Nowadays, for better or worse, everyone -- literally, everyone -- can be a publisher. Not because the First Amendment guarantees it, but because the Internet does. You simply create a blog or other website, and everyone across the globe can read your pearls of wisdom. Silly thoughts you previously shared only with those closest to you can now be shared with a stranger online in Nairobi, Tahrir Square or Uzbekistan. Your persiflage can reach countless iPad owners who have never heard of you (yet) and who stumbled across your website accidentally. And most important here -- as a hint of what's to come below -- your published work can also be downloaded in Paris.
Your "book," as it were, about diphtheria, meditative paragliding or the modern marvels of bathroom cleansing solutions can become a "best seller" orchestrated from your humble publishing house, otherwise known as your broadband-connected laptop. Your brilliance (or folderol -- whichever, really) can be read worldwide, without a single reader ever having left his home to buy your work. You've become a virtual publisher to an audience of millions, arguably billions, without an actual overseer publisher burdening you with an editor who audaciously vets your commentary for libel.
As an American writer who typically writes about people in the public eye, you feel comfortable doing it freestyle, particularly in light of the Supreme Court's 1964 decision in New York Times v. Sullivan, which requires a public figure suing you for libel to prove actual malice or recklessness to prevail, even if your writing is false. You feel even more safeguarded by the Supreme Court's 1997 decision in Reno v. ACLU, which held that Internet commentary should receive the highest level of First Amendment protection. From your perspective, you're golden. Surely no American court would ever, in a million years, sustain a defamation complaint given your meticulous and objectively unbiased efforts to get the facts right on your website. What is more, you don't really think you could be sued abroad, where this protective First Amendment jurisprudence doesn't hold sway.
But you are wrong -- maybe even "reckless" -- in assessing your own potential exposure. Despite the fact that the United Kingdom is the birthplace of the common law, libel plaintiffs around the world who might be wasting their money suing in an American courtroom have found their forum of choice. The U.K. has a very watered-down public figure exception, and even if its latest free-speech reform efforts to enact new legislation more restrictive of libel actions is successful, the defendant is still basically guilty until proven innocent. Though there is movement away from being the libel magnet of the world, the "libel tourism" trend is alive and well across the pond. Unless your T's are crossed and your I's perfectly dotted, you may be in for the libel ride and judgment of your life, irrespective of whether your book, blog or whatever was even published or sold in Britain.
It is true that many U.S. and state courts will no longer enforce a libel judgment obtained in Britain (or elsewhere) if the foreign law of defamation does not comport with the U.S. and applicable state constitutions. But it may be a long battle to win that war. Even if you ultimately succeed in defeating an enforcement action in the United States, you will still have to wage a strong and costly defense against the case in Britain or another international jurisdiction. And if you lose there, even with the benefits of sympathetic libel tourism legislation back at the ranch, you would likely never be able to travel in the British Empire or other country again, lest you potentially suffer efforts to enforce the money judgment after flashing your passport at Customs.
But now the potential consequence may be even worse, surprisingly, just a Chunnel ride away, in the Republic of France. Just imagine what Marat, Danton and Robespierre, the philosophic architects of the French Revolution, would think upon learning that you could be exposed to a "criminal" libel prosecution in Paris over a book or website you published abroad about someone whom you have now offended. Then again, this is the country that charged Flaubert and his publisher with public offensiveness for printing "Madame Bovary."
So imagine if your book, or article, or book review or general musing you posted on your website was to hypothetically (and for obvious reasons given what we discuss here, we truly mean hypothetically) opine that Derek Jeter is an "antiquated relic with the physical talents of a 5th grader," or that House Speaker John Boehner "has no gifts other than his remarkable tannability," or that John Grisham "can't write a good novel to save his life." Thin-skinned as they might be, and no matter how few readers might actually read your remarks or be influenced negatively by them, these "victims" could potentially file criminal complaints to the French authorities and trigger your libel prosecution in France. Yes: a crime! Never mind that the unhappy claimants' civil lawsuits over this alleged defamation would be summarily dismissed in the United States, based on First Amendment protections and additional statutory protections for online publishers against being held liable for remarks contributed by third parties. See 47 USC §230. (And for the record -- maybe only for the record as a matter of self-protection -- Jeter remains a marvelous athlete, Boehner a gifted politician and Grisham, the fiction writer of choice!)
