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In the Dock, in Paris

Published on January 25, 2011        Author: 

My entire professional life has been in the law, but nothing had prepared me for this. I have been a tenured faculty member  at the finest institutions, most recently Harvard and NYU.  I have held visiting appointments from Florence to Singapore, from Melbourne to Jerusalem. I have acted as legal counsel to governments on four continents, handled cases before the highest jurisdictions and arbitrated the most complex disputes among economic ‘super powers.’

Last week, for the first  time I found myself  in the dock, as a criminal defendant. The French Republic v Weiler on a charge of Criminal Defamation. The setting could not have been grander.  As I entered the Tribunal de Grande Instance de Paris, the French Old Bailey, my lawyer whispered: ‘Emile Zola was tried here.’ Vive la difference: This was no Dreyfus Affair but the stakes for Academic Freedom and liberty of expression are huge.

As Editor-in-Chief of the European Journal of International Law and its associated Book Reviewing website, I commissioned and then published a review of a book on the International Criminal Court. It was not a particularly favorable review. You may see all details here.  The author of the book, claiming defamation, demanded I remove it. I examined carefully the claim and concluded that the accusation was fanciful. Unflattering? Yes. Defamatory, by no stretch of imagination. It was my ‘Voltairian’ moment. I refused the request. I did offer to publish a reply by the author. This offer was declined.

Three months later I was summoned to appear before an Examining Magistrate in Paris based on a complaint of criminal defamation lodged by the author. Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? Libel tourism – libel terrorism to some — is typically associated with London, where notorious high legal fees and punitive damages coerce many to throw in the towel even before going to trial. Paris, as we would expect, is more egalitarian and less materialist. It is very plaintiff friendly.

In France an attack on one’s honor is taken as seriously as a bodily attack. Substantively, if someone is defamed, the bad faith of the defamer is presumed just as in our system, if someone slaps you in the face, it will be assumed that he intended to do so. Procedurally it is open to anyone who feels defamed, to avoid the costly civil route, and simply lodge a criminal complaint.  At this point the machinery of the State swings into action. For the defendant it is not without cost, I discovered. Even if I win I will not recover my considerable legal expenses and conviction results in a fine the size of which may depend on one’s income (the egalitarian reflex at its best). But money is not the principal currency here. It is honor and shame. If I lose, I will stand convicted of a crime, branded a criminal. The complainant will not enjoy a windfall as in London, but considerable moral satisfaction. The chilling effect on book reviewing well beyond France will be considerable.

In preparing a defense we faced a delicate challenge. The case was otiose for two reasons: It was in our view an egregious instance of ‘forum shopping,’ legalese for libel tourism. We wanted it thrown out. But if successful, the Court would never get to the merits –  and it was important to challenge this hugely dangerous attack on academic freedom and liberty of expression. Reversing custom, we specifically asked the Court not to examine our jurisdictional challenge as a preliminary matter but to join it to the case on the merits so that it would have the possibility to pronounce on both issues.

The trial was impeccable by any standard with which I am familiar. The Court, comprised three judges specialized in defamation and the Public Prosecutor. Being a criminal case within the Inquisitorial System, the case began by my interrogation by the President of the Court. I was essentially asked to explain the reasons for refusing to remove the article. The President was patient with my French – fluent but bad!  I was then interrogated by the other judges, the Public Prosecutor and the lawyers for the complainant. The complainant was then subjected to the same procedure after which the lawyers made their (passionate) legal arguments. The Public Prosecutor then expressed her Opinion to the Court. I was allowed the last word. It was a strange mélange of the criminal and civil virtually unknown in the Common Law world. The procedure was less formal, aimed at establishing the truth, and far less hemmed down by rules of evidence and procedure. Due process was definitely served. It was a fair trial.

On the merits, we steadfastly refused to engage the complainants challenges to the veracity of the critical statements made by the reviewer. The thrust of our argument was that absent bad faith and malice, so long as the review in question addressed the book and did not make false statement about the author such as plagiarism, it should be shielded from libel claims, let alone criminal libel. Sorting out of the truth should be left to academic discourse, even if academic discourse has its own biases and imperfections.

The verdict will be given on March 3rd.

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42 Responses

  1. Dan Joyner

    Prof. Weiler,
    Since I heard about this case last year I have joined with all other law academics around the world, except for the complainant in this case, in being appalled and disgusted by this action against you. You have handled this gauntlet much better than I think anyone else among us would have. In doing so you have shown tremendous strength of character. You have stood for principles at the heart of academic discourse. I am so hopeful that your principled stand will be vindicated on March 3rd. Whatever happens that day, the complainant should be everlastingly ashamed at what she has done and what she has put you through. I have never seen such a childishly petulent display by a colleague. Shameful.
    With highest regards,
    Dan Joyner

  2. Mal

    What a miserable experience. Bravo to you for standing firm. You have the thanks of many scholars.

