Joseph Weiler in the Dock

I blogged a year ago about the ridiculous criminal-libel suit that an academic named Karin Calvo-Goller filed against NYU’s Joseph Weiler.  Today Weiler blogs (no permanent link for some reason) about the trial at EJIL: Talk!. It’s a remarkable account that should be read in full.  But here’s a taste:

Three months later I was summoned to appear before an Examining Magistrate in Paris based on a complaint of criminal defamation lodged by the author. Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? Libel tourism – libel terrorism to some — is typically associated with London, where notorious high legal fees and punitive damages coerce many to throw in the towel even before going to trial. Paris, as we would expect, is more egalitarian and less materialist. It is very plaintiff friendly.

In France an attack on one’s honor is taken as seriously as a bodily attack. Substantively, if someone is defamed, the bad faith of the defamer is presumed just as in our system, if someone slaps you in the face, it will be assumed that he intended to do so. Procedurally it is open to anyone who feels defamed, to avoid the costly civil route, and simply lodge a criminal complaint.  At this point the machinery of the State swings into action. For the defendant it is not without cost, I discovered. Even if I win I will not recover my considerable legal expenses and conviction results in a fine the size of which may depend on one’s income (the egalitarian reflex at its best). But money is not the principal currency here. It is honor and shame. If I lose, I will stand convicted of a crime, branded a criminal. The complainant will not enjoy a windfall as in London, but considerable moral satisfaction. The chilling effect on book reviewing well beyond France will be considerable.

I disagree with Weiler about one thing.  A conviction, which I hope is unlikely, will not brand him a criminal.  There will be no shame or harm to his reputation.  Indeed, I feel nothing but admiration for Weiler’s courage — particularly his unwillingness to contest the French court’s jurisdiction or to engage with the substance of the reviewer’s criticisms of book, as he explains in the post.  Win or lose, the only shame here belongs to Calvo-Goller, his accuser.

Alas, it is clear that shame is one thing she is incapable of.