Clearly, Jeter, Boehner and Grisham won't sue us or ask the French gendarmes to prosecute us. But the implications of this expanding chilling practice are that people had best watch what they say, or write, to mitigate the risk of offending anyone rich enough to bring charges on a weekend trip to Paris. Sound overly dramatic? Consider the recent case of professor Joseph Weiler, currently of NYU School of Law:
Weiler, a distinguished professor of international law, hosts several websites as editor-in-chief, including the European Journal of International Law and a book review website called Global Law Books. As such, in 2007, he commissioned and then published an admittedly unflattering review of a book entitled "The Trial Proceedings of the International Criminal Court," authored by a senior lecturer, Karin N. Calvo-Goller, who teaches law in Israel. Importantly, among other things, the four-paragraph review questioned the author's "conceptual grasp" of her subject. Calvo-Goller, horribly offended by the "assault" on her honor and reputation, demanded that Weiler take down the review. He declined, but generously offered to publish her rebuttal alongside the offending review on his site. Not good enough! So, although a Dutch firm published Calvo-Goller's book and the review was posted online in New York (where Weiler lives), Weiler was prosecuted in France based on Calvo-Goller's complaint on a charge of criminal libel.
On these facts, we have a foreign criminal prosecution over a review that wouldn't even result in a civil claim being sustained in this country. Though a number of U.S. states do recognize criminal libel, it is highly unlikely they would allow a prosecution for a defamatory opinion, such as articulated in a book review.
The good news at day's end is that on March 3, 2011, the French court (the Tribunal de Grande Instance de Paris) dismissed all charges against professor Weiler. The tribunal specifically found that Calvo-Goller abused the process by "forum shopping" in France, based on her admission that she saw French law as having offered her only chance of success and that she recognized the limited connections of her claim to France. Interestingly, the opinion noted that the offending review wasn't even downloaded in France during the crucial three-month period after publication, presumably because the French population wasn't clamoring to gain insight from a German reviewer's opinion of an Israeli professor's book posted on an American's website.
The truth is this: Calvo-Goller was willing to do what she did simply because she didn't appreciate the book reviewer's opinion posted by professor Weiler. Sadly, more pusillanimous writers among us who might wish to offer their own "opinions" of the likes of Calvo-Goller, won't have the fortitude to do what professor Weiler did. At tremendous expense in defending the case, he endured two years of emotional uncertainty (even though no prison sentence was impending), not knowing whether he might have to endure a blemish on his escutcheon as a lawyer and law professor stemming from a criminal conviction in a foreign country. All this with no Emile Zola to trumpet his innocence throughout his ordeal! Still, he admirably refused to bend to the extortion of a threatened but baseless claim, even with the possible antidote of anti-libel tourism statutes in America (assuming such statutes will afford the same relief against a criminal fine as they might against a civil judgment). This is how the law advances.
There are many wealthy, maybe even billionaire, potential libel plaintiffs out there with fragile egos. They have the resources to sue for defamation when they feel merely somewhat offended or to trump up their stated displeasure, essentially threatening to bring to heel publishers and writers who dare to express their good faith independence in their bon mots. That the French court finally awarded professor Weiler 8,000 euros (about $11,000 USD) "to compensate the harm caused by [Calvo-Goller's] abuse of process," will hardly be a deterrent to the billionaire plaintiffs who wish to go after those who have dared to disagree with them online in the United States (and inevitably, around the world). The First Amendment values of protecting the speaker over the respectfulness of the speech, which our Founders found so iconic to our existence, should really have broader appeal than that. And if not, perhaps the baser argument that any press is good press will appeal to such plaintiffs. Just think of where the Tiger Mom would be if she hadn't been willing to embrace (and capitalize mightily on) the intense online criticism of her Chinese parenting book. Gift horse, meet mouth.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches Professional Responsibility at Fordham Law School. Katherine A. Helm, Ph.D., a former law clerk to a U.S. Court of Appeals judge and a U.S. District Court judge, is in private practice in New York. This column is the latest in a monthly series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.