In a new blog feature, “Case Watch,” staff of the Open Society Justice Initiative provide quick-hit analysis of recent notable court decisions that relate to their work to advance human rights law around the world.
French criminal courts recently resolved an unusual case, which might have had a chilling effect on academic speech, with a judgment that should be welcomed by scholars everywhere.
Karin Calvo-Goller, the author of a book about the International Criminal Court, brought a criminal claim for public defamation in French courts, claiming that a critical book review damaged her honor and reputation. The target of her claim was New York University law professor Joseph H. H. Weiler, who posted the review—which was written by a contributor—on Global Law Books, an American website featuring critiques of scholarly works.
Although Calvo-Goller is a French citizen, she also has Israeli citizenship and lives and works in Israel. The book and the review were both written in English and the website is American. Given these elements of the case, the question arose as to why this dispute was brought as a criminal complaint in France.
French law does consider that public defamation might originate from a website hosted in another country, since the place of publication can include any place where the written statements were read or heard. To qualify, the author would have to prove that the written material was actually accessed or consulted in France. Calvo-Goller failed to do so, resulting in a lack of jurisdiction in France.
However, the court went further and examined whether the author’s choice to bring the claim in France was an abuse of process. Calvo-Goller confirmed that she had chosen France because the costs were lower, and she felt there was more possibility of success in France. Her choice to bring a criminal claim, and to bring it in a jurisdiction with such a tenuous connection to the case, forced the defendant, Professor Weiler, to bear the trouble and expense of defending himself in criminal court in France.
The court also examined whether, on the merits, the book review was defamatory, and ruled that it did not exceed the level of criticism that any author of an intellectual work would be exposed to. It did not, therefore, damage the author’s honor or reputation and her claim of criminal defamation had no merit.
Thus, the court found that the choice of jurisdiction, choice of a criminal claim, and lack of merits of the claim together constituted an abuse of process, for which the defendant should receive compensation.
Had the court found for Calvo-Goller, it might have seriously dampened the freedom of academics and others to critique scholarly works. It was especially surprising that such a case was brought by a fellow member of the scholarly community, which relies on the academic freedom which was, in some ways, under attack in this matter.
The decision reinforces jurisprudence pursued by the Open Society Justice Initiative, which has worked to highlight the burdens that forum-shopping in libel cases can impose on publishers and the damaging effect that such cases can have on freedom of expression.
The European Court of Human Rights recently decided in the case of MGN Ltd v UK—in which the Justice Initiative and others submitted third party briefs—that it was important to protect NGOs and small publications from the chilling effect of excessive litigation costs in libel proceedings.
This new judgment reiterates that freedom of expression protected by Article 10 of the European Convention on Human Rights requires procedural protection from excessive fees and litigants who abuse the legal process.
Weiler’s own response to the case, along with an unofficial English translation of the decision, is available on the blog of the European Journal of International Law.
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