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Home Human Rights Archive for category "Freedom of Expression" (Page 4)

In the Dock, in Paris – The Judgment

Published on March 4, 2011        Author: 

UPDATE: The full text of the Judgment is now available below; some minor technical issues were fixed.

UPDATE 2: An unofficial translation of the Judgment into English is now available here.

On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in the Criminal Libel Case brought against me based on a complaint by Dr Karine Calvo-Goller. It would appear that the Court ruled in our favor on all issues.

As will be recalled, the case was brought in my capacity as Editor in Chief of the European Journal of International Law and its associated Book Review website www.GlobalLawBooks.org. It was brought as a result of my refusal to remove a Review, written by the distinguished German academic Thomas Weigend, critical of a book written by Dr Karin Calvo-Goller. Dr Calvo-Goller claimed the Review was libelous and demanded its suppression. I offered her a right-of-reply which was declined. Since I did not consider the Review libelous its removal in my view would have seriously compromised academic freedom and the intellectual integrity of EJIL and book reviewing generally. For full details see here.

The Trial took place in Paris on January 20th, 2011 – see here.

Represented by Maitre Thierry Marembert and Cécile Labarbe of the Paris Law Firm Kiejman & Marembert, we made two principal arguments in defense: First, that the Court should not exercise jurisdiction — the case being too remote from France; and second, that it should rule that in the circumstances of the case, initiating a criminal complaint amounted to an abuse of process by the Complainant.

In its Judgment, the Court upheld both claims. On the jurisdictional issue, a highly technical part of the Judgment, it seems to have ruled that although available on the internet, the Complainant did not prove to its satisfaction that the Review was actually accessed in France during the period within which a criminal complaint had to be filed. The full Judgment in French and a translation will be posted on the EJIL blog – www.EJILtalk.org in the next few days. [UPDATE: The full text of the Judgment in French is now available here.]

In ruling on the issue of abuse of process by the Complainant, the Court was able to address the merits of the case. The following are excerpts from the Judgment in unofficial translation.

“….As regards the choice made by the Complainant to invoke French criminal proceedings, though [Karine Calvo-Goller] holds dual French and Israeli nationality, she resides and works in Israel, the book which is the subject of proceedings was written in English, as was the Book Review; [it was] published on an American website, linked to an American university at which Joseph Weiler works; [the Complainant] explained to the Court that she chose to use the French rather than the American or Israeli systems for financial reasons –the cost of proceedings would have been more expensive for her- as well as for reasons of expediency, being of the view that only French law offered her a chance of success;

… Karine Calvo-Goller thus acknowledges having engaged in what one can call “forum shopping”, that is to say a worldwide search, for the legal system which seems the most favorable to the person initiating legal proceedings, and which places her opponent, as much for legal reasons as for practical reasons — geographical or cultural remoteness — in the least favorable situation….[T]he artificial choice in this case, of the French legal system, coupled with the choice of pursuing a criminal procedure by means of a complaint to an Investigating Judge resulting in both opprobrium and significant costs to the accused, characterizes the abuse of these proceedings;

… Karine Calvo-Goller failed to comprehend [respect] the scope of French Press law stating that the Review which was made the subject of the proceedings could be held to be defamatory…. [I]n effect, the Review of her book does not contain words damaging her honor or her reputation, and only expresses, what is more, in moderate terms, a scientific opinion on [her book] without ever exceeding the limits of free criticism to which all authors of intellectual works expose themselves;

… The bad faith of the Complainant –a lawyer, moreover one familiar with French law given her indication that she pursued her law studies in France- is therefore undeniably established;

….It is therefore with just cause, that Joseph Weiler believes that the [Complainant] has abused her right to bring legal proceedings, on the one hand by initiating an action for defamation in relation to words that do not go beyond the limits of academic criticism, an essential element of academic freedom and freedom of expression and, on the other hand, by artificially bringing proceedings through the French criminal justice system.”

Considering the resulting harm suffered by the accused, he will be justly compensated by judgment against the Complainant requiring her to pay to him the sum of €8,000.” [about US$ 11,000]

I hope this brings this sad saga to an end though it should be noted that the Complainant has a right of appeal.

Be that as it may, I would like to thank my legal team, the Dean and faculty of NYU School of Law for moral and material support, and the many letters of encouragement by friends and strangers from around the world. Naturally, any damages will be donated to a charitable cause. As for the Judgment, I will follow the wisdom of the Sages, “Whoever Adds, Detracts.”

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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. Read the rest of this entry…

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Philippine Supreme Court Silencing Dissent?

Published on November 9, 2010        Author: 

Given the wide coverage of the Calvo-Goller/Weigend/Weiler saga, EJIL Talk readers will be well aware of the topic of challenges to academic freedom. This post seeks to draw readers’ attention to another instance involving risks of an altogether different degree, and to raise awareness for what seems to be a worrying attempt, by a court, to silence dissent among academics: the Court in question is the Philippine Supreme Court, which is threatening 37 members of the University of Philippine’s College of Law with disciplinary sanctions for contempt – a charge that may eventually result in the loss of their bar licenses. This is only the latest twist in legal proceedings that from the outside seem altogether surreal, but that involve risks of a very real nature to some of our colleagues. So what is it all about, and why should we care?

What it’s about

The contempt proceedings have their origin in the proceedings of Isabelita Vinuya et al. v. Executive Secretary et al., in which the plaintiffs sought an order requiring the Philippine government to seek reparations from Japan for the mistreatment of Philippine “comfort women” during World War II. The Supreme Court declined the request, and in the course of its decision discussed concepts such as jus cogens and obligations erga omnes. Its discussion was curious because it quoted passages from works by Dr Mark Ellis, Professors Evan Fox-Decent and Evan Criddle and myself without properly attributing them, and, it seems, without really having understood them – hence attempts to apply jus cogens or obligations erga omnes meaningfully were presented as evidence of their questionable status.

Read the rest of this entry…

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JHHW to Stand Trial in France for Criminal Libel – Refusal to Remove a Bookreview which Displeased the Author of the Reviewed Book

Published on February 11, 2010        Author: 

The latest issue of EJIL is now out. The Table of Contents is posted below, but we wanted to draw EJIL: Talk! readers’ attention to the Editorial, which concerns an attempt in France to prosecute EJIL’s Editor in Chief for criminal libel. A link to the full editorial is posted below.

Editorial 20 4

The below Table of Contents is available online at: http://ejil.oxfordjournals.org/content/vol20/issue4/index.dtl

Editorial

JHHW
Editorial: Book Reviewing and Academic Freedom
Eur J Int Law 2009 20: 967-976; doi:10.1093/ejil/chp114 [Full Text] [PDF]   

EJIL: Debate! Anniversary Edition

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