Memorandum submitted by College Art Association


CAA is a membership organization with 14,000 individual members and 2,000 institutional members and represents the broad spectrum of the visual arts community in the United States. CAA's international membership comprises academic art historians, artists, and administrators in the visual arts; art museum directors, curators, educators and conservators; art libraries and museums, publishers and art galleries. CAA publishes three distinguished scholarly journals, The Art Bulletin, Art Journal and the born-digital journal


Central to CAA's mission is support for practitioners and interpreters of visual art and culture and, in this connection, CAA is a strong advocate for the freedom of expression that is the lifeblood of artistic and academic work. Representing its members' professional needs, CAA is committed to the highest professional and ethical standards of scholarship, creativity, connoisseurship, criticism, and teaching that all rely on the uninhibited, robust and respectful exchange of ideas. CAA fosters this exchange through its publications and an Annual Conference, which draws 4,000 to 6,000 attendees, all of which provide venues for the analysis and creation of art at the highest intellectual level.


CAA works within a limited budget that is typical of many non-profit organizations, including learned societies, which, like many non-governmental organizations, provide crucial services for the production and application of human knowledge with relatively humble means. Within these limitations, however, members expect CAA to be an ardent and effective advocate for the arts and humanities in the areas of government funding, copyright and intellectual property, professional standards and practices, career development, and the fundamental principles of freedom of expression.


CAA's interest in the New Inquiry is not merely academic but, in fact, is prompted by CAA's recent first-hand experience with the conditional fee agreement (CFA) system available to British libel claimants. In February 2008, an art historian resident outside the United Kingdom threatened, through a British-qualified lawyer, to sue CAA for defamation in United Kingdom courts for statements in a review of her book that CAA has published in an issue of Art Journal several months earlier. The jurisdictional grounds for the claim, had it been filed, would have been that a few copies of Art Journal, which CAA distributes only to its members, were sent to a small number of those members who are resident in the United Kingdom.


From CAA's perspective, the claim that was asserted presented a classic case of "libel tourism," in this case, involving a United States-based learned society, a small number of copies of a scholarly journal sent into the United Kingdom and an academic based entirely outside the United Kingdom. Having consulted counsel, CAA very rapidly realized the difficulties of defending a libel action in the United Kingdom on the merits. As, if not more, important, CAA understood that defending the action would have placed the CAA under financial pressure, not only due to the costs of defense, but the possibilities that a loss would have resulted in paying judgments and legal costs to the claimant. After a careful analysis of the merits of the case, and in light of the risk of paying costs and damages, within a few months, CAA settled the claim with a financial payment to the claimant.


Financial considerations are one of many factors that NGOs need to consider when faced with a legal challenge. That said, fundamentally, the CFA-based system in the United Kingdom poses a significant and direct threat to individual and collective rights of expression - to the legitimate intellectual, scholarly and artistic exchange of ideas that constitute the foundation of civil society.


CAA has traditionally been at the forefront of providing a platform for open academic and scholarly discussion of issues of all kinds, including those that address significant topics relating to diversity, gender, politics and culture. Potential CFA-based defamation claims in the United Kingdom, however, have a dramatic and chilling effect on scholarly debate on these and other issues. When a country's system of compensating defamation claimants quells the exchange of ideas, then democratic, academic and ethical principles are threatened. The result may be quiet, but devastating, in the form of self-censorship, or may be public and direct, in the form of an increase in libel claims and litigation.


As with other learned societies in the United States, CAA is most interested in seeing limits placed on the CFAs that can be used by claimants in bringing libel claims in British courts. Beyond the CFA system itself, CAA supports a system that would reimburse a successful libel claimant for legal costs only to the extent that they bear "a reasonable relationship of proportionality" to the injury suffered by the claimant. Finally, CAA advocates special consideration to small publishers, which do not have the resources of large media corporations in defending against a libel claim. In this regard, the availability of free legal representation for NGOs should be considered.


CAA hopes that the Select Committee will advance the commonly shared interest in healthy expression by taking steps to reform British law, to ensure that learned societies that publish in the international community will be able to pursue their mission - of fostering discussion and debate in the scholarly community - without being subjected to the extraordinary financial risks presented by a threatened or actual libel claim in British courts.


April 2009