    You probably already know about this similar event from a couple of years ago:

    http://chronicle.com/article/Art-Association-Paid-75000/41195

    Sadly, there seem to be some attorneys based in Israel who have discovered that this is an effective and lucrative practice, since up til now most defendants have settled by paying fees (knowing that the legal regimes in much of Europe are weighted against them), and there are scholars who are willing to use the law rather than respond to criticism scholar to scholar.

    In some jurisdictions around the world there has started to be a good response to the use of libel laws to stifle critical speech. The US recently passed the Speech Act, http://www.bbc.co.uk/news/uk-10940211, which offers excellent protection to authors and publishers who are based in the US.

    Even the UK courts are beginning to publicly wonder if their current plaintiff-friendly system might perhaps be in need of some revision.

    Good luck to you and to all of us.

  3. Audrey Guinchard

    Dear Prof. Weiler,

    Like many of us, after having read the review made of the book, I have signed the petition as I found the claim ungrounded. Thank you for an account of the trial that reflects what the procedure is about, a mixture of civil and criminal features as you pointed it. You may have learnt already that the last proposals for reform of the judicial system made in the Rapport 2008 “L’ambition raisonnee d’une justice apaisee” by Prof. Guinchard (not me) suggested to transfer most of the criminal libel cases to the civil courts, so that the State would not have to bear the costs of unnecessary claims and frivolous claims could be discouraged. Your case sadly illustrates the point.
    The report is available on La Documentation Francaise http://www.ladocumentationfrancaise.fr/rapports-publics/084000392/index.shtml

  4. Milana Karayanidi

    Dear Professor,

    I hope the French court will consider the facts and indeed ‘throw out’ the case brought by this Israeli academic. I would sue the guy back in a jurisdiction where you enjoy your reputation (The US) and recover the damages you lawfully deserve.

    Sincerely,
    Milana Karayanidi

  5. […] written up his experience with the trial, which was last week, here.  Fascinating — and chilling — […]

  6. Florbela Pires

    Dear Professor,

    If the French courts decide against you that would be a violation of freedom of speech, protected by the European Convention on Human Rights. You will then have a case before the European Court of Human Rights against France to recover damages.

    http://www.echr.coe.int/ECHR/homepage_en

    A site on review of Portuguese legal books would be of much help.

    All the best
    Florbela Pires

  7. Robert O. Keohane

    Dear Joseph,

    Let me add my voice to those who have expressed outrage that you could be subjected to a criminal trial for publishing a critical but clearly non-libelous review of a book. Academic authors who cannot accept criticism but resort to the law clearly violate professional standards. Let me also express admiration to you for standing your ground, and for the scholarly responsibility and moderation reflected in your statement on this subject. I join all friends of freedom of expression in general, and academic freedom in particular, in hoping that the charges will be dismissed when the court makes its decision in March.

    Sincerely yours,

    Robert O. Keohane
    Woodrow Wilson School, Princeton University
    Straus Fellow, NYU, 2009-10

  8. Professor Weiler,

    I join Robert Keohane and others in deploring the disregard for professional standards shown by the initial filing of the criminal complaint, and welcome the clarity and moderation of your response. Just as the UK is now considering changes to its libel regime in light of the recent European Court ruling (http://www.soros.org/initiatives/justice/focus/foi/news/mgn-uk-libel-ruling-20110124), the task with regard to France is to ensure that it does the same, following the recommendation in the Guinchard Report, mentioned by Ms Karayanidi. Of course, we all wish that the 3 March decision finds the complaint unfounded. The silver lining behind an adverse decision would be if it increased the chances of getting the question before the European Court, thus increasing pressure for legislative reform.

    Best regards,

    Bruce Broomhall
    Professor of Law, University of Quebec at Montreal
    Research Fellow, Liu Institute for Global Issues, UBC (2010-11)

  9. David Feldman

    Dear Professor Weiler,

    I join all those who consider that it was inappropriate to bring legal proceedings against you in respect of the review, and who respect, admire and support the stand you have taken. It is also hugely impressive that, in the midst of battle, you are able to offer such an interesting and balanced account of the hearing in court. I hope that good sense will prevail on 3rd March, and that you will be spared the need to petition the European Court of Human Rights (although I am confident that you would succeed in Strasbourg).

    As a comparative footnote, it may be of interest that the common-law offence of criminal libel (along with sedition, seditious libel, and obscene libel) was only recently abolished in England and Wales and Northern Ireland, by the Coroners and Justice Act 2009, s. 73.

    With best wishes.

