UK libel laws and global free speech

2009-04-09

in Internet matters, Law, Politics, Writing

Rust on white paint

As explained well in an article by Emily MacManus, I don’t think it’s an exaggeration to say that British laws on libel are a threat to free speech around the world. Because they permit frivolous cases that would be far too costly for most people to fight, they give a great deal of power to anyone who is annoyed enough and has the resources to pursue legal action there. Even the threat of such action may be sufficient to make individuals or publishing organizations censor themselves.

The linked article goes further into the peculiarities, which include the characteristics of ‘no-win-no-fee’ litigation and the broad understanding of who constitutes a ‘publisher.’ For instance, if you said something true but commercially harmful about a company on your website, they might go after you, your internet service provider, or the company that runs the server your site is on. Any of them might feel pressured into removing the statements, rather than face litigation. British law also holds that “every time the statement is downloaded or accessed it constitutes a fresh publication,” which could produce especially absurd outcomes for a popular website.

An important first step could be requiring the party bringing the suit to prove that the allegations are untrue, before the court accepts the case. For instance, if I said that Rio Tinto was polluting a river somewhere with mercury, or that Suncor is emitting huge amounts of greenhouse gasses, they would have to prove the opposite in some sort of pre-trial hearing, before they could come after me. It might also make sense to limit which courts can hear a particular case, so as to prevent people from shopping around in random legal jurisdictions to find the one that gives them the strongest hand.

The article suggests that ‘principled deep-pocketed litigants’ might be able to produce some useful new precedents, limiting the damage the existing rules on libel and defamation could have on honest and open public discourse. For now, however, it suggests that “the reaction to libel remains: take it down, take it down quickly, take it down again. And libel tourism means that this habit is likely to spread.”

One thing the article isn’t clear on is what could happen to you if a British court rules against you, in your absence, and you simply ignore them. Perhaps someone with more legal knowledge could explain whether there is any chance of them coming after assets held in another jurisdiction.

Report a typo or inaccuracy

{ 37 comments… read them below or add one }

. April 9, 2009 at 11:52 am

A jurisdictional tangle

Dec 10th 2002
From Economist.com
Media companies around the world are alarmed by a high-court ruling in Australia

A RULING by Australia’s high court on Tuesday December 10th has further complicated the already murky question of which laws and whose courts have jurisdiction over the Internet. In a closely watched libel case, the court has confirmed a lower-court ruling that Dow Jones can be sued in the Australian state of Victoria over an article that appeared on its website. The court rejected the American company’s claims that any libel action should be heard in New Jersey, where its web servers reside. A range of media groups and Internet firms—including CNN, Yahoo!, the New York Times, the Washington Post, Britain’s Guardian, Reuters and Amazon—had joined the case on Dow Jones’s side, fearing that a ruling against the firm would set an important precedent which could make all Internet publishers open to lawsuits in any of the 190 countries where the Internet can be accessed and so curb free speech everywhere.

The case has been brought by Joseph Gutnick, a wealthy Australian businessman, over an article in Barron’s, a weekly financial magazine and corporate cousin of the Wall Street Journal, Dow Jones’s main publication. Mr Gutnick objected to an article in the October 2000 issue that appeared both in print and on Dow Jones’s popular Internet site. The article claimed that Mr Gutnick was “the biggest customer” of a convicted money launderer. Melbourne-based Mr Gutnick sued Dow Jones in the state court of Victoria, which has some of the severest libel laws in any established democracy.

. April 9, 2009 at 11:58 am

“In the case of libel itself, there seem to be two obvious paths, but both are fraught with difficulties. Governments might agree international rules for libel. But with different traditions on how much latitude a free press should have, reaching agreement is bound to be difficult. Alternatively, technology may yet come to the rescue. Software that allows websites to identify the geographical location of a visitor is becoming ever more refined. Eventually, it may allow publishers to block access to anyone in certain countries where libel laws pose too much of a risk. The use of such blocking software—which is also being deployed by repressive governments such as China’s and Saudi Arabia’s—might well offer publishers a persuasive legal defence in libel lawsuits, even if users found a way to obtain an offending article.

Many publishers and Internet enthusiasts will view the spread of such technology as a tragedy, fragmenting the Internet just as it promises to be an engine for global free speech and creativity. But the technology might also push governments into relaxing their restrictions on speech and publication. Voters in Melbourne are unlikely to be happy to discover that they cannot access mainstream websites because of the severity of their local libel laws.”

. April 9, 2009 at 12:02 pm

The press in eastern Europe
Less free speech

Apr 24th 2008 | BRATISLAVA, BUCHAREST AND SOFIA
From The Economist print edition
Tough laws and interfering politicians are shrinking media freedom

Media freedom
Hacks v beaks

May 8th 2008
From The Economist print edition
Rich people and bad laws mean tough times for free speech

Europe.view
Over a barrel

Nov 8th 2007
From Economist.com
The oily politics of silence

The internet and Malaysian politics
The perils of modernity

Mar 13th 2008 | KUALA LUMPUR
From The Economist print edition
The government’s cyber-enthusiasm comes back to haunt it

Media freedom in Africa
Watch what you say

May 9th 2002 | HARARE
From The Economist print edition
Or you could end up in jug

R.K. April 9, 2009 at 12:30 pm

I really like today’s image.

