segunda-feira, 28 de setembro de 2009

Sharkey, Who Wrote About Air Crash for 'NY Times,' Now Faces Lawsuit for 'Defamation' -- in Brazil

'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 ( is a freelance writer who regularly writes for The New York Times, among other publications.

10 comentários:

Gustavo disse...

Mr. Sharkey, let's face it, if there was nothing wrong about your previous articles you woldn't have to worry about this lawsuit.

Nor would you have to appeal to an outdated passive-agressive and dreadfully naive comparison between Brasil and terrorism... When will you stop with this awful petty thing?

Do you understand that the U.S. doesn't want to hear the pilots? Do you understand that their lawier's strategy consists merely on delaying litigation?

You're not victims, sir. People that died on that terrible event are the victims.

Gustavo Faleck

ATC Brasil disse...

Dear Gustavo,

Without wanting to interfere into your little personal debate with Mr Sharkey - but, dear Gustavo, let's face it:

Brazil (or better the authorities of this country) is not really doing any better, as:

a) two terribly flawed Special Parliamentary Commission (CPI) reports which were drowned, at the end by politics and by mutual party bashing (reports about the Gol-accident and the "Air Black-out"). Sorry, a very pityful reading.

b) an incomplete, controversial and very biased final accident report made by CENIPA which is heavily contested by many renowned international experts (in particular by the US NTSB). Looks as if the Brazilian politicians and the military authorities made sure that the final drafting of this "factual report" was to their liking and hurting only a little bit?

c) a Military Justice which is for the least biased and only defending its own existance (of the Military and the BAF). Defending the Institution, but apparently not so shy to accuse it's own people, if this is the price to pay to try to get out of this whole mess?

d) a civil justice system which is only capable of copying, most of the time word by word, the partial, biased and very incomplete, and sometimes even factually wrong "laudos" made by the same Aeronáutica and the BAF, which are both "interested parties" in this disaster.

Come on, Mister Gustavo, before crying wulf and trying to bash others, start to clean up your own mess in Brazil. It would be about time that this starts to happen!

The problems and safety hazards are still there and very much present...........

Just read the SAFETY RECOMMENDATIONS made and issued by the official accident investigation bodies. Food for thought for the least....

ATC Brazil

Gustavo disse...

Dear ATC Brasil,

I try to get things better in anyway I can sir, as I suppose you do.

You have listed four items not only entirely accurately but things are great examples of the way things get done in Brasil.

It would be nothing but bashing from my part if this sort of thing got carried out differently in the U.S.. Legal issues get less of the "messing up", I agree, but do get clumsy and malicious. There, people do things like it has been done to the pilots (the U.S. doesn't wish to prosecute them and are feeding them to the wolfs in Brasil).

On top of that, the U.S. isn't as covered by radars as some people lead us to believe, it's a mess just as it is here. Remember radars that didn't work at 9/11 and that a plane crashed on an helicopter over Manhatan this year. It takes as much courage to fly there then it takes to fly around here.

You can talk to Brasilians about their problems, but why can't you talk to Americans about the SAME problems?

I think he's whining. I oppose fundamentally to Mr. Sharkey's attempt to be made into a victim and am offended by his concealed comparison between my country and the problem of terrorism. "Freedom of speach"? Please!

ATC BRASIL disse...

Dear Sir Gustavo,

One fundamental principle should be everywhere the same, being it in Brazil, Australia or the US: if somebody is found guilty, you must establish “without any shadow of doubt” that the persons which are declared “culpados” have either acted reckless, or by intent. That they have broken clear and well established laws, or have disrespected commonly agreed national or international procedures and requirements. This must be the RULE for any democratic and law-abiding country, being it where it is in the world.

We are not really convinced that the two US-pilots would get a fair and neutral trial in Brazil - as, frankly, there is already too much glass broken in this “affair”. The emotions haven't only broken the roof, they are miles and miles above our heads in the sky. So, any serious and unbiased working of a Court in Brazil is made by this impossible (in our opinion).

As for the US radar coverage: as far as we know the USA has a double (or even a triple) radar coverage, for the whole of its national territory (the mainland) - above let’s say FL 100. Exceptions maybe for the Rocky Mountains and also partially for Alaska. To our knowledge all the flights that were crashed into buildings (or an open field) by terrorists on September 11, 2001 were constantly visible and tracked by radar? Starting from take-off until they have crashed – we are not aware of any radar coverage problems for these 4 fatal flights on that day. Do you have any information on this?

