Saturday, 6 March 2010

Universities Should Defend Academics Charged with Libel

My recent post on the criminal prosecution of Joseph Weiler before the French courts for publishing a book review deemed, by the author of the book in question and seemingly nobody else in the known universe, to be defamatory, recalls a legal battle that I was subjected to in Canada more than a decade.
I was sued for defamation by Leon Mugesera, who fled Rwanda in the early 1990s and whose name has often been linked to the incitement and planning of the 1994 genocide. See, for example, Akayesu, para. 100 and Mugesera's own case before the Supreme Court of Canada. I had from time to time done media interviews in Canada on developments in Rwanda, and had referred to Mugesera's case. His claim was for about half a million dollars! My daughter Louisa freaked out when the bailiff arrived at the door.
I took the writ to the lawyers of my university and explained that I thought they were required to defend me, as doing such interviews was part of my duties as an academic. They didn't commit immediately, however, and instead called in the insurance company of the university. It was clear that the general insurance policy was probably meant to cover people who slipped in stairwells, or who fell on the ice on the steps outside the university, and not human rights academics sued by suspected génocidaires for defamation.
But the insurance policy was drafted broadly enough to cover my case, and the insurers agreed to take up the case. They even said they were proud to defend me because they had reviewed my statements on the subject and noted that I had always insisted that although Mugesera should stand trial, he was still presumed innocent.
Next, they did what insurance companies normally do in defence: file lots of punishing motions against the plaintiff. Within days, Mugesera's lawyer (the same guy who was later sanctioned by the Supreme Court of Canada for anti-semitic remarks - see Mugesera, para. 17.) asked if we would drop the case without costs, which we agreed to do. They had presumed that defending an expensive libel case would be a great financial burden on me, and perhaps had calculated that it might discourage me from continuing to speak out about Rwanda. Once the university's insurance company entered the battle, the balance of forces changed dramatically.
In convincing the university and its insurers to defend me, one of my strongest arguments was the fact that members of the faculty regularly reported to the university on our activities, and I had systematically mentioned 'interviews with media' as one of my academic tasks. Universities generally like the visibility of their academics being interviewed as authorities on various subjects. That means, of course, if and when we are sued we must insist that the university act in our defence.
Joe Weiler is a pretty smart lawyer, and I'm sure he has already figured this out. But for those of you who may not have thought this issue through, I would urge you to regularly inform your university if you do such media work, to identify yourself when you are interviewed as being associated with the university, and to seek opportunities to describe such work as part of your academic task. Having such protection should promote our academic freedom.

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