Academic book review taken to court

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We've previously covered the British Chiropractic Association's libel suit against Simon Singh, and the successful effort by Nemesysco to force a critical article to be withdrawn from the International Journal of Speech, Language and the Law. Both of these cases involved the peculiar situation of English libel law, which (in the opinion of many) makes it too easy for wealthy plaintiffs to bully authors and publishers into silence.

An interesting case now in process involves an even more straightforward threat to intellectual discourse, in that both the plaintiff and the defendent are academics, and the contested writing is a critical book review in an academic journal. And this time the court is in France, not England.

You can read about the whole story in an editorial by Joseph Weiler, "Book reviewing and academic freedom", The European Journal of International Law, 20(4):

Readers of EJIL will be aware of the two book review websites which have been associated for some time with this Journal and of which I am, too, Editor-in-Chief: www.globallawbooks.org and www.Europeanlawbooks.org. You will find links to them on the very Homepage of www.ejil.org and www.ejiltalk.org. On 25 June 2010 I will stand trial before a Paris Criminal Tribunal for refusing to remove a book review written by a distinguished academic to which, however, the author of the book in question took exception. The matter is of serious concern to EJIL, but more generally to academic book reviewing in general.

The book in question is Dr Karin N. Calvo-Goller, The Trial Proceedings of the International Criminal Court. ICTY and ICTR Precedents, Martinus Nijhoff Publishers, 2006. The (largely) negative review was by Professor Thomas Weigend, "Professor of Law, Director of the Cologne Institute of Foreign and International Criminal Law. Director of the Cologne Institute of Foreign and International Criminal Law and currently Dean of the Faculty of Law at the University of Cologne".

I have no opinion on the merits of  Calvo-Goller's criticisms of Weigend's review. [The editor] Weiler's offer to allow her space to rebut the review strikes me as generous, appropriate, and a better deal than most reviewed authors get:

It would be perfectly in order for you to write a comment which, after editorial approval, could be posted on the website and seen by anyone who reads the review.

Dr. Calvo-Goller's decision to go forward with a legal case, in contrast, strikes me as a very bad thing. Most academic journals operate on a financial shoestring. If any significant fraction of the recipients of negative reviews — or negative evaluations in the literature review sections of research papers — decided to bring suit, most such journals would be driven out of business quickly, even if they won all the cases.

Despite the best efforts of editors, reviews and other discussions in scholarly, scientific and technical journals are not always accurate and not always even fair. (And frankly, editors don't always put as much effort as they ideally should into checking such things, either because they trust the reviewer, or because they agree with the reviewer's conclusion, or because they're too busy with other things.)

But the law courts are surely a terrible way to try to settle such matters. Judges, juries, and lawyers are not in general competent to understand the issues involved; and the process is slow and expensive at best. The sort of offer that Weiler made to Calvo-Goller — to place a rebuttal next to the review, with readers invited to evaluate both — is a much better option, in my opinion.

From Weiler's (first) letter to Calvo-Goller:

I am very glad for you that other reviewers, such as Professor Ambos, reviewed the book favorably. But it is a very normal occurrence that the very same book is reviewed favorably by one reviewer and critically by another. I do not doubt for one moment the integrity of Professor Ambos (it is really not necessary to point out to me that you never met him etc.) but if, as seems to be the case, you are trying to suggest that because there is a favorable book review by one distinguished reviewer, the integrity of another, unfavorable review, is automatically called into question, I must politely express my dissent. The Talmud has long ago taught us that even contradictory conclusions can both be the living word of God. (Ellu veEullu Divrey Elohim Chayim).

[Hat tip -- Elizabeth Peña]

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12 Comments »

  1. Kylopod said,

    February 28, 2010 @ 3:01 pm

    My introduction to the insanity of British libel law came with the controversy over Deborah Lipstadt's book Denying the Holocaust. I had read the book before the controversy erupted, and I later read two books recounting the trial, Richard J. Evans's Lying about History, and Lipstadt's History on Trial.

    A quick summary: David Irving, a controversial British writer who has earned some mainstream respectability over the decades despite being a fairly undisguised Hitler apologist who eventually dipped into Holocaust denial, sued Lipstadt because her book (a U.S. publication, I should mention) had described him as a racist, an anti-Semite, and a Holocaust denier who had intentionally fabricated facts. He argued that all those claims were false and defamatory.

    Since British libel law puts the burden of proof on the accused, she had to prove in court that all the claims she made were true–including that he intentionally distorted history, and that isn't ever easy to prove. She won after an exhaustive investigation into his writings over a period of several years. The case bankrupted him and basically destroyed his career. I am happy at the outcome (though I'm against Austria's imprisoning him for his views), but I think the fact she had to go through this nonsense is very telling.

  2. Ian Preston said,

    February 28, 2010 @ 3:30 pm

    On the matter of Simon Singh v BCA, I found this report of last week's proceedings mildly heartening.

  3. rootlesscosmo said,

    February 28, 2010 @ 5:51 pm

    It's alarming that Professor Weigend seems to be facing, not a civil action for defamation, but a criminal proceeding. That seems even more intimidating than the British law of libel.