The case of the recent mid-air collision over the Hudson river (in New York) is also a dramatic event. But this should not be mixed with the flying conditions in Brazil – and in particular not to be mixed with the mid-air collision between flight GOL 1907 and N600XL, which occurred on September 29, 2006 over the State of Mato Grosso.

Yes, the name given is the same “mid-air collision”, but then all similarities stop in our opinion. The Boeing 737-800 of Gol was a controlled IFR-flight which collided with another controlled IFR-flight in airspace of Class A (for which the Brasilia ATC-system (the SYSTEM, not just the controller!) should have provided a separation service = both flights to be safely separated). The final accident report has established that this was not done.

The collision over New York is a collision between two VFR flights, so no separation service was provided by ATC here. The basic rule for such visual flights is “see and avoid” – look out and observe traffic - and avoid it visually. All indicates that the pilots didn’t see each other, or saw each other too late. Please don’t mix these situations – there are really not comparable.

Yes, we may even agree with you that some parts of the US airspace are rather crowded and “difficult” for pilots. But we believe your remark of “courage” to fly in there is certainly going too far and so is greatly exaggerated.

So, dear Gustavo, yes, it might well be that Mr Sharkey is whining a little bit, but we believe his reactions were to a great extent triggered by the very nationalistic and for sure exaggerated “reactions” in Brazil (when the news and the details of this terrible mid-air collision came out and were spread out by the Brazilian press). This is the simple principle of ACTION = REACTION – a very simple and obvious principle of physics.

And please don’t forget that despite our very detailed technical discussion about this terrible mid-air collision which occurred on September 29, 2006 – the whole event is first, and above all, a HUMAN TRAGEDY as a lot of persons have lost their life in this collision over the Amazon. This seems to get lost for sure in this very emotional, and sometimes also heated debate in both parts of the Americas………

So, Dear Gustavo, yes your Freedom of Speech is guaranteed here on this blog.

And if you feel like reacting to our comments – you are kindly invited to do so – your opinion is taken seriously.

Best regards, yours kindly
ATC Brasil

Gustavo disse...

Dear ATC,

I'm certain that competent people such as yourself will analyse the tecnichal aspects of this litigation better than I could possibly. As to the legal aspects you mentioned, I don't have a shadow of a doubt that basic rights will always be observed!

I'm also certain that wherever this should be tried it would receive sufficient attention to be judged regarding the limits of what you call "nationalism" (limits; emotions get in the way of any litigation). The U.S. government seems to agree, for it trusts this should be tried fairly in Brasil.

I'm not naive enough to think that Brasil could just "run over" this pilots in a personal vendetta without taking consequences.

I think it's a desperate measure to lead others to believe so.

Maybe the truculence of the PF officers is here mistaken by patriotism. I think it is cute whan people say that we Brasilians are patriotic. I've never seen LESS patriotic people, as opposed to what I see in the U.S..

Fair enough, I suppose, people should be proud of their land. I wish Brasilians would think a little like that, maybe this could be a better place.

I don't think it is useful in anyway to examine "who started it". Sounds childish, as it does when very proud people start accusing other people of beeing irrationally patriotic. And it gets a little confusing when these people pretend to live in a perfect country and to have all the answers for all problems. For this very irritating posture to be just, these people should first have no blatant problems of their own - and it would still be quite annoying. This posture is also easily confused with arrogance and self-righteousness.

I must say that Mr. Sharkeys writings are unpolite (to say the least) and do not help anyone get this done any easier.

No one is that perfect and no one is that incompetent.

Gustavo Faleck

ATC Brasila disse...

Thanks dear Gustavo,

This is pra "meditar":

Tais fatos, propiciados por uma determinada parcela do efetivo do SISCEAB, que age em consonância com posições ideológicas divergentes e interesses pessoais, tentaram corromper a estrutura militar do DECEA que, segundo os ideais castrenses, está, sim, baseada na lealdade, no comprometimento, na hierarquia, na disciplina e no cumprimento do juramento que no início de nossas carreiras fizemos solenemente, tanto é assim que nos momentos mais cruciais os controladores de vôo da Defesa Aérea, em consonância com todos os demais controladores que seguiram o padrão doutrinário e as ordens em vigor, mantiveram o sistema operando a custa de significativos sacrifícios pessoais, numa demonstração cabal de que a missão tudo pretere.