    Yours sincerely,

    David Feldman
    Rouse Ball Professor of English Law, University of Cambridge

  10. I do not see a jurisdictional problem here.

  11. I do however see a claim in tort for malicious prosecution. I would suggest New York due to the contingent fee rule and also due to punitive damages.

    Oh, snap!

  12. But back to serious business: the bad quality of editing of the book reviewed can be blamed in part on the publisher; I believe this hearkens back to an earlier posting on the issue of one-sided contracts publishers sometimes offer.

    I have had 3 books published and edited. One editor did a brilliant job (the most obscure); the second editor did a fair job (also obscure); the famous editor… didn’t edit. I have a book forthcoming with the publisher of the reviewed book. Maybe this is my fault, for presuming that book publishers provide the editing which U.S. (non-peer reviewed!) law journals provide.

    I guess my point here is: if we are to produce books which cost roughly $10 in materials (paper binding), and which earn, say 10$ (ten percent royalties) and which sell for $100 then our editors who are pocketing 80$ ought at least to catch typos, and notice if the author simply lifted large tracts of text from publically available legislation – possibly with a facelift.

  13. […] Weiler has written a column about the experience of going to […]

  14. […] le respect de l’autonomie du champ universitaire. La critique mentionnée, cependant, a été attaquée en justice. Plus précisément, l’éditeur de la revue a été attaqué, devant un tribunal français, […]

  15. […] In the Dock, in Paris Joseph Weiler, EJIL: Talk, 1/25 […]

  16. […] In the Dock, in Paris Leave a Comment Posted by likanto on January 29, 2011 The original post can be found on http://www.ejiltalk.org/in-the-dock-in-paris/#more-2976 […]

  17. […] trial for libel in France. The verdict isn’t due back until March 3rd, but Weiler’s account of the trial is up on his journal’s blog, and it’s great […]

  18. […] written up his experience with the trial, which was last week, here.  Fascinating — and chilling — […]

  19. […] Sprache, stark betroffen zeigte. Kompliziert. Und spannend. Weiler berichtet seinerseits auf seinem Blog über den Fortgang des […]

  20. Rafael Domingo

    What is at stake here is not only the intellectual integrity of a distinguished scholar but the preservation of academic freedom for all.

    Thank you very much, Professor Weiler, for defending our rights.

    Rafael Domingo
    Professor of Law
    University of Navarra
    Spain

  21. Henning Rosenau

    Si Mrs Calvo-Goller tacuisset philosophus mansisset.

    Henning Rosenau
    Prof. for German, European and International Criminal Law and Criminal Procedure
    Law Faculty, University of Augsburg, Germany

  22. Jeremy Kingsley

    Dear Professor Joseph Weiler,

    Many times when one comments on blog postings it is to make pithy or amusing commentary. However, in this case I find myself moved to make a public statement of support for you. And perhaps more importantly thank you for taking a principled stand for academic freedom. The chase for academic tenure fills many junior academics minds, but often without thinking why it is important. Thank you for this salient reminder of what it means to uphold the noble principles of academic life.

    I hope March see these matters dismissed.

    Kind regards, Jeremy Kingsley
    Postdoctoral Research Fellow
    Asia Research Institute, National University of Singapore.

  23. Diego Duprat

    Dear Professor
    You did the right thing, and for that, you have all my support.
    I would like to emphasize your courage in defending the principle or freedom of speach and to protect the independence of academic discourse.
    Sincerely regards
    Diego Duprat
    Professor of Corporate Law
    Universidad Nacional del Sur (Argentina).

  24. Michael Keefer

    Dear Professor Weiler,
    Thank you for this lucid and dispassionate account of a shocking violation of the norms of academic discourse. I very much hope the court recognizes the complaint as unfounded and improper, and administers a stinging rebuke to the complainant.
    Michael Keefer
    Professor
    School of English & Theatre Studies
    University of Guelph
    Canada

  25. Judit Magyar

    Dear Prof. Weiler,

    I am speaking for some of us here at Waseda University in Tokyo: we were appalled by what we read about your case. Congratulations on handling this issue with gusto and dignity.
    Academic freedom seems to have far-reaching repercussions at times.

