'Libel Tourism': Sharkey, Who Wrote About Air Crash for 'NY Times,' Now Faces Lawsuit for 'Defamation' -- in Brazil
By Joe Sharkey
Published: September 25, 2009 12:40 PM ET
NEW YORK Last week, I was served at my home in New Jersey with an extraordinary lawsuit charging me with defamation in Brazil for things I allegedly wrote or said in the United States.
The lawsuit cites my reporting and commentary in the days and months after a Sept. 29, 2006 midair collision at 37,000 feet over the Amazon between a Brazilian 737 and a business jet, on which I was a passenger. All 154 on the 737 died; the seven of us on the badly damaged business jet made an emergency landing in the jungle.
The suit is a new twist in a phenomenon called "libel tourism," in which typically a foreign national claiming to be offended by something written in the United States travels to a pliant court in another country and obtains a libel judgment against the American defendant, even though the allegedly offensive speech would be fully protected under the U.S. Constitution.
The most prominent victim of “libel tourism” so far been Rachel Ehrenfeld, a New York writer and academic expert on funding of Islamic terrorism, who lost a defamation case filed against her in Britain by a rich Saudi businessman and alleged terrorism financier, now dead, who claimed he was libeled in her 2003 book “Funding Evil.” As a result, Dr. Ehrenfeld cannot travel to Britain.
The twist in my case is that the plaintiff, a Brazilian citizen and a widow of one of those killed in the collision, was never mentioned in anything I said or wrote after the crash. I had never heard of her till the suit was filed.
The suit claims to rest on an unusual Brazilian law that any citizen can claim damages for any alleged insult to the dignity or honor of Brazil in any case involving a crime – and in this instance, Brazil had been quick in 2006 to charge the American pilots of the business jet with criminal negligence. (The two, Joseph Lepore and Jan Paladino, remain on criminal trial in Brazil, in absentia).
The complaint against me states that the plaintiff “feels discriminated against” by a defense of the American pilots that I began in television and other media interviews starting a day after my initial account of the crash ran on page one of the New York Times on Oct. 3, 1006 – the day after I was released from Brazil.
The complaint is directed against a personal blog I started, and not the Times -- though the demand for relief includes apologies in the Times and on all of the TV and radio outlets that interviewed me after the crash.
What was my real offense here? Well, as the only survivor of the crash who has been free to speak (the other six are under various legal constraints) I stood up for the pilots, who were clearly being scapegoated in an intensely anti-American atmosphere in the Brazilian media and public arena.
In several national television and radio interviews right after my Times account ran, I mentioned that international pilots had been telling me that air space over the Brazilian Amazon was notorious for “dead zones,” where radar and radio communications don’t work, and that Brazilian air-traffic control – run by the country’s Air Force – was famously not always up to international standards.
These comments ignited a firestorm in Brazil. I was denounced publicly by Brazilian officials, including the nation’s defense minister, who asserted days after the crash that pilots of the business jet had been executing reckless “aerial maneuvers” over the Amazon to impress the “American journalist” – i.e. me. (I was merely along as a hitchhiker on the 13-seat on the plane, which had just been delivered in Brazil to a Long Island charter company, while on a freelance assignment for a business-aviation trade magazine).
While being vilified in Brazil, I was getting a barrage of hate e-mails and even death threats from Brazil. Day after day, crazy conspiracy theories were repeated in Brazilian media and among bloggers there. One asserted that the American pilots had turned off equipment to avoid detection in the skies because they were transporting drugs for the CIA.
Even the lawsuit against me prominently alludes to one of these absurd conspiracy theories. The complaint states: “There is a rumor that the defendant made the ill-fated journey with the intent of writing an article about the Amazon, intending to demonstrate that the air space belongs to no one, the reason for this [sic] is he asked the pilots to turn off the device that would allow them to be detected in that space, and this is why he feels such a responsibility to clear the pilots of all blame for the accident.”
There is no doubt that posts on the blog I started to report and comment on the crash were forceful. I argued intensely, citing a growing body of evidence and world airline industry opinion, that it was a grave mistake for the Brazilians to rush to criminalize an aviation accident, because doing so impedes free and honest investigation.