Brigadier-Lieutenant Ramon Borges Cardoso, Director-General of the Department of Air Space Control (DECEA)

My comment: To follow orders and the hierachy, to serve the "ATC-system" (FAB/DECEA), but also the sworn loyalty to the Brazilian flag seems to be more important than SAFETY and the improvement of the Brazliian aviation system.


Very worrying, very worrying indeed.

This is for sure not the solution.
The problems are here and well identified (CENIPA). When will we see improvements and the necessary corrections?

Best regards

Gustavo disse...

Dear ATC,

You do illustrate a problem.

I find it terribly worrying that people still come to such conclusions only by random "copying and pasting" from whatever text they can find. Random and unrelated pieces of information used in a rethoric system of guilt are great fuel for the fires of cowardice and paranoia. This construction's theme has rarely been changed throughout the times: always some other people and the pride they feel about being threateningly different. And it has resulted often in the same thing: murder.

Believing in information constructed in this manner will bring people to hate other people.

Such conclusion - that loyalty is first to safety - can only be a hasty fabrication, one unwilling to understand that there is inevitable tension when civilian organizations work along with the military in any country that one can possibly think of. Military people talk like that anywhere.

Yes, having our air space controlled by the military is a pain in the ass - indeed it is and it causes all sort of tensions. It's a problem. It's the price we still pay, the remainings of our old contradictory right-wing dictatorship (that little hateful paranoid war against the communists, brought from the U.S. along with massive financing - just look into it, this is not a conspiracy theory).

As to when can we solve this I wish I had an answer. We are both contributing right now. I believe that's the only positive part in a disaster: it forces us to see the mistakes we made and to try fixing things. I hope all this talk produces results.

Getting back to the subject, one shouldn't meditate to such distances - why don't we wait and see what heappens when the pilots are tried?

It's very funny - ridiculous actually - to read that people think this trial will be impartial because Brazilians will crucify the pilots. I guarantee it is going to be impartial - only it's going to be impartially protective of these delicate, frightened and paranoid pilots.

Wanna bet?

When DIDN'T Brasil suck up to the U.S.?

My best,
Gustavo Faleck.

Gustavo Faleck disse...

Mr. Sharkey's writings have unfortunately been an extra problem to all involved in this disaster.

This blog has fortunately been a constructive force. Congratulations.

ATC BRASIL disse...

Dear Gustavo,

There is always a difficult balance to be found between Free opinion and putting limits on comments and remarks (offensive remarks).

I am not 100% sure which in way to bend in this question and "issue"? It seems to me that Brazilians are particularily "touchy" in some matters?

On one side you have J. Pereira (ex-INFRAERO) saying "these are our dead people" and Gringos get out and shut-up.

And on the other side the Brazilians are not willing to discuss the necesary changes and the necessary improvement in public. Some even engage in a ridiculous "Witch hunt" against some foreigners - maybe just to cover up the own failures and problems?

Im a democracy - and I believe Brazil is one - free opinion and free speech and the almost unlimited discussion about all topics is a fundamental human right.

I am sure that you are share my opinion.
um abraço

Gustavo Faleck disse...

Dear ATC,

Indeed I agree.

Sometimes part of this issue sound like "let's kill all the intolerant" or Homer Simpson's ingenious "It's my fault, I put it where I want it".

Most people don't even bother in finding the right temperature on these matters - they fight to maintain their status.

Our multitude of candidates and political parties should speed up Brazil's democratic processes, but we are so viced that our democracy still consists in picking between carefully chosen options. The military won't let go of their perks.

I insist that Brazilians in general aren't touchy or particularly proud people. I do feel sorry that the hypocritical speech of those who strive to maintain "old school" politics does lead people towards that impression.

I am also sorry to see that Mr. Sharkey's article has arisen such primal instinctive reactions from some people involved and that it also has illustrated the bad intentions on the reactions of others.

But I'm glad to see I'm not the only one minding my words in the persuit of a better future for all.

It's not easy to keep things in perspective in a fair manner.

All the best,