International Defamation Subpoenas & Cross-Border Due Process
What happens when a person who has defamed you lives in another country? Can you still sue him or her for libel or slander? How can a subpoena be issued abroad? Will the person who harmed you be subject to an American court’s judgment if he or she is not a U.S. citizen? We’ll go over all these questions – and more – below.
Can You Sue A Person Who Lives In Another Country For Slander or Libel?
Yes. You can sue another person in another country for slander or libel. The trick is picking the proper jurisdiction to file your claim. In many cases, filing abroad is the better option for plaintiffs, because the United States has the most defendant-friendly defamation laws in the world. If filing in a foreign jurisdiction, you can use a U.S.- based attorney to handle the case. That said, you will need foreign counsel as well, unless the U.S. attorney is authorized to practice law in the defendant’s country. Ultimately, it’s best to find one who has experience with cross-border defamation litigation.
That said, in order to file a defamation lawsuit in another country, you must be able to prove some connection to the country. Were the defamatory statements published in the country? Did the material attract an unusual amount of attention in that country? In other words, you can’t just pick a super-plaintiff-friendly jurisdiction; the incident under review must have a suitable connection to the jurisdiction in which a case is filed.
If I Sue A Non-US Citizen In A U.S. Court, Will They Be Forced To Pay Up If I Win?
Depends. Some countries – like the United States – have laws protecting citizens from certain foreign judgments. For example, the SPEECH Act – passed in 2010 – protects U.S. citizens from having to pay damages in cases where the foreign ruling does not conform to First Amendment standards, the Constitution and state law in the prevailing jurisdiction. For example, if a person tries to domesticate a judgment in Arizona, the actions complained about must be defamatory in Arizona and not protected by Arizona’s Constitution, which also preserves the right to free speech.
That said, many countries – for example, Canada – don’t have laws like the SPEECH Act. As such, if a Canadian citizen is sued by a U.S. entity, they could be forced to pay damages awarded by a judgment, though it may still be subject to Canadian free speech constitutional protections, as well as public policy considerations, as many countries’ courts consider “public policy” objectives in determining whether to enforce a foreign judgment.
What If I Don’t Know The Identity Of A Defaming Non-US-Resident? Can I Still Sue For Slander or Libel?
Sometimes. The process of uncovering an anonymous online defamer involves U.S. courts, in addition to foreign courts and tribunals. In most cases, a name is needed before an international slander or libel lawsuit can proceed. In some cases, via a court order, it’s possible to uncover an anonymous defamer. This is called discovery. Note, though, that some countries may not recognize the American discovery process and therefore refuse to issue the usual “letters rogatory” to assist American courts in discovering the identity of a John Doe defendant. Your lawyer should look into the laws of the relevant foreign country or countries before commencing an action for defamation against an unknown party. If A Defamer Doesn’t Live In The United States, How Can Legal Process Be Served? Can It Be Done Through Social Media?
Various federal and state rules govern the specifics of valid service. Federally, procedures outlined in Fed. R. Civ. P.4(f) deal with service of process abroad. Or, in laymen’s speak, “how to serve a subpoena (or other legal document) on someone in a foreign country.” The law states that “unless federal law provides otherwise, an individual – other than a minor, an incompetent person, or a person whose waiver has been filed – may be served at a place not within any judicial district of the United States. […]In the event both countries aren’t signatories of a shared international agreement, or if the agreement doesn’t outline specific service process means, a method can be used that is ‘reasonably calculated’” to give notice by:
- Using the foreign country’s laws for service.
- Using a method the foreign country directs petitioner to use, via a rogatory (formal legal request).
- Unless prohibited by a foreign country’s law:
- Delivering directly to person.
- “Any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt.”
- Any other means not prohibited by international agreement, as the court orders.
Recently, the FTC was able to serve several Indian citizens via Facebook. It was deemed acceptable because enough evidence existed that the people on Facebook were the people the FTC is after. Specifically, on their Facebook pages, the defendants identified themselves as employees of the company under investigation, and the emails used in the alleged scam are the same as the ones the suspects posted on Facebook.
If Two Countries Are Signatories of the Hague Convention, What Is The Process Of Serving Someone Abroad?
If two countries are both signatories of an international treaty or agreement, the rules of international due process outlined in said agreement must be followed. The most popular international agreement, which has a section on international litigation notification, is the Hague Convention.
The section entitled “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters” outlines international process services. Sixteen articles detail the proper procedures for service of legal documents abroad. Most explain inter-state administrative procedures, in addition to language and administrative processes. Articles 10 and 11 address situations where the intended recipient of a subpoena or legal notice cannot be reached by traditional means.
Article 10 states that if the State of destination doesn’t have objections, the Convention will not interfere with:
- Sending judicial documents via “postal channels” directly to a person abroad;
- Qualified officials effecting service directly through judicial officers; and
- The freedom of any person to effect service of judicial documents directly through judicial services.
Article 11 asserts that the convention will not get in the way of two States that want to set up an alternative agreement of document service.
So what does all that mean in non-legal speak? If the countries of the plaintiff and the defendant can agree on an acceptable means of service, then it is good enough in the eyes of the courts (provided that the courts accept that “service according to a treaty” or some similarly-worded statement is acceptable). What does that mean in today’s marketplace? In certain circumstances, legal notice can be served via social networking sites, like Facebook. So if information links you to your Facebook account, your Facebook messaging system can be considered an acceptable “postal channel” in the eyes of the law, and therefore can be used to let you know you’re being sued.
The rules of international service of process are nuanced. Special forms need to be used, and sent to specific offices, with specific cover letters, in a specific amount of time. Hire an attorney who knows the process. Otherwise, the statute of limitations could run out before your paperwork goes through the system. If you need a lawyer who has successfully dealt with international service process related to online defamation or intellectual property infringement, contact Kelly Warner Law.