Tristan April 9, 2009 at 1:56 pm

“For instance, if you said something true but commercially harmful about a company on your website, they might go after you, your internet service provider, or the company that runs the server your site is on. Any of them might feel pressured into removing the statements, rather than face litigation.”

Don’t you know we’re in a global recession? We need to shore up the rate of profit! Bad press, true or not, is bad for profits!

. April 9, 2009 at 5:16 pm

Guide for Bloggers and Non-Profit Organizations About Writing With Libel in Mind

This is a guide for bloggers and non-profit organizations about writing with libel considerations in mind. The guide discusses the elementary principles of libel law and explains how to prepare for and conduct a pre-publication libel review. It is particularly important to have a third party, not otherwise involved in the preparation of a report or blog post that criticizes individuals or organizations, compare all possibly-defamatory statements with the sources for those statements.

BuddyRich April 9, 2009 at 11:04 pm

Surprisingly enough, at least with regards to the 4th estate, this is one area where the US is a leader… but is it for the better?

http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

It is a legal precedent that basically set the standard for libel and defamation that the defendant had to prove what was written was known to be untrue by the writer. Setting the bar of libel of being “actual malice”.

OTOH Canada’s supreme court rejected Sullivan in 1995, it’s only just recently a story in Ottawa’s own Citizen that made it to the Supreme Court that might be precedent setting.

http://www.cbc.ca/canada/ottawa/story/2009/02/18/scc-libel.html

However what the paper is proposing as a test for libel is crazy… I do think newspapers should be in the business of reporting the truth, at least trying too… a strong libel law keeps them honest.

However one thing that should be protected is opinion, even the US has no specific protection for opinion (though certain states have done it at their level…) Of course that could just lead to a lot of op-ed pieces and less actual journalism… which I don’t think is necessarily a good thing.

Milan April 9, 2009 at 11:12 pm

I actually think we should be be free to defame people.

Short of inciting hate crimes or genocide, the value of free speech is greater than the importance of hurt feelings.

Tristan April 10, 2009 at 12:54 am

“Short of inciting hate crimes or genocide, the value of free speech is greater than the importance of hurt feelings.”

What about racism which falls short of this standard?

Milan April 10, 2009 at 7:10 am

I’m not sure.

Obviously, racism is repugnant and unjustified. That being said, it isn’t necessarily obvious that making racist statements a crime is an approach that will do any good. For one thing, it would leave the courts with a very difficult job of interpretation. How would a law deal with racial satire, or with the discussion of heritable genetic characteristics that some people might consider offensive to have ascribed to a racial group (say, the higher rates of genetic disorders and hereditary diseases experienced by Ashkenazi Jews)?

I think it would be very hard to create an anti-racist-speech law that would make clear, before a trial, whether any particular statement is acceptable or not.

Threatening people verbally is already a crime in Canada, and is arguably much easier to interpret than whether a particular statement is racist or not.

Tristan April 10, 2009 at 9:28 am

Recently, at York, the Hilel society destroyed what they could of an entire run of the YorkFreePress newspaper because of a cartoon portraying Gazans as concentration camp inmates. That seemed to me a pretty outrageous rogue denial of free speech.

Peter April 15, 2009 at 7:12 am

The value of free speech comes from the relation between unrestricted discourse and the truth. You do a great disservice to the institution of free speech when you allow untrue damaging statements. Whose interests would it serve? I’m fiercely iconoclastic, so I have no qualms about taking shots at people (especially public figures) on the basis of fact. I just don’t see how being able to accuse random people of raping children without evidence is desirable, or justifiable. In order for free speech to have a value, it has to promote public discussion that hopefully narrows in on the truth, rather than serve as a con artist’s tool for obfuscation.

This isn’t directly on blogging and libel, but one recommendation from the defendants of the McLibel lawsuit was that public money should be made available for the defense of those accused of libel or slander by corporations (as a human rights issue). It would relieve the need for deep pocketed litigants to set precedents as required by MacManus.

Milan April 15, 2009 at 10:12 am

I have no qualms about taking shots at people (especially public figures) on the basis of fact. I just don’t see how being able to accuse random people of raping children without evidence is desirable, or justifiable.

While I generally agree with this, there is an issue about who gets to decide what counts as true. This is especially true when it comes to satire and art, since they don’t always tell their truths in a direct way. There do seem to be a fair number of things one could justifiably call ‘true’ but which some judges and juries would consider defamation.

Is it better, then, to give the courts broad powers and risk legitimate speech being suppressed, or enforce strong free speech rights and sometimes have to deal with people spreading malicious untruths?

Peter April 17, 2009 at 5:45 am

It is better to err on the side of free speech, but you’ve executed a subtle shift in your position. You’ve gone from “I actually think we should be be (sic) free to defame people.” which allows for deliberate falsehoods, to (legitimate) concern over areas where the status of certain claims are questioned or unknown. This type of concern relies on reasons I gave for the value of free speech – its fundamentally truth tracking. We need to protect claims that will ultimately become false when an issue is uncertain, because this is exactly where free discourse is required to reveal the truth. So while it is reasonable to protect statements made in good faith that ultimately are false, it is a far cry from “people spreading malicious untruths.”

