0.8 Online hosting issues and options  (Page 11/11)

Libel and liability

Although a discussion of libel and publishers’ liability for libel claims falls beyond the scope of this guide, it should be noted that societies disseminating their publications via the Internet are more susceptible to defamation claims from distant locations.

A publisher’s risk in this regard is increased by “libel tourism,” in which a litigant files a libel suit in a plaintiff-friendly jurisdiction where a court is more likely to issue a favorable judgment. Libel tourism refers, in particular, to the practice of suing an author or publisher in the U.K. for a work not published or distributed in that country, and where neither the plaintiff nor defendant is a citizen of the U.K.

Under the constitutional protections of the First Amendment, the libel laws of the United States protect speech to a greater extent than the defamation laws of other countries. In the U.S., libel plaintiffs must prove that the offending speech is both false and published with a reckless disregard for the truth. In the U.K. (the libel tourism destination of preference), common law assumes that the speech is false and defamatory, and the burden falls on the defendant to prove that a published statement is true.

Given the expansive nature of scholarly exchange, defamation suits against scholarly publishers appear to be uncommon. After a suit against the CAA (see n166), the American Council of Learned Societies polled its membership, but found no other instances of forum shopping to date. Howard (2008b). There are, however, several recent examples of publishers of scholarly monographs confronting libel tourism suits. See Carvajal (2008). However, in 2008, the College Art Association had the unwelcome distinction of being the first scholarly society in the U.S. to confront forum shopping, when an Israeli professor of art history who considered a review of her book in the CAA’s Art Journal to be defamatory, threatened a suit in the U.K. For an account of the incident, see Howard (2008a) and Howard (2008b). Although the CAA settled out of court, the case illustrates the risk that scholarly publishers may face in other jurisdictions. As a result of its experience, the CAA sponsored an editorial workshop to discuss the legal risks of publishing in an international environment. College Art Association (2008).

High-profile libel tourism cases have provoked legislative responses in the U.S. The New York Libel Tourism Protection Act, enacted in 2008, blocks enforcement of a non-U.S. libel judgment in a New York court unless the judgment is consistent with New York law and U.S. constitutional protections. Similar bills have been introduced, although not yet passed, in both houses of Congress. A bill introduced in the Senate would preclude U.S. courts from enforcing libel judgments awarded by foreign courts if the speech would not be deemed defamatory under U.S. law. Further, the bill provides for authors and publishers to countersue and collect treble damages if the foreign suit suppressed their free speech rights. For text of the Senate bill, “The Free Speech Protection Act of 2008,” see< (External Link) >.

Notwithstanding whatever protection legislative remedies might provide, the CAA workshop identified several precautions that publishers might take to reduce their risk in libel cases. These include: carefully reviewing any ad hominem criticism; checking facts independently when the topic warrants; documenting all relevant interactions between a journal’s editors and an author; seeking legal counsel immediately upon the threat of a suit; providing feedback channels (such as letters) that allow authors to respond to critical reviews; and training editors and editorial staff on potential legal issues, and on the appropriate policies and procedures in the event a problem arises. College Art Association (2008).

In addition to such training, a publisher may want to consider Errors and Omissions (E&O) insurance, a type of malpractice insurance that provides the publisher with coverage against claims for alleged professional negligence, including libel, copyright or trademark infringement, obscenity, and false advertising. A publisher who already has such insurance should review its policy to ensure that it covers the publisher’s online publications and any other online activities, such as moderated discussion forums, for which the publisher might be liable. Page, Campbell, and Meadows (1997), 267-269.