  4. SDT said,

    February 28, 2010 @ 7:03 pm

    Anyone who wonders about the merits of the complaint is should read the actual review to see how ridiculous the complaint is. The review is critical but fairly innocuous. It says that the book may serve as an introduction to the procedures of the International Criminal Court but would be no help in resolving the procedural issues that exist. The review identifies some reasons why the book would not be helpful, which is probably why the author is unhappy.

    According to the editor of the journal, he appeared before a French Examining Judge, who said she had no discretion but to refer the complaint to the criminal court for an investigation into the merits. If so, that sounds like a terrible system because any reasonable person reading the review could see that the case has no merit.

  5. J. Goard said,

    March 1, 2010 @ 12:24 am

    And to think I was offended by Lakoff's response to the Pinker review.

    These are legal scholars? Jeez…

  6. J.W. Brewer said,

    March 1, 2010 @ 12:47 am

    All the principals seem to not only be legal scholars but specialists in what is whimsically called international law. I don't know what sort of pieces the journal in question tends to run, but academics in this field stereotypically tend to think that there is no problem in existence that could not be solved by the intervention of a court-like process, as opposed to letting the empirical results of political / military / etc. interaction between contending factions be what they are, and keeping the damn lawyers out of it. (Put another way, skeptics about the efficacy of the litigation model for resolving conflicts are even thinner on the ground there than among legal academics more generally, at least in the U.S.) So there's at least a possibility they're getting a taste of their own medicine.

    This doesn't mean that this legal proceeding isn't a very very bad idea, but I would be curious to see a summary of the publications of Profs. Weiler & Weigand listing exactly what other sorts of non-professorial people they do or do not think ought to be coercively haled into court to account for their actions.

  7. Graeme said,

    March 1, 2010 @ 9:03 am

    If nothing else, what the book's author has achieved is to bring the negative review to a greater audience. I can only assume her original aim was to have the review taken down.

    I do detect a certain American superiority in the posts. The US indeed has ultra-liberal libel laws. But it also has a rule that generally denies a successful defendant their legal costs. Elsewhere in the common law, an unworthy civil plaintiff is required, eventually, to pay the lion share of the defence. Which is not a bad deterrent to mischievous and ill-thought claims (at least where the plaintiff is not skint).

  8. Sally Thomason said,

    March 1, 2010 @ 9:30 am

    When I was editor of Language, way back when, I was threatened with three lawsuits over unfavorable book reviews. Two of them, not surprisingly, came from a book author and a book editor based in England; the third, I'm sorry to say, was from an American (and he wasn't planning to sue for libel in England — actually, he wanted to sue the book reviewer, not me, come to think of it). All three of them annoyed me so much that I was reluctant to warn them that if they proceeded, they would only damage their own reputations and, ultimately, their careers. All three book reviews were (in my opinion) fair. One of them did turn out to have been written by one of the editor's enemies under a pseudonym, which was embarrassing (to me), but it was still a good review. To get the English book author to back off, I did finally have to tell him that even if he could get me to publish a "correction", readers of the journal would have to go back to the original review and reread it; he was smart enough to figure out (eventually) that that would do him no good. (In that case the reviewer had hinted at plagiarism; I did a detailed comparison of the author's book with several of the sources mentioned by the reviewer and found that indeed the author had lifted some arguments and occasional phrasing from other sources, without attribution.) Then there's the European publisher of journals who is said to have a large file drawer full of threatened lawsuits, by one well-known linguist, over things published in their journal(s) that irritated him. So it's not just legal journals that attract clueless thin-skinned litigious people; even some linguists go there.

  9. Forrest said,

    March 1, 2010 @ 3:58 pm

    In other news, my local NPR station ( KUOW in Seattle ) had a segment on last night's On the Media about how the UK's age of "libel tourism" is coming to an end … it's obviously a bit short on specifics, but an interesting tie-in.

  10. Picky said,

    March 2, 2010 @ 10:35 am

    I am strongly of the opinion that the English libel law needs reform, but – oh dear! – there is I'm afraid more than one side to this.

    If a newspaper, perhaps an organ in the ownership of a multimillionaire, attacks me, makes scurrilous statements about me, holds me up to ridicule and contempt in the eyes of my neighbours and colleagues, perhaps wrecks my marriage and my family and my career … how then am I to protect myself? If the paper makes such an attack, is it not reasonable that it should have to prove the truth of its allegations? Or should I, despite lacking the financial resources of the newspaper, have to try to prove a negative?

    Those are the arguments behind the concept in English law that, a defamation being shown, the defamer should have either to prove the truth of his defamatory statements or to show that they were made in circumstances which were privileged (such as where a public interest defence applies).

  11. Rob said,

    March 3, 2010 @ 11:07 am

    @Kylopod

    That's *English* libel law you're referring to, not British. Scottish law is different, I believe.

  12. Thom said,

    March 5, 2010 @ 6:37 pm

    The comments about English libel law are interesting but slightly off target. English libel law has many faults and is very urgent need of reform, but tends to offer much more protection for critics and reviewers than for others. Book, film, restaurant and other reviews are rarely grounds for libel actual because they are normally considered 'fair comment' – a complete defense to libel, I believe. (The exception would be 'malicious' personal attacks such as those alleged here – but I'm guessing those are actionable in most countries). So weirdly this might be one of the few cases where the plaintiff is better off pursuing the case in another country. The primary fault of English libel law IMO is that it is so expensive, so that if you are wealthy you can use to stifle criticism (though there are lots of other serious flaws too).

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