I would like to make two other, brief points. (1) If you remove the truth-tracking element allowing defamation, then you also have to allow hate speech by extension. (Hate speech – not incitement or criminal facilitation.) The R v Keegstra decision depends on an internal evaluation of the value of the protected speech, which I believe is incoherent, but is present in our law nevertheless. Despite the fact that I feel that making an judgment about the value of speech that is internal, in the sense that it defines the space of protection for an utterance prior to evaluation, changing this to an intellectually defensible policy that prohibits hate speech will still depend on the courts’ power to assess matters of fact, and I am comfortable with them doing so. At its core, the prohibition against hate speech rests with the false nature of the claims.

(2) Most of the conversations where claims are indeterminate probably wouldn’t involve defamation. Protecting the right to advance ultimately incorrect theories are critically important for the social and hard sciences. Claims about an individual’s morality, or criminality, etc, will be contestable, but I don’t see why sticking to the facts is a considerable detriment. Rather than saying, “I know Jones committed this crime because his alibi doesn’t hold up.” when you have not actually witnessed Jones committing the crime, what is the problem with saying, “I suspect Jones of committing this crime because his alibi doesn’t hold up.”? We absolutely need to protect academic freedom, but there is a difference in kind between those cases and defamation cases. Lastly, substantiating facts in defamation cases are often considerably easier. It’s not a debate over the nature of the universe. Either Jones was home, or he wasn’t. Maybe he was out boffing someone’s wife, so you can’t necessarily conclude and claim he committed the crime, but commonsense will delineate the case very easily. Before Jones comes clean, your claims, especially if you limited them to the facts, and your suspicion, which you identified as supposition, seem perfectly reasonable. After the boffing alibi is verified, it would be prudent to change your claims and reasonable for others to expect you to do so.

. April 17, 2009 at 11:43 am

R. v. Keegstra, [1990] 3 S.C.R. 697 is a landmark freedom of expression decision of the Supreme Court of Canada where the Court upheld the Criminal Code of Canada provision prohibiting the wilful promotion of hatred against an identifiable group as constitutional under the freedom of expression provision in section 2(b) of the Canadian Charter of Rights and Freedoms.

Milan April 17, 2009 at 11:52 am

You’ve gone from “I actually think we should be be (sic) free to defame people.” which allows for deliberate falsehoods, to (legitimate) concern over areas where the status of certain claims are questioned or unknown.

This is a very good point. I find it difficult to deal with the issue of free speech in a way that doesn’t lead to ethical contradicitons. As with many such ethical conflicts, the solution may be to abandon hope of dealing with it in terms of abstract rights and think only in terms of utilitarian consequences. That being said, most of the utility associated with free speech is the consequence of the system of norms and rules that surround it, making that approach somewhat circular.

So while it is reasonable to protect statements made in good faith that ultimately are false, it is a far cry from “people spreading malicious untruths.”

Dealing with free speech in a democratic society requires adjudicating between competing claims about what is true or untrue, what is malicious, what constitutes hate speech, etc. I am not sure if such adjudication is better aided through a very strong and clear legal protection for speech, such as exists in the United States, or more on the basis of case law, as in Canada and the UK. I am also not sure if there are never legitimate grounds for being malicious. For instance, I may honestly hope for the total failure and dissolution of a company, the fall of a government, or the popular or political downfall of an individual. If I do feel in that way, must I be held to a higher standard when it comes to the accuracy of what I say about the entity, when compared to someone who doesn’t feel so negatively towards it?

At its core, the prohibition against hate speech rests with the false nature of the claims.

I am not sure if hate speech can really be considered true or false. It may be false to claim that members of one ethnic group secretly control the world, but it is difficult to use facts to counter an argument that an ethnic group is somehow morally or spiritually inferior. While such moral views are repugnant, they don’t have the kind of truth value that can be refuted through factual analysis.

In the end, perhaps the solution is to consider a statement defamation only in situations where the accuser can factually prove it to be false, and the balance of evidence suggests that the statement was not made on the basis of an honest mistake or an interpretation that seemed valid at the time to the speaker. Such an approach would permit a lot of awful things to be said, but it would safeguard the right of people to say things that are important but unpopular.

Peter April 18, 2009 at 6:07 am

“I am also not sure if there are never legitimate grounds for being malicious.”

The problem is not malicious attacks. Savagely condemn Jones for adultery. Tell his wife. Vote to impeach. What you do with the truth is up to you. This isn’t a conversation about the ethical or stylistic concerns of outing someone. We may have that conversation if you desire it, but so far, I’ve tried to remain myopically focused on how the value of free speech lies in its ability to help secure truth and the implications that has for limitations on speech, because truth is an affirmative defense to slander and even to hate speech.

