BILL ANALYSIS
SB 320
Page 1
SENATE THIRD READING
SB 320 (Corbett)
As Amended June 16, 2009
Majority vote
SENATE VOTE :38-0
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Jones, Knight, | | |
| |Krekorian, Lieu, Monning, | | |
| |Silva | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Seeks to add to the list of exceptions from those
foreign money judgments that may be recognized in California, a
judgment for defamation obtained in a jurisdiction that does not
provide at least as much protection for freedom of speech and
the press as that provided under the United States (U.S.) and
California Constitutions. Specifically, this bill :
1)Adds to the list of foreign country judgments that a
California court is not required to recognize, a
foreign-country judgment that includes recovery for a claim of
defamation unless the court determined that the defamation law
applied by the foreign court provided at least as much
protection for freedom of speech and the press as provided by
both the U.S. and California Constitutions.
2)Specifies that the court, for the purposes of rendering
declaratory relief for liability for the foreign country
defamation judgment ("judgment") or a determination that the
judgment is not recognizable in California, has jurisdiction
to determine the declaratory relief action as well as personal
jurisdiction over the person or entity who obtained the
judgment if both of the following are true:
a) The publication at issue was published in California;
and,
b) The person or entity against whom the judgment was
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obtained either has assets in California that might be used
to satisfy the judgment, or may have to take actions in
California to comply with the judgment.
FISCAL EFFECT : None
COMMENTS : This bill, sponsored by the California Newspaper
Publishers Association, seeks to permit a court in California to
not recognize a judgment for defamation obtained in a foreign
jurisdiction that does not provide at least as much protection
for freedom of speech and the press as that provided under the
U.S. and California Constitutions.
The sponsor has written in support of the bill:
SB 320 addresses the problem of Libel Tourism-the
increasingly popular practice of suing U.S.
journalists and authors in libel-friendly foreign
courts, and then attempting to enforce the judgment
(usually obtained by default) in a California court.
SB 320 will limit the exposure of California writers
[to libel tourism], diminish the chilling impact of
libel tourism on aggressive reporting. . . and,
ultimately, pressure foreign jurisdictions like
Britain to change its laws to place greater
protections on free speech.
The First Amendment right to free speech, as embodied in Section
2 of Article I of the California Constitution, guarantees that
"every person may freely speak, write, and publish his or her
sentiments on all subjects, being responsible for the abuse of
this right. A law may not restrain or abridge liberty of speech
or press." Accordingly, our state's laws favor freedom of
expression and make it relatively difficult for a plaintiff to
establish defamation through writing (libel) or speech
(slander).
For example, under California law, libel is defined as "a false
and unprivileged publication by writing, printing, picture,
effigy, or other fixed representation to the eye, which exposes
any person to hatred, contempt, ridicule, or obloquy, or which
causes him to be shunned or avoided, or which has a tendency to
injure him in his occupation." Thus, a plaintiff wishing to
establish a prima facie case of libel in California courts must
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prove that the writing is false and exposed the plaintiff to
harm or injury, as provided.
Not all foreign countries, however, employ a similar standard
for proving defamation. Under British law, an offensive
statement is presumed defamatory and the burden of proving the
truth of the statement rests not with the plaintiff, but with
the libel defendant who made the statement. The discrepancy
between British and California law in this area obviates the
fact that British courts in particular are perceived to be quite
favorable for defamation plaintiffs.
The so-called "Libel Tourism" problem is enabled by existing
law, the Uniform Foreign-Country Money Judgments Recognition Act
("the Act"), which provides that final and conclusive
foreign-country money judgments, as defined, are enforceable in
California with specified exceptions. The Act effectively
permits a judgment creditor to invoke enforcement procedures
available in this state against a California resident or asset,
even when the determination of legal rights and obligations were
rendered by the foreign court under applicable law in that
jurisdiction. Thus, the combination of the Act and the
favorable defamation laws outside the U.S. provide an incentive
for certain plaintiffs to practice libel tourism rather than
suing in an American court where there are well-established
constitutional protections for speech. Libel tourism, according
to supporters of this bill, is essentially a form of
"forum-shopping" for parties seeking libel damages.
Recent amendments clarify the way in which the court shall
implement these modest changes in civil procedure. In order to
entertain any action to enforce or challenge a foreign-country
judgment against a California resident or upon an asset located
in California, a court of this state must have personal
jurisdiction over the parties to the foreign-country judgment.
The bill now clarifies that a California court not only has
jurisdiction to determine declaratory relief with respect to:
1) liability for the judgment; and, 2) determination that the
judgment is not recognizable under Code of Civil Procedure
Section 1716, but also has personal jurisdiction over the person
or entity who obtained the foreign-country judgment if certain
conditions, as specified, are met.
These jurisdictional provisions are necessary to enable
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California residents to seek protection for themselves and their
assets from foreign-country defamation judgments. In addition,
because the bill extends personal jurisdiction to persons or
entities "amenable to jurisdiction in California", a
non-resident may also protect assets located in California, and
a judgment creditor from another state or country may seek
assistance of the California courts in enforcing an otherwise
recognizable foreign-country defamation judgment.
Finally, before a court can use its statutorily authorized
discretion to not recognize a foreign-country judgment, there
must be a determination that the defamation law applied by the
foreign court provided at least as much protection for freedom
of speech and the press as provided by both the U.S. and
California Constitutions. The bill clarifies that the present
court may make this determination, if it has not been made
already, and then the same court may immediately use that
determination to decide whether to recognize or not recognize
the foreign-country judgment, as long as the court does so in
that order.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0001521