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. Read the rest of this entry…