My original impulse to say that the operative word was “untruths”, is misleading and liable to through us back to the beginning of the interchange. My apprehension has to do with intent. The phrasing of, “people spreading malicious untruths.”, invokes images of someone deliberately spreading rumors and lies to cause strife or for personal gain, opposed to citizens disagreeing in good faith. There is just something about the ordering, those words together, that causes me, perhaps incorrectly, to interpret it in that manner, and as such, I feel there is a clear differentiation from those who act out of positive intent, even if they have tendency to promote epistemologically strong or harmful claims.

“… must I be held to a higher standard when it comes to the accuracy of what I say about the entity, when compared to someone who doesn’t feel so negatively towards it?” The short answer is “Yes”.

Here is where the analysis gets a little more complicated. Separate the types harm that might accrue as a symptom of your speech. Your ideas might be unpleasant, challenging, frightening, or repulsive to other individuals, or you might cause a public panic for leading us to believe that aliens are invading. I dismiss these types of harm. Your examples don’t track the issue as closely as I would like, because with the exclusion of unsettling ideas you are perfectly free to have apocalyptic visions. The harms in those cases don’t come from besmirching an entities’ reputation. And this is critically important because the assumption about the default reputation is that it must be justifiably undermined – one is proven innocent until proven guilty, if you will.

Bare with the tangent for a second. One reason to insist on a higher standard of accurate reporting is the tendency of strong feelings to influence results. I’ve already suggested that accurate reporting is not a serious detriment to free speech since you are free to report the fact that Jones alibi does not hold up as well as your supposition that this suggests he might have committed the crime. Science is supposedly done from a neutral perspective, the so-called Archimedean point (call off the dogs Tristan – this polemical, not necessarily a statement of fact). This is because we recognize individual motivations compromise our ability to find the truth. Just translate this idea to free speech and we can see why we should hold you accountable, and expect you to declare your biases and why, if you want to be taken seriously, you will be fastidious in your reporting of (only) the facts. You might point out that optimism and positive motivations have the same effect and it is true, but is irrelevant because we are not concerned with the nature, but merely the existence of an influencing factor that leads to error. Bringing this back to the tangential point, this works well with the default assumption surrounding reputations because the tendency of the person who insists Jones is innocent will be to report the fact that merely his alibi doesn’t hold up because this is the least damaging account, (Assuming the reporter is acting in good faith and doesn’t cross over into deliberate omission.) whereas the person who hopes Jones is guilty is at risk of over-generalizing – his alibi doesn’t hold, he must be guilty.

Returning to our analysis of harm, reputation harm is a valid concern and is the motivation behind hate speech restrictions. I am a very strong supporter of free speech, so I disagree with all arguments that claim social utility from suppressing damaging facts justifies restrictions on true speech. As I said, we can have the cost-benefit-ethics conversation about outing people if you desire, but the essential point, which I cannot stress enough is that it must be true speech, for it is only that property which may be brought into contestation with the loss of utility. While I don’t believe the loss of utility should override the truth, I do believe that harm to reputation is serious enough to justify the default assumption surrounding reputation. While in it generally good to err in the favour of free and open speech (don’t forget this is due to the positive benefits of free discourse), the case of hate speech provides a special area where the specific types of harm and social disutility tilt the balance to err on the side of restriction.

Let us further analyze the harm. Victims of hate speech sometimes try to claim a revulsion of the idea, that they have been personally shocked, and are deeply upset because they were confronted with a harsh reality where people don’t like them or say bad things about their ethnic, religious, cultural, ideological grouping. This would fall into the first category of harms. I am generally unsympathetic to those claims. The harm that stems from compromising ones reputation is that others will treat you differently, or society will become disposed to treat a group poorly. This is unequal, and without an appeal to the truth, undeserved. Logically, an actual difference does validate difference in treatment. Since the reported differences are likely to be untrue or inconsequential, the practice of treating each group differently is unjustifiable, and the historical standards we have applied to different groups have been monstrous.

This is really what I mean when I said, “At its core, the prohibition against hate speech rests with the false nature of the claims. Analyze the counterfactual. Suppose someone had factual information about a distinction between racial groups. Truth is an affirmative legal defense (properly using the technical term) for hate speech, slander and libel. By definition you cannot be guilty of those crimes if you commit harm using the truth. I don’t subscribe to arguments in favour of suppressing the truth because it is harmful. So you don’t have to be concerned about your ability to be malicious. My point is that the truth is legitimate grounds to be malicious. Falsehoods, and incorrect distinctions are not, and intent can usually be used to differentiate theories proposed in good faith from baseless allegations.

“I am not sure if hate speech can really be considered true or false.”

I think most cases of it can, and the cases that can are among the most serious. However, I will admit this is not an uncommon concern. Let me motivate my claim first. A significant number of sustained racial condemnations usually involved some half-baked story about a global conspiracy, holocaust denial, or reporting genetic differences, or the claiming a lack of intelligence or motivation in some group. All of these rely on factual claims. Just push the counterfactuals. Find the hard working Mexican. Find the African American that is more intelligent than the racist. I treat these as the most dangerous because such ideas can be institutionalized.