    Best,
    Judit Magyar
    Waseda University, Tokyo

  26. Anthony Arnull

    Dear Joseph
    I wish to associate myself with all those who have commended your courage in standing up to this assault on academic freedom. If there were no bad reviews, no author could take pleasure in a good review and the whole exercise would be worthless to readers. I do hope you do not have to go to Strasbourg to make what should be an obvious point.
    Best regards
    Tony Arnull, University of Birmingham, UK

  27. Dirk Voorhoof

    Dear Prof. Weiler,
    Your case blatantly illustrates the abuse that is still made of criminal law and procedure in defamation cases in Europe. But also civil law suits have been used to intimidate and to stiffle dissent or critical, robust speech. National judicial authorities in many cases have been overruled by the European Court of Human Rights, and it is obvious that a conviction in this case would be a manifest violation of your right under article 10 of the European Convention of Human Rights (freedom of expression and information), this article being considered as “Europe’s First Amendment”. It is outrageous that the author of a book initiates a criminal case because the book review is not flattering and this case is certainly to be considered as a malicious prosecution and a real attack of the freedom of academic speech. Just like many others I do hope that the court in Paris finally will let prevail the freedom of expression in this case and consider a conviction because of defamation not corresponding to a pressing social need and not being necessary in a democratic society. It would be a real shock to find out on the 3 March 2011 that precisely in Paris, 222 years after the French Revolution the philosophy itself behind enlightment and freedom of expression would be neglected.
    Looking forward to recieve the news of your acquittal,
    Prof. dr. Dirk Voorhoof, Ghent University, Belgium and Copenhagen University, Denmark (www.psw.ugent.be/dv)

  28. […] the blog of the European Journal of International Law, Prof. Joseph Weiler reports about a strange attack on academic freedom of speech. I was summoned to appear before an Examining […]

  29. […] Censorship Prof.  Joseph Weiler of NYU, and Editor-In-Chief of the European Journal Of Law, has contributed an incisive editorial regarding charges that he defamed an author through an unfavorable book review: …I was […]

  30. […] A description of the hearings and how the suit came about, as told by Professor Weiler, is available here. […]

  31. […] Therefore, even though Dr. Karin Calvo-Goller is not French, her book was not published by a French company, Professor Weiler is not French, and his review was not published in a French publication, France’s criminal justice system allowed Dr. Calvo-Goller to file a criminal libel complaint against Professor Weiler for his review, and conducted a criminal trial of Professor Weiler based on Dr. Calvo-Goller’s complaint. […]

  32. […] Yesterday I wrote a satirical piece mocking the loathsome, thuggish, and hysterical Dr. Karin Calvo-Goller, a professor who responded to a rather mildly negative book review with a criminal libel proceeding in French Court. […]

  33. […] e plotë me gjykimin e tij, editori në fjalë, e ka përshkruar këtu. Një lexim shumë interesant! Info: Eklipsi është një blog i cili ju sjell informacionet […]

  34. Dr Michel CALVO

    I am Dr Karin CALVO-GOLLER’s husband.
    Karin is not an enemy of Academic Freedom.
    And you have been mislead.

    See: http://www.calvolaw.org

    to have a complete view of what happened…

  35. […] revient à la charge : c’est aujourd’hui que sera rendu le verdict dans un procès qui oppose Joseph Weiler à l’auteur d’un ouvrage dont il a publié, dans une revue scientifique […]

  36. Dan Joyner

    Fabulous news! So pleasing that the right won out in this case!
    Perhaps the law is not always an ass after all.

  37. […] miss the background information. Additionally, don’t miss the “defendant’s” blog posts about his experience, where he includes translations of portions the judgment, as well as a […]

  38. […] and the French court, the Tribunal de Grand Instance de Paris, found for the defendant largely on technical grounds, in that they took the view that the plaintiff had been ‘forum shopping’ in an […]

  39. […] Calvo-Goller claimed the review was libelous and demanded its suppression. EJIL offered Calvo-Goller a right of reply which was declined. Since Weiler did not consider the review by Thomas Weigend libelous, he argued its removal would have seriously compromised academic freedom, book reviewing and the intellectual integrity of EJIL. Weiler informed Calvo-Goller that for these reasons he was unwilling to remove the review. A few months later Weiler was summoned to appear before an Examining Magistrate in Paris based on the complaint of criminal defamation lodged by Calvo-Goller (see http://www.ejiltalk.org/in-the-dock-in-paris/). […]

  40. […] In der FAZ wird heute über den letzten Akt im Streit um eine Rezension von Karin Calvo-Gollers Buch im European Journal of International Law berichtet. Das Gerichtsurteil ist inzwischen veröffentlicht. Das Gericht äußert sich – in der Kurzform – im Sinne der Wissenschaftsfreiheit und gegen das forum shopping. Alles weitere findet sich im Artikel der FAZ (paywall) oder in ‚NuW‘, S. 5. Ausführlich äußert sich auch noch einmal Joseph Weiler auf seinem Blog. […]

  41. Not Relevant

    As a former student of Prof. Weiler’s International Law class at NYU and now a mid-level associate in a top 10 law firm, I say throw the book at Prof. Weiler! The man gave me a C! I just don’t get his oratory style. It’s too stuffy.