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.