The blog was provocative, but the accuracy of the reporting has never been challenged, and the commentary was always about Brazilian public authorities, never private citizens. (The complaint also cites me for giving offense to a Brazilian-born aviation pioneer Santos Dumont, who died in 1932, but in fact I wrote favorably about him. The offense was that I noted that his aviation accomplishments mostly occurred in France, not Brazil.)
A few times over the 15 months that blog was active, I did post stock photos of the Keystone Kops and the Three Stooges to illustrate what I regarded as particularly egregious misconduct by Brazilian authorities. In hindsight, frankly, I wish I had not gone that far in ridicule. As Boss Tweed said of Thomas Nast’s savage editorial cartoons, it’s “them damned pictures” that hurt.
Weirdly, by the way, the complaint almost exclusively cites things, often in less-than-standard English, I never wrote or said about Brazilian authorities. I did not refer to the country as “most idiot of idiots,” for example, nor did I ever write or say that “Brazil is a country of Carnaval, soccer, bananas, thieves and prostitutes” -– although in one post I did mention Brazilian media accounts that a particularly bumptious police official involved in the scapegoating of the pilots had earlier in his career once been kidnapped and locked in the trunk of his police car by three teenaged female prostitutes.
Actually, nearly all of the allegedly offensive words and phrases cited in the complaint evidently were scraped from comments on other Web sites, in Brazil, that linked to my blog, or from messages between people who made comments on my blog in Brazil.
It’s important to remember that I always expressed deep grief and sympathy toward the relatives of the victims of that crash, who I thought were extremely ill-served by Brazilian authorities who were more intent on finding a scapegoat than on improving aviation safety.
The cause of the crash is not in any serious dispute. Last year, the highly respected U.S. National Transportation Safety Board, which had been involved in the investigation because an American-owned aircraft was involved, finally issued its report. Evidence “strongly supports the conclusion that this accident was caused by N600XL [the American jet] and Gol1907 [the Brazilian airliner] following ATC [air traffic control] clearances which directed them to operate in opposite directions on the same airway at same altitude, resulting in a mid-air collision.”
The Amazon crash was big international news for a few weeks, but three years later it has n an event that has mostly faded from memory in the U.S. For me, of course, it has always been current, and the arrival of that man at the door with the court papers made it even more so.
In short, the Brazilians are seeking to ruin me financially and, it seems to me, to inflame the intense public anti-Americanism that accompanied this incident from day one. Next Tuesday, the third anniversary of the crash, a Brazilian prosecutor against the American pilots, along with the plaintiff in the suit against me and other relatives of the dead, are holding a public hearing in Brasilia to discuss the “progress of the criminal cases,” according to media accounts.
Meanwhile, the New York City law firm Grant, Herrman, Schwartz & Klinger, which dispatched the process server to me, has been retained by the plaintiff’s representatives in Brazil to enforce a judgment against me in the United States. There has been no trial or verdict yet in my case, but the judgment in Brazil seems to be a foregone conclusion.
That’s where this becomes a very important issue of free speech in America. If Brazil can claim a ruinous judgment in the U.S. against an American citizen who has "offended" that nation, what is to stop any other country – Iran? Libya? North Korea? – from trying the same tactic? And it could be directed not just against a journalist or blogger, but also an academic, a researcher, an analyst, an entertainer, a casual traveler who writes something that is deemed insufficiently respectful.
There is legislation in Congress called the "Free Speech Protection Act of 2009" that would protect Americans from foreign judgments in these kinds of cases, but it has been stalled for about a year and does not appear to be going anywhere. Also, several states, New York among them, have passed laws that prohibit enforcement of foreign judgments against citizens sued for defamation, in cases involving speech that would be protected in the U.S.
Dr. Ehrenfeld, who lost that lawsuit in Britain filed by a Saudi terrorism financier, is protected in New York State against the enforcement of the judgment against her. I am not protected in New Jersey, though State Senator Loretta Weinberg has sponsored a bill similar to New York’s. In most states, you would not be protected.
Everyone who writes something negative about a paranoid foreign country remains exposed. The process-server hired for a foreign government can jump out of your front-yard bushes when you least expect it.
Joe Sharkey (firstname.lastname@example.org) is a freelance writer who regularly writes for The New York Times, among other publications.