “the
best men,” i.e., those with a public life and therefore a
reputation worth preserving (case in point, apparently, Roman
Polanski). However, international laws regulating the written word
have not been of great concern to American publishers — until
now.
Since the dawn of the Internet Age, various countries have
sought to weave their censorship laws around the World Wide Web —
and in recent years, with greater success. And while any libel or
defamation litigation can be draining for a publisher, defending
against a lawsuit halfway around the globe in a foreign legal
system is likely to be an extraordinary burden.
Publishers can no longer avoid contemplating such possibilities
after the High Court of Australia late last year permitted a libel
suit against Dow Jones & Co. in New York City to proceed in
Victoria based on the posting of a Barron’s magazine
article online. With Australian defamation laws more in line with
European than American standards, the suit may actually have teeth
— although no conclusion is yet in sight, with appeals likely over
the course of the next year.
Fortunately, within days of the Australian court’s decision to
allow the case to go forward, the U.S. Court of Appeals for the
Fourth Circuit in Richmond handed down a very different decision in
a similar case. It affirmed that a 1984 Supreme Court precedent was
not fundamentally altered in any way by the existence of the
Internet, and held that newspapers cannot be sued for libel out of
state based on their websites alone.
But American publishers may well find in the future that they
are more exposed to suits across the world. The Australian high
court ruling is not the first to pronounce on broad questions of
sovereignty in the realm of Internet content. France, Germany and
Italy in recent years have each asserted the right to regulate
online content within their countries regardless of where that
material is hosted. In Germany, the Federal Court of Justice ruled
in December 2000 that laws banning racial hatred apply to material
that is accessible to German Internet users, even if it is created
outside of Germany and stored on servers outside the country.
But in November 2001, an American federal judge struck back with
a different precedent, ruling that Yahoo! was not subject to
liability in the United States from a lawsuit filed by French
students over World War II memorabilia offered for auction on the
company’s U.S.-based site. The District Court judge wrote:
“Although France has the sovereign right to regulate what speech is
permissible in France, this court may not enforce a foreign order
that violates the protections of the United States Constitution by
chilling protected speech that occurs simultaneously within our
borders.”
In other words, the First Amendment’s guarantee of free speech
means countries engaging in more extensive censorship won’t be
allowed to enforce their judgments in the United States — a policy
that would, in effect, protect Web publishers who do not have the
misfortune of residing (or holding assets) in France.
The United States has always been one of the most aggressive
protectors of free speech in the world, very much at odds with
European norms protecting the reputations of public figures. There
could be various reasons for the differing mentalities across
borders — perhaps a New World culture of iconoclasm versus an Old
World ethic of respect for one’s betters (“Long Live the King”
in
Britain; “The King Must Die” in America). Perhaps irreverence is
just part of America’s national character, or maybe we’ve simply
learned not to put too much stake in other people’s opinions — a
sort “sticks and stones” attitude in the realm of public
discourse.
Regardless of the cultural reasons underlying the disparate
norms in the U.S. and the rest of the West, Americans should be
vigilant in defending the First Amendment against European-style
bureaucracy creep. While the Wild West mentality of the Internet
may not suit European tastes, Americans have always been open to
the freedom of new frontiers.
