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I.
INTRODUCTION
Libel tourism is much in the news these days--so much so, that it is even the subject of a Wikipedia entry.1 It is defined (correctly) in Wikipedia as a type of forum shopping in which a claimant chooses to bring a libel action in the jurisdiction thought most likely to give a favourable result. This invariably turns out to be England. At present, there is a media campaign, originating in the United States but echoed in England, claiming that libel tourism is undermining free speech.2 The purpose of this article is to consider whether these claims are justified. Only questions of conflict of laws will be discussed.3
II.
THE PROBLEM
We all believe in free speech. We also believe that people should be protected from defamation. There is a potential conflict between these two values and the law has to attempt some kind of balance. In some countries, the balance tilts in favour of free speech; in others, it tilts in favour of protecting reputation. England is one of the most extreme members of the latter category: English libel law is generally regarded as the most claimant-friendly in the world. Under it, the claimant has a prima facie case once he has established that the defendant has published a defamatory statement about him. He does not have to prove that the statement is false (though the defendant has a good defence if he can prove it is true) and he does not have to prove that the defendant acted out of malice. Damages can be high by international standards. No wonder that the rich and the famous come from the four corners of the globe to bring libel actions in England.
The problem is that if English courts assume jurisdiction in too wide a range of cases (and if they apply English law), countries that give more weight to free speech could legitimately complain that the English courts were undermining their freedoms. Our first task, therefore, is to examine English conflict-of-laws rules in libel actions in order to ascertain whether they achieve a fair balance between the competing interests.
III.
THE LEGAL BACKGROUND
The problem has both a choice-of-law element and a jurisdictional element....