Can a Canadian sue an American, in a Canadian court, for defamation? Yes. If the Canadian wins, will the American be forced to pay damages? Because of the SPEECH Act, probably not.
Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act)
It’s a law with a long name and a big job. The Securing the Protection of Our Enduring and Established Constitutional Heritage (SPEECH) Act is the regulation workhorse that materially safeguards U.S. citizens’ free speech rights in foreign jurisdictions.
How does the SPEECH Act work?
The paperwork particulars are nuanced and better left for a lawyer.
But, in basic terms, the SPEECH Act works thusly:
When a ruling is handed down in an overseas court, the foreign party seeking restitution must ask a “state-side” court to force the U.S.-based “losing party” to pay up. The SPEECH Act, however, says judges can refuse to issue a court order to the U.S. party, on the grounds that the case would’ve probably turned out differently in an American court.
U.S. Defamation Laws v. Canadian Defamation Laws
Since the U.S. has the most defendant-friendly libel laws in the English-speaking world, and Canada has the most plaintiff-friendly libel laws in the same demographic, U.S. courts don’t often recognize a libel judgment, in favor of the plaintiff, handed down in a Canadian Court. (Quebec courts are sometimes exceptions to the rule.)
The Notable Exception: If the facts of the case are such that the Canadian plaintiff would have won in both a U.S. and Canadian court, then the American party will be forced to turn over the duckets.
SPEECH ACT Case Study: Blogger v. Canadian B&B Owners
Dissing Innkeepers and Politicians On Slabb.org
Some time ago, Mr. Doug Handshoe of Mississippi posted a missive on Slabb.org. The focus of his prose was the former president of Jefferson Parish, Louisiana – a fallen area politician who plead guilty to theft and bribery. Handshoe compared the disgraced official with the owners of a guest house in Nova Scotia, Canada, quipping that both the politician and the innkeepers “had champagne taste on a beer budget” and “worked as a unit to grift their way through life.”
Canadian Innkeepers Sue for Online Libel
Probably perplexed about how they got dragged into the machinations of a Mississippi political melee, the owners of the Nova Scotia inn filed an online libel lawsuit against Handshoe – in a Nova Scotia court – and they won a judgment of about $430,000.
But can the Canadians collect the money?
The Canadian innkeepers petitioned a federal Mississippi court, asking it to force Handshoe to pay up. But Handshoe argued the SPEECH Act. Chief Judge Guirola agreed and ruled that Handshoe didn’t owe squat because he probably would have won the defamation lawsuit had it been tried in the United States.
The innkeepers appealed, but were once again denied, the Fifth Circuit explaining in their opinion:
A party may enforce a foreign defamation judgment in a domestic court if either (A) the law of the foreign forum . . . provides free-speech protection that is coextensive with relevant domestic law, or (B) the facts . . . are sufficient to establish a defamation claim under domestic law.
The higher court found that the Nova Scotia libel standards used to decide this case did not mesh with point (A), nor did the judges feel that the Canadian innkeepers would have won in a U.S. court, rendering point (B) unfulfilled as well.
Another blow to the Trout Point executives, they had to pay Handshoe’s legal fees.
Canadian-U.S. Defamation Litigation and Lawyers
Kelly / Warner Law has successfully handled many cross-border, Canadian-U.S. libel cases. If you are facing a foreign defamation judgment and want to exercise your SPEECH ACT rights, we can help. If you want to sue a non-U.S. citizen for defamation, we can also help. If you are being sued for defamation and need defense counsel, we do that too.
Kelly / Warner is a top-rated, full-service law firm – with an excellent track record in cases involving the SPEECH Act.
Get in touch today to begin the conversation.