There is a second category of errors that involves mistaking a trivial difference as an appropriate moral consideration. There is a difference in skin colour between most African-Americans and myself, but that doesn’t justify oppression. You can combat these by relentlessly pursuing the logic behind why the difference is relevant. “Why does skin color justify beating others? Oh look, what lovely hazel eyes you have. I suppose this means I get to kick you in the…” Morality is harder, because your opponent will probably seek to define it and could make it tautological. E.g. Everyone else is immoral, because morality requires being me. But if you just keep pushing back, soon their morality will become so disfigured that their claims are unlikely to persuade anyone else, and I most people won’t dive into that level of absurdity.

Your criticism is common because many people worry about the inherent irrationality of racism. Racist beliefs are often self-reinforcing and resistant to argument. Racial slurs and euphemisms are like this. While this is true, I must point out that almost any hate speech law (that isn’t an exhaustive list of words that people just cannot say) will fail, because these utterances are just sounds which are devoid of content. I purposely listed those above as “sustained”, because these utterances usually require more sustained worldview if one were to question why being called such-and-such is derogatory, and what justifies acting in a derogatory fashion towards a specific group. Some worry these types of hollow expressions are more dangerous because they are prevalent and irrational since they posses no content to refute. I think you can easily push the people who say such things into making more substantive claims that are falsifiable. The very utterance itself suggests a worldview filled with beliefs to justify the activity. The only sort of purely irrational utterances that doesn’t usually underlie belief statements are usually externally created, and pathologically consumed for aesthetical reasons – I’m thinking of racist music as sort of the pure example; just chatting derogatory terms to music, etc. So a counter example exists and I have no idea what to do with those types of utterances, but I think the most racist statements underline falsifiable claims.

Milan April 23, 2009 at 4:31 pm

Obviously, the matter of what sort of speech should be permissible within a society is a complex one.

Also complex is the question of how states should treat differences between their laws and those abroad. Personally, it seems simplest for defamation laws to only have force when the accused is in the same country as the court. That might prevent you from ever visiting a place, but at least it wouldn’t prompt attempts at across-the-border asset seizures or extradition.

Peter April 24, 2009 at 7:56 am

I agree in spirit, with small notes about practice. I’m reasonably sympathetic because I think the west should have been unapologetically assertive of free speech rights in the Danish cartoon case. I’m certainly not going to promote people behaving poorly to quash political commentary. What you suggest makes perfect sense for that model.

However, I think we should also consider the global model, where international figures might engage in a dialog with either other. Your statement doesn’t preclude this, but I think it is important to stress that local law still serves as a minimum conduct for acceptable speech, so people and organizations from other countries may still have recourse to bring defamation charges. On the defendant’s side this affords protection from kangaroo courts and on the litigant’s side there is still an emphasis on the truth. The tremendous cost to the litigant should be reduced through funds. All of these features are good for free speech.

Tristan April 24, 2009 at 8:34 am

Peter,

The notion of truth will never do the work you’re asking it. And what’s worse, you know it. Truth is interpretation, truth is error. These arn’t fuzzy-duddy things we say when we put our Nietzsche caps on – they describe an inherent limit we run up against when we try to define things truly. Take any interesting instance of hatespeech, and either someone will be able to argue that it’s based on truth – or someone could present a counter case in which it was based on truth, but it was just as much hatespeech.

Tristan April 24, 2009 at 8:39 am

“The only sort of purely irrational utterances that doesn’t usually underlie belief statements are usually externally created, and pathologically consumed for aesthetical reasons – I’m thinking of racist music as sort of the pure example;”

I think you’re using reason in a loose and confusing way here. Reason doesn’t give us ends, it takes us to them (in the modern world). Reason can’t tell us to be racist or not, unless we posit some further end. Say we desire a just and fair society, well then reason will tell us we can’t be racist. But, if we desire a racist society, reason will tell us to be racist.

Peter April 30, 2009 at 9:51 am

Tristan,

Second Post –

I think you’ve missed my point. I am using reason exactly as you have detailed, as a bridge from the end product in the form of an utterance or an action to suggest there are beliefs that inform that result. To some degree I was pointing out the inherent irrationality of racism, but that isn’t the irrational nature of the utterance that I referred to. Perhaps I should have differentiated better and used the term a-rational (or anti-rational) to mark the lack of linkage to content, rather than irrational, which suggests an inappropriate linkage. An a-rational utterance is one completely devoid of content. If the racist wants to claim a reasoned utterance, regardless of what others in society think about whether the position is reasonable or desirable (this would be the level of irrationality), he will have to refer back to a belief with content. Remember that I was addressing this comment, “I am not sure if hate speech can really be considered true or false.” Accepting your claim that, “Reason doesn’t give us ends, it takes us to them”, I am showing how even bare utterances can be pregnant with beliefs and that once I have demonstrated that the subject has beliefs, there is content which I can dispute the validity of.

