Summary of Editorial Workshop
CAA convened an editorial workshop to discuss the advantages and legal risks of publishing in an international environment. CAA has prepared and is making available this summary of the workshop discussion to inform CAA and its members, as well as other organizations and individuals, when considering these issues. These notes do not represent CAA policy, nor do they constitute legal advice. CAA hopes, however, that they will be of use to authors and editors in developing and implementing appropriate editorial processes in connection with their publishing activities.
Goal of the Workshop
A recent legal settlement by CAA involving a United Kingdom–based claim for defamation has heightened awareness of the international legal context in which CAA publishes and of the continuing need to be aware of legal issues in developing and implementing CAA’s editorial policy and practices. To this end, CAA held an editorial workshop on July 24, 2008, the goal of which was to bring legal experts, censorship experts, free-speech advocates, and commercial and university-press publishers together with members of the CAA Board of Directors, the editors and reviews editors of Art Journal, The Art Bulletin, and caa.reviews, and CAA staff to review the major risks posed by publishing (journals, websites, conference sessions, publications, etc.) within and outside the United States and to explore protective practices and policies that could be considered by CAA in the future. Better knowledge about the current legal context for publishing was felt by all to be the linchpin of helping authors and editors into the future.
The workshop conversation was led by eleven discussants:
- Joan Bertin, Executive Director, National Coalition Against Censorship
- Jonathan Bloom, Counsel with the New York office of Weil, Gotshal & Manges LLP and Association of American Publishers Legal Counsel
- Peter Givler, Director, Association of American University Presses
- Svetlana Mintcheva, Director of Arts Advocacy, National Coalition Against Censorship
- Irving Rockwood, Editor and Publisher, and Carolyn Wilcox, Reference Editor, American Library Association, Choice
- Frank Smith, Editorial Director for Academic Publishing at the American Branch of Cambridge University Press
- Peter Warner, President, US Division of Thames and Hudson
- Paul Jaskot, Associate Professor, Department of Art and Art History, DePaul University, and CAA President and CEO
- Jeffrey Cunard, Managing Partner of the Washington, DC, office of Debevoise & Plimpton LLP and CAA Legal Counsel
- Buzz Spector, Professor and Department Chair, Cornell Department of Art, College of Arts and Sciences, Cornell University, and CAA Vice President for Publications
The discussants addressed the risks of international publishing.
Libel and Defamation
Several speakers addressed current legal issues concerning libel law. Libel is a false statement of fact about a plaintiff that is injurious to his or her reputation that was made with a required degree of fault. Under the laws in most US states, careless error is actionable, if at all, only where a publication concerns a private matter about a nonpublic figure, and wide protection for the press, particularly where public figures are involved, is provided under the First Amendment. However, the law of defamation differs significantly in other countries, where US constitutional protections are absent. US libel law is more protective of speech than the libel laws of any other country.
The concept of “libel tourism” was discussed. It is defined as one in which plaintiffs make an opportunistic use of more plaintiff-friendly libel law outside the United States (increasingly in England and some other Commonwealth jurisdictions) to sue a US author or publisher for a work not originally published in and not intentionally distributed in that country. The libel tourist’s purpose to obtain a judgment or extract a settlement that would not be possible under US law, given the First Amendment protections in the United States. In New York, the Libel Terrorism Protection Act became law in May 2008. This new statute provides that a winning plaintiff in a non-US libel case can only collect a judgment through a New York court if the judgment would be sustained under New York law and comports with US constitutional standards. The statutes also makes it easier for an author or publisher of a book published in New York to seek a declaration from a court in New York that the foreign judgment is not enforceable in the US by broadening the grounds on which a New York court can exercise personal jurisdiction over a foreign libel plaintiff. A similar bill, the Free Speech Protection Act of 2008, has been introduced in both houses of Congress.
Hate speech is speech that denigrates races, religions, ethnic groups, nations, or other nonindividual entities. Participants in the workshop noted that most countries recognize hate speech as criminal. Under US law, the First Amendment protects most “hate speech.” The First Amendment protection of free speech is not fully accepted by even the closest Western allies, such as Canada, England, France, and Germany, where laws that curtail speech are invoked in an effort to promote tolerance.
Obscenity and Child Pornography
Conversely, federal and state criminal laws in the US that prohibit obscene or indecent materials are more restrictive than those in several liberal Western allies.
