When the College Art Association decided recently to settle rather than fight a possible libel action in Britain over a book review published in one of its journals, it reminded American authors and publishers how wide a gulf separates the United States — where First Amendment protections and jurisprudence make libel difficult to prove — from most of the rest of the world, where the protection of reputations and public sensibilities trumps the right to say what one pleases.
The fracas comes also at a time when Congress and various states are enacting or contemplating legislation that would protect American writers and publishers from foreign libel judgments. The legislation would make such rulings unenforceable here unless they meet First Amendment criteria.
The recent controversy centered on a review in the fall 2007 issue of Art Journal, which is published by the association. The review was written by Joseph A. Massad, an associate professor of Arab politics in the department of Middle East and Asian languages and culture at Columbia University.
Gannit Ankori, chair of the art-history department at Hebrew University of Jerusalem, considered the review defamatory. She consulted British lawyers, who contacted the association. The College Art Association reviewed Ms. Ankori’s assertions, consulted its own lawyers, and decided to settle.
The agreement has not been made fully public, but it did include a payment of $75,000 to Ms. Ankori and an apology. The association also issued a statement to its institutional subscribers, in which it acknowledged “factual errors and certain unfounded assertions” in the review. It asked subscribers to remove the offending passages from their copies of Art Journal.
Mr. Massad called the decision to settle “a cowardly act.” Linda Downs, executive director of the association, told The Chronicle that the group concluded it could not afford to take the case to court. “We really didn’t have a choice but to settle it,” she said.
Ms. Ankori’s lawyer, Trevor Asserson, founder of Asserson Law Offices, described the settlement in a letter to The Chronicle as an “unequivocal victory in [Ms. Ankori[']s] fight to clear her name of defamatory statements.”
Ms. Ankori’s decision to explore legal action in Britain is known in some circles as “libel tourism” or “forum shopping,” in which plaintiffs seek out jurisdictions where the burden of proof falls on the defendant.
Several high-profile cases of libel that involved American authors and the British legal system have caught the public eye lately. One American scholar, Rachel Ehrenfeld, ran afoul of a Saudi billionaire, Khalid bin Mahfouz, over her book Funding Evil (Bonus Books, 2003), which alleged that Mr. bin Mahfouz had financial ties to terrorist groups.
Cambridge University Press agreed to pulp one of its books, Alms for Jihad by J. Millard Burr and Robert O. Collins (2006), in response to another complaint by Mr. bin Mahfouz (The Chronicle, August 10, 2007).
“My client has a reputation in Britain which was damaged in Britain,” Mr. Asserson, Ms. Ankori’s lawyer, told The Chronicle in an interview, taking a standard line used by plaintiffs in such cases.
The default position in America’s vigorous, often bare-knuckled debates on culture and politics is that the public — and not the courts — should weigh the evidence and make up its own mind about disputes such as the one between Ms. Ankori and Mr. Massad.
But Mr. Asserson says that America “is out of step with many, many other countries.” In line with prevailing British legal sentiment, he says that the public “needs to be protected from being fed dishonest information.”
That argument does not wash with American free-speech advocates. “Yes, terrible damage can be done, especially with the Internet, to someone’s reputation, and there has to be recourse,” says Judith Platt, director of communications and public affairs for the Association of American Publishers. “But the balancing factor has got to be the right of the public to be informed on matters of public importance.”
http://chronicle.com Section: The Faculty Volume 54, Issue 43, Page A9