Historically, utterances have been considered beyond the reach of rational evaluation because they reveal no content. Racial slurs like “N*&&er” are just sounds that have meaning because of a social recognition, however it was asserted that such hollow utterances can’t be connected to falsifiable beliefs. I was saying that they are, because the meaning inherent behind the slurs underlies certain beliefs. Or, going even further, I was suggesting that the utterance of the term itself revealed an underlying system of beliefs that allows for such treatment towards some group. I was following the logic in R. v. Krymowski. http://en.wikipedia.org/wiki/R._v._Krymowski

Briefly, R. v. Krymowski was the famous 2005 Roma hate speech case. The defendant uttered speech targeting “gypsies” at a protest against allowing Roma refugees into Canada. He later went on to claim that “gypsies” was merely an utterance that didn’t refer to the Roma. He won the initial case, but lost the appeal. The judge ruled that “Roma” and “Gypsy” were used synonymously, and that we are allowed to rationally infer the target of his speech. Linking this back to my claims, the identification of the terms as synonymies, allows for the linking between the sound of an utterance and beliefs based on the socially accepted meaning. So when someone says, I just made a sound, “N*&&er”, I may reply that I know what they said, meant, and might reasonably infer some of their beliefs. The extension of this concept has to do with behind able to infer beliefs presumed by the right to utter such statements, which goes beyond R. v. Krymowski, but still enjoys some precedent in the notes on the directionality of Krymowski’s speech.

This tactic requires the opposite of what you are suggesting, it requires that I attribute a rational process to the racist (as opposed to a-rational utterance), although I can understand why you might find it confusing since I believe the position held by the racist is ultimately irrational. Chanting music was an exemplar of a-rational speech, because it is the only thing that could potentially be a truly empty utterance. Consider a case where you started chanting some tune out of aesthetic preference but had no understanding of the words. I’ve suggested that it is only in that type of case that reason won’t bring us back to beliefs implied by the meaning, or act of uttering a term, since there maybe a-rational aesthetic motivations for the utterance.

First Post –

I was following the legal framework, which includes truth as an affirmative defence to hate speech and libel. I’m operating at a much lower level than your in-depth conceptual analysis of truth, because I believe it is appropriate for this conversation – one that is centered on hate speech and the law, rather than one centered on interpreting Nietzsche or epistemology.

I have taken an interesting case – R. v. Krymowski – and I have shown how reason might be used to secure the notion of truth we are talking about. He presented the opposing possibilities – I wasn’t talking about anyone, I wasn’t talking about the Roma, etc, but commonsense allows us to interpret who Krymowski was yelling about and some of what he believes. This operates in exactly the same way that others may assess the truth-value of my claim that I am a penguin. Neither of these makes reference to which epistemological theory of truth I support.

With regard to your much deeper conceptual analysis of truth, Nietzsche’s method is genealogical. It specifically shows how flawed values may still have profound effects on societies through the role such values play in practice. I could, but won’t claim this discussion falls under that category – a discussion about the proper way we should use inherently flawed values-, because I think I can easily establish that I am speaking in good faith, even though I have Nietzschean sympathies. I’m not claiming a correspondence theory of truth; correspondence isn’t required for the social or legal role this notion of “truth” fulfills. In fact the pragmatic theory seems to work quite well here, especially because of Nietzsche’s contributions. Please tell me what part of my analysis requires the correspondence theory of truth. I am saying there are matters of fact that commonsense can settle, I have never once commented on the subject-object relation required by my epistemological stance. Respectfully, I think you are engaged in an entirely different conversation.

Tristan April 30, 2009 at 12:03 pm

Nietzsche has no non-correspondence theory of truth. For Nietzsche, truth is correspondence to the ideal world, and since that world is just a bad idea we get, all truth is falsity. All truth is fixing becoming as a being. However, truth is a condition for the life of the beings which we are. That’s why the thought of eternal return is highest truth, highest error, highest will to power – because it thinks that which is to the utmost not a being – becoming – as a being (the being of becoming).

The reason this is relevant here is that if truth is just the fixation of becoming as being, in various environments, truth can never serve as a relevant criteria of hate speech. All hate speech is truth because it fixes becomings according to an idea. All hates peach is falsity because you can’t fix becomings to an idea. Since this error has value insofar as it serves life – the correct value (whether tolerance or hatred or understanding or genocide) will be determined only by the concrete reality of some situation.

The point of this nietzscheism is not to assert some kind of relativism whereby we can’t oppose hatespeech – but rather to recognize that everything for us is a value, and we determine things as good or bad insofar as they conform to the values we hold. We reckon values to preserve and enhance our power, where “our” means any organizational level of life (i.e. person, community, race, nation, state, the 1st world, etc..).

To deal with hatespeech, just assert some value that opposes it and stand with self-certainty behind that value. We tend to pick tolerance, but Zizek has a good critique of posing problems or racism as problems of tolerance. I think “equal respect and consideration” is a good value, I’ll stand behind that.

Peter May 2, 2009 at 12:07 am

Tristan,

This is exactly what I did not want to happen. I am happy to debate respective interpretations of Nietzsche, but I reassert my belief that this post is not the place to do it. To that end, I will simply say that I disagree with your interpretation of Nietzsche, specifically because your “no non-correspondence theory” (which seems like a pretty confused term) contradicts Nietzsche’s perspectivism. You’re also equivocating like crazy, because you’ve failed to realize that “truth” has different meanings in different aphorisms.

I’ve dealt with this objection already. You are talking about the concept of truth when you say, “For Nietzsche, truth is…” I was engaged in a discussion about the operation of our laws, and the role truth plays in them. Truth is mentioned in the law, it has this function, and this is how it makes sense to use it. Disagreement over the concept is fine, but I can only keep stressing that I had not made any comment about the concept of truth, and that such an investigation was not required to apply to Milan.

