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.
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