Like any good traitorous socialist lefty, I am supposed to treat European culture and politics as decidedly superior to the American alternative. And I often do! But on the subject of libel laws, it seems quite clear to me that Americans have a much more sensible approach than, at a minimum, the English and the French. The appalling nature of English libel laws became known to me through McDonald’s decision to turn a couple of environmental activists into free speech martyrs with a libel suit in 1990. This was, predictably, a bit of PR fiasco for McDonalds, and many of the claims made by the activists were determined in court to be true. Still, it’s appalling that McDonalds was able to drag a couple of protesters into court for the better part of a decade, and the burden of proof fell squarely on the defendants.
In looking up the case I’m pleasantly reminded that five years ago the European Court of Human Rights agreed with me:
The ECHR ruled that the lack of official funding had effectively given rise to procedural unfairness and denied the litigants a fair trial. It was held to have contributed to an unacceptable inequality of arms with the Corporation. The court ruled that there had been a violation of Article 6.1. The award of damages ordered against the litigants was deemed disproportionate to the legitimate aim served. The court found that the damages awarded “may also have failed to strike the right balance”, The subsequent awards were £36,000 for Steel and £40,000 for Morris.
Now, via Henry Farrell, I learn the French appear to have similar issues. Henry’s post and the EJIL summary and statement are well worth reading, but the executive summary is: Karin Calvo-Goller writes a book, it recieves a negative review in the European Journal of International Law, she demands the editor take down the review from the website, he refuses, she sues him for libel, and now he will be forced to defend himself in a criminal proceeding at his own expense. The substance of her complaints seem quite specious to this non-expert on her subject, and the review itself is a pretty run of the mill negative review. In the pretrial hearing, he was told by the examining judge that she couldn’t rule on substance and the case would be going to trial. Obviously, the idea that book review editors could be subject to criminal sanction, or even defending themselves against criminal charges, could certainly have a chilling effect on free speech and academic freedom.
As with the McDonalds case, it’s difficult to grasp why the complainant finds this particular course of action wise. Even if the book review in question contained actionable libelous claims, which seems doubtful, the notoriety of effectively declaring oneself an enemy of academic freedom will surely do more damage to her reputation than a couple of unfair critical remarks in a book review.
I’d certainly be curious to hear a defense of the “burden of proof lies on the defendant” approach to libel law on the merits, because it’s not easy for me to imagine what that would look like.
In the EJIL editorial linked above, the editor who is headed to court makes the following appeals for assistance:
a. You may send an indication of indignation/support by email attachment to the following email address [email protected] 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 [email protected]
I think I’ll send in Brian Barry’s review of Nozick, and perhaps Okin on Sandel or Nussbaum on Butler.