Since you have decided to put forward a conceptual challenge about what truth is, thereby limiting what it can effectively do, I have made extremely limited comments on truth as a concept. I note that you choose to ignore my claims that a pragmatic theory of truth can fulfill this role and is inspired by Nietzsche. If you disagree, please tell me specifically how my previous claims exclude a pragmatic account of truth.

Otherwise, I will be happy to continue conversations about interpreting Nietzsche and to what degree pragmatic theories of truth are Nietzschean, with you via e-mail.

Milan May 9, 2009 at 3:04 pm

Another nasty example of how bad defamation law in the United Kingdom is:

British Chiropractic Association against Simon Singh

. June 7, 2009 at 11:18 am

I am glad to say that on Monday I [Simon Singh] will apply to the Court of Appeal in an attempt to overturn the recent negative ruling on meaning in my libel case with the British Chiropractic Association.

Also, Sense About Science have launched a campaign linked to my libel case and focussing on the need to overhaul the English libel system, which is deeply flawed and which therefore has a chilling effect on journalism.

The campaign has issued a statement of support, which has already been signed by an incredible list of people, including James Randi, Richard Dawkins, Ricky Gervais, Sir Martin Rees, Penn & Teller, Stephen Fry, Martin Amis and Steve Jones. It would be terrific if you would also sign up to the statement and (better still) encourage others to sign up. It is conceivable that this campaign could help reform the English libel laws (which unfortunately affect overseas journalists too). Please help us move closer to having a free press.

You can find the statement and sign up at:
http://www.senseaboutscience.org.uk/libelcampaign

. October 6, 2009 at 10:42 am

“In July 2005, Polanski took advantage of the notorious British libel laws to sue my colleagues at Vanity Fair and collect damages for his hurt feelings. It doesn’t matter much what the supposed complaint was—he had allegedly propositioned a Scandinavian model while purring about making her the next Sharon Tate—so much as it mattered that Polanski would dare to sue on a question of his own moral standing and reputation. “I don’t think,” he was quoted as saying of the allegation, “you could find a man who could behave in such a way.” Say what? Anxious for his thin skin, the British courts did not even put Polanski to the trouble of appearing in a country where he has never lived. They allowed him to pout his outraged susceptibilities by video link before heaping him with fresh money. At this point, I began to feel a cold spot forming in my own heart. And then, just last December, while still on the lam, Polanski filed from abroad to have the original Los Angeles child-rape case, in which he had pleaded guilty, dismissed without further ado.”

. October 13, 2009 at 9:52 am

Gag order blocks Guardian from reporting on Parliament

By Cory Doctorow on politics

In a violation of British free speech rights dating back to the 1688 Bill of Rights, The Guardian newspaper has been forbidden by court order from reporting on a question in Parliament. We don’t know who raised the question, what it was about, or where you can find it.

. October 18, 2009 at 6:04 pm

October 18, 2009

England’s libel laws don’t just gag me, they blindfold you
The author who is being sued for libel, says bloggers and scientists are increasingly reluctant to write anything critical for fear of ruin

Simon Singh

I spent Tuesday night at the Barley Mow pub in Westminster, central London, surrounded by 150 people who were outraged at the state of English libel laws. The event, which is part of a series of Skeptics in the Pub events around the country, started with a misquote from Star Wars that set the tone of optimism for the entire evening: “We are more possible than you can powerfully imagine.”

The mob, clamouring for a more liberal approach to free speech, was made up largely of bloggers, academics and sceptics. They all passionately share the same belief, which is that the freedom to criticise fairly and strongly is the cornerstone of debate and progress.

One of the main fears, expressed repeatedly during the evening, was the sheer cost of a libel case. Although the damages at stake might be just £10,000, going to trial can mean risking more than £1m. This means that a blogger has to ask whether he or she can afford the possibility of bankruptcy. Even if a blogger is 90% confident of victory, there is still a 10% chance of failure, which is why bloggers often back down, withdraw and apologise for material they believe is true, fair and important to the public.

. October 20, 2009 at 10:01 am

“But perhaps the gravest judgements against the Honourable Mr Justice Eady are those made by legislators in the United States. Such is the reach and severity of his illiberal rulings that four states have so far passed what are, in effect, Eady laws, and Congress is currently considering a federal bill whose purpose is to defend US citizens from his judgements, and the English law he interprets. The Eady laws arise from his encouragement of libel tourism: allowing cases with only the most tenuous connection with this country to be heard in London, and using them to stamp on free speech all over the world.”

. December 23, 2009 at 12:49 pm

Top court transforms press freedom with new libel defence
Updated law extends defence to new media

KIRK MAKIN
From Wednesday’s Globe and Mail
Published on Wednesday, Dec. 23, 2009 12:00AM EST
Last updated on Wednesday, Dec. 23, 2009 2:28AM EST
JUSTICE REPORTER

The Supreme Court of Canada transformed the country’s libel laws yesterday with a pair of decisions that proponents say will expand the boundaries of free speech.

