Abuse of ‘forum shopping’ in defamation case and freedom of academic criticism

By Dirk Voorhoof, Ghent University / Legal-Human-Academy*

On March 3, 2011, the Tribunal de Grand Instance de Paris issued its decision in a case that has alarmed journal editors and reviewers, being afraid it could  have a chilling effect on scholars’ and editors’ willingness to publish book reviews. The case concerns the  criminal libel case against professor Joseph Weiler based on a complaint by Dr. Karine Calvo-Goller. The case was brought against Weiler in his capacity as editor-in-chief of the European Journal of International Law (EJIL) and its associated Book Review website http://www.GlobalLawBooks.org. It was brought as a result of the refusal by Weiler to remove a review by professor Thomas Weigend (University of Cologne, Law Faculty), critical of a book written by Dr. Karin Calvo-Goller, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents (Martinus Nijhoff Publishers).

Calvo-Goller claimed the review was libelous and demanded its suppression. EJIL offered Calvo-Goller a right of reply which was declined. Since Weiler did not consider the review by Thomas Weigend libelous, he argued its removal would have seriously compromised academic freedom, book reviewing and the intellectual integrity of EJIL. Weiler informed Calvo-Goller that for these reasons he was unwilling to remove the review. A few months later Weiler was summoned to appear before an Examining Magistrate in Paris based on the complaint of criminal defamation lodged by Calvo-Goller (see http://www.ejiltalk.org/in-the-dock-in-paris/).

The complaint of criminal defamation against the editor-in-chief of the European Journal of International Law was reported and explained on the EJIL’s website and in an Editorial of EJIL 2010/4 under the title ‘Book Reviewing and  Academic Freedom” (for more details see http://www.ejil.org/pdfs/20/4/1952.pdf). Many reactions followed on a blog of Weiler on EJIL’s website, mostly expressing a deep concern regarding the freedom of book reviewing and academic speech.

The Paris Tribunal has now delivered its judgment in this case, paying attention to the abuse of ‘forum shopping’ and recognizing the importance of protecting freedom of academic criticism.

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.”

The judgment contains interesting observations, arguments and statements related to the abuse that is made in this case, as in many cases, of forum shopping in defamation proceedings, also known as ‘libel tourism’, especially in the United Kingdom. As the judgment rightly points out such claims have the aim of placing the defendant journalists, writers, newspapers or publishers as much for legal reasons as for practical reasons in the least favorable situation. This is a situation which the Paris Tribunal pertinently describes as an abuse of forum shopping and hence amounts to an abuse of pursuing a criminal procedure.

More generally it is to be underlined that the acceptance of forum shopping in defamation cases creates a manifest danger of a chilling effect on freedom of expression and information. In such circumstances journalists, writers, publishers, NGOs, bloggers, etc., run the risk of being placed in a very unfavorable position needing to defend themselves against claims of defamation or libel in jurisdictions they are not familiar with, and have lower standards on the right to freedom of expression and information. Moreover, there is the risk of high amounts of civil damages, if not criminal convictions, apart from the extra financial burden in terms of financial costs and expenses for having qualified defense lawyers for the proceedings before the judicial authorities in the country chosen by the plaintiffs.

Furthermore the Paris Tribunal in its judgment of 3 March 2011 emphasizes that academic criticism is an essential element of academic freedom and freedom of expression. It is reassuring for the academic world and for editors of scientific journals to find the principle confirmed that the expression of a scientific opinion on a book, expressed in a book review published in an academic journal, is to be highly protected. The Tribunal also rightly reiterates the principle that all authors of intellectual works expose themselves to this kind of criticism, scrutiny and comment.

The judgment is undoubtedly in line with the protection guaranteed to freedom of expression and freedom of academic speech by International Conventions, the EU Charter of Fundamental Rights (art. 11 and 13) and Article 10 of the European Convention on Human Rights as applied by the Strasbourg Court (see also D. Voorhoof, “Freedom of Expression under the European Human Rights System. From Sunday Times (n° 1) v. U.K. (1979) to Hachette Filipacchi Associés (“Ici Paris”) v. France (2009)”, Int.Am. & Eur.Hum.Rts.J., 2009/1-2, pp. 3-49 (http://www.jurisquare.be/?publicationCode=IAEHR)

Source: www.ejitalk.org and http://www.ejiltalk.org/category/ejil-analysis/

See also : http://www.law.kuleuven.be/linc/onderzoek/ap6-academicfreedom-final-dec2010.pdf

*Professor Voorhoof is affiliated to both Ghent University (Belgium) and Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media. Further information on Professor Voorhoof can be found on his personal webpage here.

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