Criminal Libel for Publishing a Critical Book Review? Seriously?

by Kevin Jon Heller

That’s the allegation made by Dr. Karin N. Calvo-Goller, a senior lecturer at the Academic Center of Law & Business in Israel, against Joseph H.H. Weiler, a professor at NYU who is the Editor-in-Chief of the marvelous European Journal of International Law.  In 2007, globallawbooks.org (GLB), a book-review website associated with EJIL that Professor Weiler also edits, published a negative review of Dr. Calvo-Goller’s book The Trial Proceedings of the International Criminal Court: ICTY and ICTR Precedents written by Professor Thomas Weigend, who is the Director of the Cologne Institute of Foreign and International Criminal Law and currently the Dean of the University of Cologne’s Faculty of Law.  Dr. Calvo-Goller responded by writing a letter to Professor Weiler in which she claimed that Professor Weigend’s review was libelous and demanded that Weiler remove the review from the GLB website.  Professor Weiler patiently addressed each of Dr. Calvo-Goller’s criticisms of the review and — not surprisingly — refused to remove it.  He did, however, offer to publish Dr. Calvo-Goller’s response alongside Professor Weigend’s review.

More than a year later, Dr. Calvo-Goller filed a complaint in a French court accusing Professor Weiler of criminal libel.  As a result, Professor Weiler is scheduled to stand trial on June 25.  The fact that he will stand trial does not mean that the court has found Dr. Calvo-Goller’s complaint meritorious; according to Professor Weiler, the Examining Judge explained to him that “unlike other areas of the criminal law she had no discretion to examine the merits of the complaint…  [I]n libel cases, all investigations of the merits of the case are exclusively reserved for the Criminal Court itself and, therefore, as a direct consequence of the complaint being filed, it was necessary that I be referred to the Court for trial.”

With due respect to French law, it is shocking that a defendant can be forced to suffer the time, expense, and emotional strain of a criminal trial based solely on an unexamined libel complaint.  But it is even more shocking — and completely indefensible — that Dr. Calvo-Goller would submit the complaint in the first place. Although I have not read her book, I have read Professor Weigend’s review of it and Professor Weiler’s subsequent correspondence with her.  (Which is available here.)  The review is actually quite mild (and only four paragraphs long) — Dr. Calvo-Goller obviously has very thin skin.  More importantly, insofar as Professor Weiler accurately recounts them, her criticisms of the review seem to be completely without merit. To begin with, none of the factual claims in Professor Weigend’s review actually appear to be false.  At most, the review and Dr. Calvo-Goller’s response reflect legitimate differences of opinion over various difficult issues in international criminal law.

Moreover, insofar as any of Professor Weigend’s claims might be deemed false, Dr. Calvo-Goller presents absolutely no evidence that he made them knowing of their falsity.  Indeed, anyone who knows Professor Weigend — as I do; he wrote the Germany chapter for my forthcoming Handbook of Comparative Criminal Law — could not possibly believe such a ridiculous allegation.  Professor Weigend is a superb scholar and an unfailingly generous person. I cannot imagine that he would ever deliberately try to harm a scholar’s reputation, no matter what he thought of that person’s work.  (And again, the review is not particularly critical.)

Finally, speaking as someone who was the book-review editor of the New Criminal Law Review for nearly two years, I think it is safe to say that regardless of Dr. Calvo-Goller’s opinion of Professor Weigend’s review, there is absolutely no justification for filing criminal charges against Professor Weiler, who simply published the review. A more direct attack on academic freedom is difficult to imagine.  Book-review editors have to be free to publish negative reviews; it is impossible to take seriously a journal that only publishes reviews of books its reviewers like.  Shilling for a book is the publisher’s responsibility; the responsibility of a book-review editor is to commission a suitable expert to review the book and then to publish that review regardless of whether it is positive or negative.

Despite the evident problems with France criminal-libel laws, I have enough faith in the French criminal-justice system to assume that Dr. Calvo-Goller’s complaint will go nowhere.  And I know for a fact that Professor Weiler’s reputation is sufficiently sterling that he will emerge unscathed from this whole sordid affair.  But it is still appalling that he has to suffer the affair in the first place.  Shame on Dr. Calvo-Goller for her petty thuggery.

http://opiniojuris.org/2010/02/12/criminal-libel-for-publishing-a-critical-book-review-seriously/

6 Responses

  1. Readers may also note that the EJIL editorial in which this entirely bizarre and frankly shocking tale is recalled also notes a number of things that people can do to support Prof. Weiler including writing a letter of support that may have a bearing on proceedings.
    As the book reviews editor of the Irish Yearbook of International Law I share Kevin’s sentiments as to the dangers associated with such actions for book review editors and for publications carrying reviews. However, I think this can be safely assigned to the box of ‘extraordinary’ and hope that editors and reviewers, who carry out such an important academic function, will not allow this to impact on their work.

  2. Isn’t that what academia is all about? Throwing different ideas out, having them discussed back and forth, and then someone then use that to construct new theories? What is wrong with Dr. Calvo-Goller? This (in the long run) would seriously damager his or her reputation as a scholar.

  3. Not the exact same issue, but–Is not this essentially the case with UK libel law?  Perhaps not the criminal aspect (is it that which troubles you?).  Would not the following statement of yours be equally true even if you removed the word “criminal”?: “it is shocking that a defendant can be forced to suffer the time, expense, and emotional strain of a criminal trial based solely on an unexamined libel complaint.”  I am not disagreeing with you in the least that it is appalling that such a case would be brought, but I would extend that outrage even to civil libel suits brought in jurisdictions where the burden is on the defendant to prove the truth of their allgedly defamatory remarks.

  4. Another interesting issue raised by this case is one of international jurisdiction. One wonders why a French court should decide on an alleged criminal offence where all parties involved are neither French nationals, nor live in France. I understand that Ms Calvo studied and worked in France, but if she has left to Israel, that should not be relevant.
     
    Of course, the website is available in France, so the “victim” might argue that her reputation suffered in France. She wrote at least one book in French, so she may want to argue that she does have a “French” reputation to protect. But both the new book and the review are in English so … 

  5. Fortunately, the simplest solution is to simply refuse to appear. If the French rules for in absentia trials are anything like the Dutch, the court would normally find that the prosecution’s claims are patently without merit, and dismiss the case even though the defendant did not appear.

  6. Absence makes no sense at all, one day professor Weiller will come to Europe and I assume he may under such circumstance be delivered by police to the court.

    He travels a lot through Europe and it is better for him to come, definitely.

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