The court ruled that libel lawsuits will rarely succeed against journalists who act responsibly in reporting their stories when those stories are in the public interest.

It also updated the laws for the Internet age, extending the same defence to bloggers and other new-media practitioners.

Chief Justice Beverley McLachlin said that Canada needs to keep in step with several other Western democracies that have provided greater protection to the media.

“Freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognized,” Chief Justice McLachlin said in a pair of 9-0 decisions.

Although the court acknowledged that free expression does not “confer a licence to ruin reputation,” it argued society is best served by fearless commentary and investigative journalism.

. January 18, 2010 at 6:56 pm

English libel law
Taking away the welcome mat
Dec 30th 2009
From The Economist print edition

Overdue reforms may be on the way

MOST tourists come to Britain for the palaces, the pubs and the history. But a few come to take advantage of England’s ferociously claimant-friendly libel laws (Scotland’s are different). A string of cases in which plaintiffs with tenuous links to England have taken advantage of these rules has fuelled worries about legal “forum shopping”.

Belatedly, politicians are taking notice. On December 27th Jack Straw, the justice secretary, said that a hurriedly assembled (but as yet unnamed) panel of lawyers, academics and newspaper editors will meet to ponder improvements, with a plan for reform due by March.

. February 22, 2010 at 11:20 am

My ongoing libel case goes to the Court of Appeal on Tuesday, when the meaning of my article will be decided by three of the most senior judges in the country. Whatever the outcome, the ruling could have a major impact on how English libel laws affect free speech in Britain and around the world.

I have written about the case at length in previous emails, so I will not summarise the story again. In fact, this will be the last time that I mention the libel case until the whole legal process has been completed. So, if you want to keep up to date with the case then please track events on twitter by following @slsingh or #libelreform

My final words on the subject are simply a plea to sign up to the petition for libel reform. English libel laws have a damaging impact on writers around the world, so we welcome signatories from all countries. My own writing has effectively been halted for almost two years because of the extortionate costs of libel and the painfully slow legal process. More generally, the libel laws can effecively crush criticism by bloggers, scientists, journalists, humans rights organizations and many others. Please sign up at http://www.libelreform.org/sign

If you would like more information on why English libel laws are so oppressive, then please visit
http://www.libelreform.org/news/432-simon-singhs-weird-idea-that-might-just-work

And, if you have already signed the petition, then please encourage others to sign up. If you want to remind yourself of the reasons that might persuade your friends, family and colleagues to sign up to libel reform then please visit the link at the end of the previous paragraph.

. April 7, 2010 at 12:02 pm

“The case (which has not come to court) is the latest to be cited by a coalition demanding changes in English libel law. Others include that of a British cardiologist, Peter Wilmshurst, who criticised the safety of an American-made medical device at an American conference—but is being sued, personally, in England. The law, critics say, unfairly protects reputation at the cost of the public interest. That hurts journalists, and scientists and anti-corruption campaigners. They also worry about “libel tourism”: foreigners fighting cases in English courts that would be unsuccessful elsewhere.

On March 24th the justice secretary, Jack Straw, said Labour would introduce a bill reforming libel law after the election. It would create a statutory “public interest” defence and restrict libel tourism. Campaigners welcomed the promise, which is a defeat for some senior judges who have argued that nothing much is amiss. The Conservatives and Liberal Democrats also support reform.”

. August 11, 2010 at 10:09 am

Obama seals off US journalists and authors from Britain’s libel laws

President Obama yesterday signed into US law legislation aimed at protecting American authors, journalists and academics from Britain’s libel laws.

The Securing the Protection of our Enduring and Established Constitutional Heritage Act, known as the SPEECH Act, makes libel judgments against US writers in foreign territories unenforceable if they are perceived to counter the First Amendment right to free speech.

The British-based Libel Reform Campaign has expressed concern that Britain’s reputation is being damaged internationally due to what it calls “our restrictive, archaic and costly libel laws, which cost 140 times the European equivalent.”

The SPEECH Act is inspired by the Libel Terrorism Protection Act passed by the New York State assembly in February 2008, after American academic Dr Rachel Ehrenfeld was sued in London by an Arab businessman Sheikh Khalid bin Mahfouz.

Only 23 copies of her book Funding Evil were sold in Britain compared to thousands distributed in the US. Mahfouz did not launch an action in the US courts because of First Amendment protection.

. May 5, 2011 at 6:04 pm

Businesses and individuals should take heed from these cautionary tales, says Michael Smith, since case law has already established the Internet is not the haven of free speech that users believe, and there is no such thing as anonymity. Canadian judges are generally willing to order Internet service providers to disclose the identity of people using pseudonyms to criticize others, he says.

Even forwarding an email or posting links on a webpage to another site could be construed as publication under Canadian libel laws, particularly since they have not been updated to take the Internet age into account, Michael Smith warns.

. March 4, 2012 at 7:43 pm

Libel law, by contrast, badly needs reform. It is so plaintiff-friendly in Britain that London is the venue of choice for foreign potentates seeking to sue critical compatriots. A new libel law should give journalists greater recourse to the defence that they were acting in the public interest.

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