Privacy and Right of Publicity
Countries in Europe generally have broader protection for the protection of personal data (such as name, address, and other personally identifying information) than is found in the US, as was noted by several speakers. US laws on privacy protection vary from state to state.
Workshop attendees then took up legal questions on copyright. Publishing contracts generally require authors to warrant that submissions are original and do not infringe on the copyrights or other intellectual-property rights of third parties. They also allocate responsibility between publishers and authors for obtaining any necessary third-party permissions.
US courts generally have rejected attempts to hold publishers of generally circulated books and magazines liable for negligence in cases involving harmful consequences claimed to have resulted from following published advice.
Possible Safeguards to Consider
Libel and Defamation
Ad Hominem Criticism: Many contributors to the workshop weighed in on the subject of the various ways in which they identified and dealt with ad hominem criticism by authors. It is important to distinguish between legitimate and constitutionally protected academic debate and factual assertions about a person that may be untruthful and harmful or hurtful. Although opinions are protected, false and defamatory facts are not. As noted by several people, it may be useful to avoid ad hominem criticism—using facts about an individual’s background or habits to attack his or her character rather than his or her argument or scholarly product. If a statement regarding an individual is not substantially supported with truthful, factual information from multiple sources, it probably is prudent not to use it.
All “red-flag” issues need to be discussed among the editorial staff as part of its training and considered in the editing process.
Fact-Checking: Representatives from the university presses, commercial publishers, magazines, and newspapers noted that they all fact-check to a greater or lesser degree, although whether and to what extent they do so depends often on the topics under consideration. Fact checking should always be a possibility, although the standard academic practice of relying on authors to provide documentation through appropriate notes and citations remains the dominant practice in most cases
Written Documentation: All interactions between the authors and editors, particularly those involving content that raises red-flag issues, should be documented in writing and kept for as long as feasible beyond the publication date in case of legal action.
Responding to Lawsuits: Several participants suggested that lawsuits arising out of the contents of publications are rare. Most publishers of scholarly journals have never been sued. Commercial publishers are sued infrequently but have, on occasion, had to settle lawsuits and destroy books in print.
When threatened with a lawsuit, it is better to contact legal counsel and the insurance company prior to responding to the claimant. The object is not necessarily to avoid a lawsuit (which, while desirable, is never entirely possible for any publisher) but to be sure that the publisher has taken all precautions necessary to defend successfully against such a lawsuit, should one be brought.
Publish Letters to the Editor: Editorial spokespersons emphasized that publishers should consider providing mechanisms to encourage feedback from authors to the journal.
Train Editors: Provide training for all new academic and staff editors and editorial-board members on procedures, policies, conflicts of interest, legal issues, and documentation. Several different kinds of training structures were discussed. Training could empower editors or staff to work actively with authors to ensure that proper factual information is provided to support claims, especially those that might raise red-flag issues. Several speakers identified examples, such as:
- Hate Speech: Be aware that negative statements about a group (even if backed up with factual evidence) may be considered actionable in other countries, particularly when the author of the group described is not a US citizen
- Obscenity and Child Pornography: Editors should be aware of the fact that US law varies from state to state and that use of an artwork of a nude child or a clothed child in a sexually lewd or lascivious pose may be risky
- Privacy and Right of Publicity: US states vary, as do laws outside the US, in regard to privacy- and right of publicity–related offenses
- Copyright: Most academic publishers have clear procedures on acquiring rights necessary to reproduce and distribute written material and images
- Negligence: Negligence is not an issue under US law for most publishers
- Insurance: The advisability of insurance policies was discussed. Most nonprofits have commercial general-liability insurance and insurance to cover members of their boards of directors and staff against personal liability (Directors and Officers insurance, or D&O) Groups that publish probably should also consider purchasing Errors and Omissions (E&O) insurance policies, which cover an organization’s media activities and protect against liability for infringement of copyright, trademark, and privacy/publicity; defamation and libel; obscenity and pornography; false advertising, and related risks. Typically, such policies cover both print and online publishing
In light of this editorial workshop, CAA’s Board of Directors, Publications Committee, and editorial boards, as well as CAA staff, are reviewing editorial procedures and policies. Regular review of processes will continue to be integral to CAA’s efforts to adhere to best practices.