Many others already have written about the worrisome case of Professor Weiler, an NYU law professor who is being haled before a French criminal court to answer for the "crime" of hosting an academic book review that displeased the author of the book in question. I'll add my voice to the chorus because Professor Weiler's appeal for assistance (below) deserves the widest possible dissemination, and because the case is another object lesson on the importance of legal protection for intermediaries in preserving some modicum of freedom of expression online.
When it comes to promoting a free and open environment for online speech, Professor Weiler may not be on the same level as Google, convicted in an Italian court for displaying a user-generated video, but he is nonetheless being targeted for hosting another's speech, and his case could have a serious impact on sharing of academic expression online. If Professor Weiler can be held criminally liable in a foreign country for publishing this book review, I foresee a serious chilling effect on the willingness of others to provide an online platform for this important form of academic discourse going forward. As a precedent, it would put the editor in an intolerable position of choosing between censoring his/her colleague's work based on nothing more than the complaining party's say-so and facing expensive, liberty-threatening criminal proceedings in a distant locale.
It's also a classic example of so-called "libel tourism," which some states have moved to address. U.S. law provides robust protections in libel cases that other nations, including France, generally do not. I'd love input from readers in the comments about the specifics of French libel law, but the U.S. protections that come to mind in this scenario include protection for statements of pure opinion and the requirements of proving the statements were false and showing actual malice. Putting aside the First Amendment's protections, under U.S. law the whole case likely would be thrown out because of Section 230 of the Communications Decency Act. Whether France recognizes any of these protections, there appears to be no meaningful mechanism for disposing of cases at an early stage in the proceedings based on the legal merits (not terribly surprising because the sharp common law distinction between pre-trial and trial is not recognized in many civil law jurisdictions). It's hard not to posit that the complaining party chose to file a criminal complaint in France, where neither Professor Weiler nor she lives or works, in order to exert the maximum amount of pressure on him to take down the critical review.
Here's the story (from our database entry, France v. Weiler):
In September 2008, New York University law professor Joseph Weiler was summoned to appear before a French Examining Judge in connection with a complaint of alleged criminal libel made by Dr. Karin Calvo-Goller, a senior lecturer at the Academic Centre of Law and Business in Israel. Professor Weiler will appear for trial before the Paris Criminal Tribunal in June 2010.
Professor Weiler is the editor in chief of the European Journal of International Law and the affiliated book review sites, Global Law Books and European Law Books. In 2007, Global Law Books published a book review written by Professor Thomas Weigend, Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne. Professor Weigend reviewed Dr. Calvo-Goller's book, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents, and criticized it as an "exercise in rehashing the existing legal set-up" and "unproductive," among other things.
In June 2007, Dr. Calvo-Goller wrote to Professor Weiler in his capacity as editor of Global Law Books, requesting that he remove Professor Weigend's review from the site. Her letter detailed several perceived factual inaccuracies in the review, claiming that it went "beyond the expression of an opinion, fair comment and criticism" and contained "false factual statements which the author of the review, a professor of criminal law, could not reasonably believe to be true." It also claimed that "[t]he review is an indirect insult to former ICTY and actual ICC officials, defense counsel of the ICTY and ICTR, who took the time to read and comment on previous drafts of the book."
In a response to Dr. Calvo-Goller, Professor Weiler declined to remove the review, expressing his sympathy for Dr. Calvo-Goller's hurt feelings, but also pointing out the unorthodox character of the request:
I have seen all manner of reviews and from time to time received letters from unhappy authors. In these long years of experience I have never received a letter such as yours both in content and tone. It departs from what in my view are considered common conventions of academic discourse and academic publication.
. . .
It is a very extreme request to ask for a critical review to be removed. I could imagine acceding to such a request only in most egregious circumstances of, say, bad faith, conflict of interest etc. In reviewing a complaint such as yours the task of the editor is not to engage in a de novo review, but to assess whether the review falls into one of those extreme categories of egregious unreasonableness.
After noting Professor Weigend's distinguished professional credentials and addressing each specific factual/substantive contention in turn, Professor Weiler concluded that removing the review was not justified:
My conclusion from this preliminary enquiry is that the heavy burden needed in my eyes to suppress a book review has not been met. In fact not even a prima facie case has been made. I found nothing to impugn the integrity or professionalism of the reviewer and, independently of whether or not I share his opinions or conclusions on your book, I must decline your request to suppress the book review by removing it from the site.
