HT to Antonin I. Pribetic for his post on the case of the day, Sanchez v. Lord (Mo. Ct. App. 2011), the first case of the day applying the SPEECH Act. Our previous coverage of the Act, which provides a rule of non-recognition for foreign defamation judgments that do not comply with U.S. constitutional law, is here.
Lord and Sanchez were first cousins who grew up in the Philippines. Lord, who lived in Missouri, wrote a self-published autobiography called From Fieldhand to Ph.D., Ms. Asia International. In it, she related an incident in which she had sued Sanchez in the Philippines to set aside a deed for fraud. Sanchez, who now lived in Ontario, sued Lord in Ontario for libel after Fieldhand was published on the Internet. Lord was served with process by fax and email. She did not appear in the Ontario suit, and a judgment was entered against her for $37,500.
The court spent some time noting that under Missouri law, it was necessary for the plaintiff to provide a certified and authenticated copy of the foreign judgment, and Sanchez had failed to do so. (Since Canada is not a party to the Apostille Convention, this could prove time-consuming on remand!) But the main event was the discussion of the SPEECH Act, which, in general terms, requires courts to refuse to recognize or enforce foreign defamation judgments if the judgment does not comport with the First Amendment, or if the foreign court’s exercise of personal jurisdiction over the defendant would not comport with American notions of due process of law. The lower court had not applied the SPEECH Act, and the Court of Appeals remanded for application of the Act.
Does this decision portend a retreat from an era of judicial comity into a cross-border “war of the words”? Will Canadian judges take umbrage with their American counterparts refusing to enforce Canadian libel judgments unless they meet American First Amendment standards? Is this another example of American exceptionalism?
I think the answer to the first question is “no”, because even before enactment of the SPEECH Act, American courts were highly reluctant to enforce foreign defamation judgments on public policy grounds. So it’s not clear that there ever was an “era of judicial comity” in this arena.
I also think it’s premature to try to answer the remaining questions, since the judgment has not been reversed, but rather, vacated and remanded for further proceedings. Assuming Lord’s statements about Sanchez were in fact false, this is the kind of defamation case that could actually be successful under American law—it involves a clearly defamatory statement (an allegation of fraud) and the plaintiff does not seem to be a public figure, nor is the incident in question a matter of public interest. So the Canadian judgment might be consistent with the First Amendment. (The Due Process issues are another matter, as it’s not clear what contacts, if any, Lord had with Canada, nor whether Lord herself published the work on the Internet). Thus the Canadians should not be unduly pessimistic about the prospects for enforcement of the judgment on remand.
UPDATE: As Antonin points out in the comments below, the decision does say “reversed”. But the last paragraphs of the decision make it clear that the court is not deciding the merits of the SPEECH Act issue but giving the plaintiff another chance to submit the judgment in proper form and directing the lower court to consider the SPEECH Act if she does.