True Defamation [pdf]
journaloffreespeechlaw.org
journaloffreespeechlaw.org
A lot of the impulse for this paper seems to be based around "the [claimed] right to a fresh start":
Moreover, if reputational interest is understood as a presumption of good standing, then there is another reason to prohibit true defamation, one that depends upon the presumption, namely what might be called the right to a fresh start. By “a fresh start,” I mean the right to have a misdeed from long ago eventually cease to be part of one’s current reputation, so that it ceases to have any impact on one’s life. ... The interest in a fresh start stands against this veritable life sentence—an interest, instead, in being treated as a new person, no longer associated with a misdeed from long ago.
Yes, if you grant that such a right exists, it might make sense to make it illegal to point out true facts about someone's past. And I can easily see why many individuals would want a "fresh start". But does society as a whole benefit from having such a right? I'm far from convinced that it should be any sort of universal right, and don't see any good way to define when it's applicable and when it's not. Are there good solutions for this problem somewhere?
There are no simple solutions to a problem this complex as human trust.
But I really do not see, how I can I trust humans more, if it would be illegal to say true things about the past.
Truth may never be hidden, if you want real trust. And there need to be more consequences of lying.
And people should accept, that people change. If someone was stupid in their teenage years 10 years ago, then most can actually assume, that they changed a bit.
But if someone was lying and stealing 20 years ago and is caught doing it again yesterday, I will probably also not trust this guy in 2 years, unless he can convincingly explain why and how he changed.
The problem to be solved here is not the liability owed by the reporter of the truth, but rather the way in which our reptilian brains fail to balance that truth against an undoubtedly bigger picture.
As you correctly say, 'there are no simple solutions to a problem this complex as human trust' but your last point is telling. Let's assume your villain provides proof well beyond reasonable doubt that he has actually changed for the better the fact remains that most people will always remember the fact—even many, many decades later. Moreover, I'd suggest that incident forever changes one's perception of the person even if it's almost imperceptibly small.
I claim no great expertise in human nature but from my observations of others and of myself I'd suggest that it is human nature to retain these negative images even if one has no logical reason whatsoever to do so.
It seems to me this is one of the basic underpinnings that drives defamation and why so many have such strong opinions about it.
For instance, to my knowledge I've never been defamed in public nor do I know of any reason why anyone would bother defaming me. I'm hardly controversial, and although I'm certainly no saint, I can't think of anything I've done that's bad enough to warrant someone pursuing defamation against me. (No doubt, there have been many occasions where I've been called an idiot or perhaps even a ratbag in private but I don't consider these amount to defamation.)
Nevertheless, I remain mindful that I could be wrongfully defamed in public for the very reason that others will remember the fact well into the future even though the claim was without merit.
Perhaps this is an evolutionary trait developed out of self-protection or similar, but whatever the underlying reason many remain mindful of the potential damage defamation can cause whether a claim is factual or not.
Incidentally, I know someone who committed a misdemeanor as a youth many decades ago and has been well behaved and kept out of trouble since. That said, on rare occasions someone will still mention the fact.
No doubt the right to have certain facts about oneself forgotten is a complicated matter, and if opinions were scaled just about everyone would have a different view—and, no doubt, those views would again vary according to one's perception of the claimed or actual wrongdoing (if plotted, I'd venture to suggest everyone's opinions would be a 3D graph and no two graphs would the same).
As the old parable goes 'try to please all and you'll please none'.
Yes. But I do not want to try to please all.
In case of doubt, for the (potential) victims.
I am dealing right now with a case, where a pedophile tries to sneak into some semi public group activity/festival I am part of. The most frustrating thing is exactly this, some people saying the past where he was convicted is gone (or the conviction wrong) and he changed. Except it isn't and he has not changed (I am certain of because of some things I have heard him say, which are sadly not recorded). And if the conviction would not exist officially anymore, I would have allmost nothing solid against him, that he is in fact not just some weirdo, but a dangerous weirdo who should not be welcome, where I go with my children.
edit:
"Let's assume your villain provides proof well beyond reasonable doubt that he has actually changed"
And if there is no doubt, there is no doubt. Then it would be fine. But I want to judge myself, with as many facts as I can get and not blindly trust. I know people can change. But if people hide their past, I assume they have not actually processed it.
I reckon your example illustrates my point that people never quite forget any accusation whether true or false. And it's why I suspect it may be evolutionary or partly so (but I've no proof of that).
Why? Well, the person to whom you are referring would be perceived by the vast majority to be a menace to society and potentially very dangerous. His past actions and behavior were so hideous and unacceptable that they would never forget what he'd done. And I'd posit this makes sense from an evolutionary perspective—if we forget about his past actions and or hide facts about them then we do so at our peril. Keeping such knowledge is thus a survival instinct.
Even if it's demonstrated he's changed, it's nevertheless better people keep knowledge of his actions and behavior because there's always the possibility he's a recidivist or that he could become one in the future. Clearly, it's not in society's best interest to either hide his past actions or to forget about them entirely.
That doesn't contradict what I said earlier (and perhaps I should have been more precise in what I said). However, your case is extreme and it should always remain so. The other extreme is where some trivial misdemeanor could be blown up out of all proportion and ruin one's life.
