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Media & Communications Law

Reporter Who Survived Midair Crash Now on Risky ‘Libel Tourism’ Journey

Posted Sep 25, 2009 1:32 PM CDT
By Martha Neil

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On Sept. 29, 2006, Joe Sharkey survived a midair collision 37,000 feet over the Amazon between a Brazilian 737 and a business jet. All 154 aboard the 737 died when it reportedly may have nosedived after making an evasive maneuver. Sharkey and all six others on the damaged business jet survived after the pilots eventually spotted a runway on a military base deep in the jungle and made a successful emergency landing.

Now he is on another risky journey. In the latest example of the "libel tourism" that has become a growing trend in recent years, Sharkey has been sued—in Brazil—by a woman he had never before heard of who is the widow of a man who died in the accident. She contends that Sharkey's reporting on the plane crash—in the United States—dishonored her country, as she is permitted to argue under Brazilian law in her home country, explains Sharkey in an Editor & Publisher column.

Sharkey incited ire from multiple readers in South America, he explains, by defending the work of the American pilots of the business jet, who were accused in Brazil of criminal negligence, and criticizing the country's air-traffic control system. He also, as he now admits, might have exercised better judgment by not posting occasionally on his blog what he describes as stock Keystone Cops and Three Stooges photos.

The problem is, from his standpoint, the widow's lawsuit could strip him financially, because it targets his personal blog rather than his freelance work as a columnist for the New York Times, according to Sharkey, who wrote about the midair crash for the newspaper in 2006. Last week, he was served in his home state of New Jersey with a copy of the lawsuit and a New York law firm has been retained to enforce a potential judgment against him.

Another writer, Rachel Ehrenfeld, lost such a defamation case when she was sued in the United Kingdom by a wealthy Saudi businessman over her 2003 book Funding Evil. Although the plaintiff is now dead, she can't travel to Britain. However, a New York law protects Ehrenfeld's assets from seizure as a result of the foreign defamation judgment over comments that would be permissible in the U.S., Sharkey says.

New Jersey has no such law, and a proposed federal law, the Free Speech Protection Act of 2009, is seemingly going nowhere,

Due to anti-American feeling in Brazil, a judgment against him "seems to be a foregone conclusion," writes Sharkey. "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."

Sharkey's article doesn't include any comment from the plaintiff or her legal counsel. However, a Brazil magazine article about the lawsuit filed by Rosane Gutjhar in 18th lower civil court in Curitiba in October 2008 describes the suit as an attempt to call Sharkey to account for allegedly intervening to protect the business jet pilots from Brazilian justice. It quotes one of Gutjhar's lawyers, Oscar Fleischfresser, as saying that the libel case is "a way to halt, effectively, his illegal and damaging behavior, in detriment of the widow and all other Brazilian citizens."

The suit is seeking damages for pain and suffering and a court-ordered apology in the same media in which Sharkey made the comments at issue in the litigation.

Earlier related coverage:

BBC (2007): "US pilots blamed in Brazil crash"

Newsday (2006): "L.I. pilots in Brazil crash welcomed home"

Overlawyered (2008): "NYT travel columnist comments on air crash, gets sued in Brazil"

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