Wednesday, August 11, 2010

Academic Freedom, Book Reviews and Ruining your Reputation Through Libel Law

I usually keep this as a travel-blog type blog, but today I thought I'd write a post about an academic issue that, by virtue of its bizarre facts, makes for interesting reading by just about anybody. Its also something that just demands attention being called to it.

A number of us LLD students are engaged in writing reviews of academic books for publication in journals. One topic that came up in one of our group discussions was how far one should go in criticizing a book one is reviewing.

Our attention was directed to this little review of a book written by Dr. Karin Calvo-Goller on the subject of trial proceedings at the ICC (International Criminal Court):

Its a really short review that, I'm sure most will agree, could be described as "mildly critical" of the book. Its not overly harsh in tone and, as far as reviews go, isn't particularly noteworthy or readable. So why was our attention drawn to it?

A few months after publishing the above, Joseph Weiler, the editor of the website that published the review, published this fascinating piece in the European Journal of International Law (which he also publishes):

I recommend reading it because, well, frankly its a real "page-turner". In brief, Dr. Calvo-Goller, after reading the above-linked critical review of her book, wrote to Prof. Weiler demanding that he remove the critical review of her book, making a number of allegations against the reviewer and the content of the review. Prof. Weiler, finding nothing wrong with the review that would justify its suppression, politely refused, but offered Dr. Calvo-Goller the opportunity to publish a rebuttal to the review that would appear alongside it - which seems an absolutely reasonable way to solve the problem.

A year later, Prof. Weiler discovers that he is facing criminal libel charges in France which were initiated by Dr. Calvo-Goller over his publishing and refusing to remove the review. Its worth mentioning that Prof. Weiler lives and works in New York, Dr. Calvo-Goller lives and works in Israel and the writer of the review lives and works in Germany. In other words nobody involved has any substantial link to France and the reason criminal proceedings were brought there seems to be simply that it has the most convenient judicial system for Dr. Calvo-Goller to bring them in. In civil litigation "forum shopping" is a well known and discussed issue, but in criminal law it is much less so.

Anyway, Prof. Weiler's article provides a really good review of the facts and correspondence leading up to the bringing of the criminal proceedings against himself. He was supposed to go to trial in June, but it was postponed until January of next year.

As his article (and numerous blog entries and other web sources) note, this case is a real threat to academic freedom. I can't agree with him more about how objectionable the whole thing has been.

Less commented upon but equally interesting has been the affect of the case on Dr. Calvo-Goller's reputation. Its interesting that people sometimes fail to understand that strictly enforcing one's legal rights (real or perceived) can, even if one wins the case, totally defeat the purpose of having initiated the litigation in the first place.

Its clear from the correspondence from Dr. Calvo-Goller (reproduced in Prof. Weiler's article) that her main concern was the threat to her professional reputation that a negative review could produce. So she got into this conflict with Prof. Weiler and sued him, forcing him into a corner where his only avenue was to make a public appeal for assistance in regard to the action she had initiated against him.

And now where is her reputation? Its worth remembering that the original review was a tiny, not particularly noteworthy (or even well-written) piece on a relatively obscure website. In other words, the damage to her reputation was probably almost non-existent to begin with and if she had taken up Prof. Weiler's offer to publish a rebuttal probably would have been nothing at all.

Now, however, if you run her name through a Google search (which may provide a sort of proxy for her public reputation) the first page (with 10 "hits") gives you her official web page from her university and a page from the publisher of her book. Another is the review of her book linked above. The other 7 hits are all related to this scandal between her and Prof. Weiler. None of those 7 take her side and pretty much all make her look - well, the threat of libel litigation against myself makes me reluctant to really speak my mind but suffice it to say her reputation suffers greatly in all of them. The second page of hits (there are more than 3,000 in total) is all pages critical of her. Google's "image" results are a bit more imaginative. The first shows her official photo from her university's homepage. The next one shows this same image spliced together with a medieval image of a book-burning. The next one shows an image of a character from the Simpson's known as "the critic" who was a sort of Roger Ebert parody on the show.

I certainly refrain from making any judgment about Dr. Calvo-Goller's professional skill and reputation. Certainly it seems that she is a respected authority within her field. But in terms of public reputation, judging solely from the results of my Google search, turning this from a simple private dispute into a public battle in the courts was a pretty horrible mistake.

This sort of relates to a debate that asks just how rational most litigation actually is. A lot of economics literature is based on the assumption (which they of course acknowledge to be imperfect) that people use the legal system to advance their interests in a rational way. By "rational" they mean people make an ex ante estimate of the benefits of litigation, weigh it against the probable costs and then only pursue it if the benefits outweigh the costs.

But as this case demonstrates, even for a person with extensive legal education it is very difficult to accurately estimate the drawbacks that recourse to the courts can entail. The result is a court case that is completely irrational on its face. Even if she wins, she loses.

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