Professor Weiler also explained that he would forward Dr. Calvo-Goller's comments to Professor Weigend and would consider a request by Professor Weigend, if any, to change the review. Professor Weiler also pointed out the comment feature on the website and suggested that it would be "perfectly in order for you to write a comment which, after editorial approval, could be posted on the website and seen by anyone who reads the review."
Professor Weigend declined to make any changes, Dr. Calvo-Goller posted no comment, and Professor Weiler stood by Professor Weigend's decision. And that was that until Professor Weiler ended up before the French Examining Judge, who told Weiler that her role was purely formal and that the merits could only be addressed by the Criminal Court itself at trial, set for June 25, 2010.
Professor Weiler's Editorial
Professor Weiler published a thoughtful editorial on the case in the most recent edition of EJIL, entitled "Book Reviewing and Academic Freedom," which reproduces his letters back-and-forth with Dr. Calvo-Goller in their entirety and gives his perspective on the matter. Displaying surprisingly little indignation and speaking with great eloquence, Weiler sums up well the threat to academic freedom this case poses:
Consequently, I am saddened by the actions of Dr Calvo-Goller. I believe that in the circumstances of this affair, her action of instigating a criminal libel case against me for refusing to remove the book review is misguided and inconsistent with the most fundamental practices of all academic institutions with which I am familiar and with traditional academic discourse. It is not for me to criticize the French legal system under which I will stand criminal trial, but I would simply emphasize that the fact of being referred to trial before a criminal court does not, unlike many other systems, carry the implication that any public authority in France has concluded that there is any substantive merit in the complaint brought by Dr Calvo-Goller. Rather, the referral by the state follows automatically from the Criminal Complaint filed by Dr Calvo-Goller.
I very much hope that we will prevail before the Criminal Tribunal of Paris. Any other result will deal a heavy blow to academic freedom and change the landscape of book reviewing in scholarly journals, especially when reviews have a cyber presence as is so common today. Even if we do, the very fact of being subject to a criminal process by French public authorities and having to undergo a criminal trial in these circumstances coupled with the heavy financial burden of defending such a case – expenses which are in large part not recoverable even if acquitted constitutes a serious chilling effect on editorial discretion, freedom of speech and the very important academic institution of book reviewing. When the dust settles it may well be worth raising the question whether the French law which so easily allows a private complaint to become a public prosecution well balances the various competing interests in cases such as this. We would hope to hear from our French colleagues and readers.
The Jurisdictional Wrinkle
What makes the case all the more disturbing is that, as Gilles Cuniberti of Conflict of Laws.net points out, France's stake in the whole affair is rather limited. Professor Weiler lives/works in New York, Professor Weigend in Germany, and Dr. Calvo-Goller in Israel (though she was born and studied in France and may be a French national). The book review was published in English for an English-speaking audience.
French law governs offences committed wholly or partially in France, so, according to Cuniberti, the issue is "whether a website accessible in France entails that alleged libel on the site is committed in France for the sole reason that the site is accessible there." Seems like a pretty thin reed to hang the whole matter on, and Cuniberti writes that recent French case law suggests the answer may be "no," but nothing is impossible in the fantasy land of international Internet jurisdiction. And a tenuous connection is nothing new in libel tourism cases.
An Appeal for Assistance
Now, we finally get to the important part. In his editorial, Professor Weiler appeals to readers for assistance in advance of the trial. I encourage CMLP readers with an interest in academic expression to write in support of Professor Weiler's cause. Here's what he has in mind:
a. You may send an indication of indignation/support by email attachment to the following email address EJIL.academicfreedom@Gmail.com Kindly write, if possible, on a letterhead indicating your affiliation and attach such letters to the email. Such letters may be printed and presented eventually to the Court. Please do not write directly to Dr Calvo-Goller, or otherwise harass or interfere in any way whatsoever with her right to seek remedies available to her under French law.
b. It would be particularly helpful to have letters from other Editors and Book Review Editors of legal and non-legal academic Journals concerned by these events. Kindly pass on this Editorial to any such Editor with whom you are familiar and encourage him or her to communicate their reaction to the same email address. It would be especially helpful to receive such letters from Editors of French academic journals and from French academic authors, scholars and intellectuals.
c. Finally, it will be helpful if you can send us scanned or digital copies of book reviews (make sure to include a precise bibliographical reference) which are as critical or more so than the book review written by Professor Weigend – so as to illustrate that his review is mainstream and unexceptional. You may use the same email address EJIL.academicfreedom@Gmail.com