London may still be for the moment the "libel tourism" capital of the world for affronted folk, but Paris has its strong points, too, if the case of Professor Joseph H. H. Weiler is anything to go by. A professor of law at NYU and the editor-in-chief of the European Journal of International Law, Professor Weiler was summoned to appear in French criminal court to defend himself against a complaint of criminal libel lodged by Dr. Karin N. Calvo-Goller, a senior lecturer at the Academic Center of Law & Business in Israel. The basis for her complaint? Professor Weiler approved the publication of a review of her book, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents, written by Professor Thomas Weigend, Dr. jur., Professor of Law, Director of the Cologne Institute of Foreign and International Criminal Law and currently Dean of the Faculty of Law at the University of Cologne, a review with which she disagreed and which Professor Weiler declined to withdraw upon her complaint to him.
Yes, that's right: a bad review — which actually was not as bad as all that — by a German, published by an American of a book written by an Israeli has led to action in a French court.
The story is all over the academic blogosphere, as well it might be. But you can find a quick summary in the polemic on Opino Juris, and a brief speculation about the connection to France in a piece on Conflict of Laws .net (Dr. Calvo-Goller was born in France and may be a French national). But for the full story you couldn't do better than to read the editorial [direct link to PDF] by the accused in the EJIL that the accused publishes: it is a model of a fair and full exposition of the facts, given that they all happened in print, published or otherwise.
Here you'll find, first of all, a link to the review, itself a mere four paragraphs long! Then there follows the exchange of letters, involving, among other things, an offer by Professor Weiler to publish a statement by Dr. Calvo-Goller alongside the review, an offer she declined. Finally, Professor Weiler makes an appeal for financial assistance. As you can well imagine, an appearance in a foreign criminal court — even one destined to be brief, I hope — will prove to be expensive.
I thought it was a shame that the Supreme Court of Canada upheld the offence of criminal libel in this country a few years back (under the Charter). Perhaps a deliberate, malicious and sustained attack on a person's reputation can have consequences for public order as well as for the person's private interests, but that would be extremely rare.
French law seems very paternalistic in many ways, notably in IP, but not only there. I suppose where the civil law standard has, in the place of the common law's 'reasonable man', the 'bon père de famille', one may expect some paternalism.
I would be interested in knowing if any experts in French law think that the claim has any merit.
Meanwhile the Israeli professor's actions in this case will and should do far more harm to her reputation than the book review ever would have done. She may have a hard time getting any future books reviewed at all, in the circumstances.
John Gregory comments:
A while back I submitted an article to a foreign peer-reviewed law journal and the anonymous peer reviewers' resoundingly attacked not only the article, but questioned my academic credentials. Suffice it to say that I have a "thick skin" and disregarded the pomposity and lack of collegiality and had it published in a Canadian law journal, without revision. However, as you will likely surmise, I will never submit another article to this foreign law journal again. Critical peer review is vital to maintaining the integrity of academic and professional rigour in law journals and legal book publishing. Nevertheless, some peer reviewers interpret "critical" as an open invitation to vent their academic frustrations or professional inadequacies, rather than upholding the tenets of legal writing and the free exchange of ideas.
I read the actual review by professor Weigend and I really don't think there is anything wrong with his review. While his review is not a positive one, it isn't very harsh and he doesn't attack professor Calvo-Goller at all. I sincerely hope the French court finds that this libel suit has no merit.
I understand that some reviewers may be intemperate or may choose to strut their own insecurities or vitriol or clever comments (though Prof Weigend did not do so in this case) – but that, however offensive, does not take it to the point of a criminal offence. The proper response is probably what Antonin P says – avoid the journal that uses that reviewer – or even, in a particularly egregious case, one could sue, if there are serious damages (otherwise one just draws attention to the remarks).
Can you think of a case that according to Canadian policy standard would justify a conviction for criminal libel?
Consider Paulsson v. Cooper, 2011 ONCA 150. The Court of Appeal described the facts:
[1] The respondents, The American Association for the Advancement of Slavic Studies (“Association”) and The Board of Trustees of and for the University of Illinois (“Board”), published a book review of the appellant’s book in an academic journal published in the United States, the Slavic Review. The edition of the Slavic Review containing the book review in question was distributed outside the United States, including in Ontario.
[2] The appellant, an Ontario resident, commenced a libel action in Ontario against the respondents and the author of the book review, Dr. Leo Cooper, claiming that the book review defames him as a scholar, has damaged his academic reputation, and has prevented him from advancing in his academic career.
[3] None of the defendants to the action resides in Ontario. The respondents reside in the United States, while the defendant author, Dr. Cooper, resides in Australia. Cooper has not defended this action and has been noted in default.
[4] The respondents brought a motion for an order to set aside service ex juris or, in the alternative, to stay the action on the basis that there is no real and substantial connection between the subject matter of the proceeding and Ontario, or that Ontario is not a convenient forum for hearing the proceeding. The Board also asserted that it is immune from a libel action under immunity provisions in the Illinois State Immunity Act, 110 ILCS 305.
[5] The motion judge granted the motion and ordered that the plaintiff’s action be stayed against the respondents. He concluded that the Ontario court could not assume jurisdiction in the action, and alternatively, that Ontario is not the convenient forum to try the action. For the reasons that follow, I would allow the appeal.
Let us hope that actions for libel arising from book reviews do not become common.