Now let's consider a hypothetical case where someone's life can be ruined through a false accusation. Person A intensely dislikes person B for whatever reason (it's irrelevant) and secretly spreads false rumors that B is a pedophile when he is not. This example is NOT in the same league as say the one I used earlier where people called me a 'ratbag' behind my back, it's altogether something much more sinister and dangerous.
Person B cannot protect himself because he doesn't know where the rumor started (or cannot prove his suspicions, or he may be altogether unaware of the rumor and never learn its consequences) and therefore he cannot sue in a defamation case. And likely worse, those who hear or become aware of the false rumor about B will never forget that they've heard it. Moreover, those who become aware of the rumor may not inform B of the fact, B may never learn why he's always being shunned.
Mud sticks. What remains stuck on B may only be a tiny trace—and he may not even be aware it's there [if he's unaware of the rumor]—but nevertheless it's still there! And its presence has consequences.
Personally, it's hard for me to think of any action that's more despicable than what A did. I'll refrain from stating what punishment I'd dish out to A if I were ever given half a chance.
These examples only illustrate why defamation is such a difficult and vexed matter.
If the motivation for banning facts is to prevent people from making non-PC judgments based on those facts, then what to do about making true statements like "Bob is Jewish", or "Vic's legal name is Vikram", which might cause discrimination? Is that True Defamation?
BTW, True Defamation is illegal even in the modern day, in UK, if the the defendant can prove truth sufficiently, with some recent protection since 2013. https://en.m.wikipedia.org/wiki/English_defamation_law
In general, making laws to prevent people from doing reasonable things that cause other people to misbehave, is dangerous ground. Usually better to intervene at the stage of the actual misbehavior.
In other words, accept responsibility and earn back your reputation.
Hiding the truth seems like the exact opposite of that.
It seems like “true defamation” could be a lie of omission. If someone harps on about a past misdeed but omits N years of atonement, that’s misleading, even if true.
This depends on risk of course. You and society shouldn't be exposed to undue risk because of that assumption. But limitations on the offenders freedom to - for instance - perform certain jobs after their release should be decided by a court, not the general population.
Accumulated years of not repeating the mistake. And people will disagree on how many are necessary.
> And people will disagree on how many are necessary.
I think you've hit the nail on the head, there is unwritten large variance timeframes that people "need to have met" for atonement, it isnt an easy solution.
The radiation continues to affect, long after the nuclear explosion.
Imagine I’m considering marrying someone. Do I really not have an interest in knowing their past misdeeds?
A better way is to have strict rules on what you can take into account for certain types of decisions: renting a house, hiring an employee, offering an insurance policy.
But there is no right have the world forget your misdeeds.
(The only exceptions to this should be when you contractually sign away this right, such as a lawyer who enters into a contract with a client and cannot give all their private correspondence to the opposition. Or a soldier who signs away his right to speak freely about troop movements, etc.)
Why? It’s possible to do and to teach. I’ve had many such leaders and I’m consistently told I meet these standards so its imminently possible and achievable
There are so many amazing people and leaders in this world that there’s ZERO reason to give someone who has acted badly any additional opportunities to hurt or retard the progress of even one person
I expect to be held to the highest possible standard as a leader and hold leaders to standards of perfection
There are way too many amazing people have not been given enough opportunities for us to give second and third chances to people who have demonstrated that they cannot take care of their people as primary priorities
We see the opposite in public discourse. Mobbing private individuals is perfectly fine, criticizing organizations or their leaders (public figures) is punished harshly.
Organizations destroying the reputation of private individuals is also perfectly fine. Everyone believes the leaders and corrections or hints that the leaders are doubtful characters themselves are suppressed.
Truth is really incredibly important and not having the freedom to speak truth one knows and which one feels are important is a tremendous imposition.
Ones reputation isn't like ones body parts-- but the truthful speech of the person who would speak against you, that's the true body part.
I’d say it has its ups and downs.
One upside is that the court does not have to delve into the question of truth as a part of legal proceedings.
It’s also worth noting that “true defamation” is only legal when you can prove it’s true. So it’s not really a freedom to speak truth, just a freedom to speak what is provably true.
I think the main problem with the Swedish law is that it places too little emphasis on the intent behind the “true definition”. For example I think it’s wrong to “defame” someone in order to gain control over a company, in some cases even if the statements are true. But I think it’s a very different thing to indite someone for telling their life story in a book, because a central part of their life is that they were the victim of a crime (see e.g. the chancellor of justice’s prosecution of Cissi Wallin for her autobiography).
That's only an upside for lazy jurists. For the people who say true things and punished for them, it is only repression.
I think should follow the basic view that we have always had: that the courts may consider anything they have knowledge of, the free evidence evaluation.
The primacy of freedom of speech must central, and I think we should think as if though everyone were psychologically very strongly compelled to speak about what he does and that we should have the presumption that he speaks honestly.
Truth is also special, and rightly holds a special place in people's psychology and in religion.
For example, let’s imagine we are in a hypothetical future Sweden where “true defamation” is legal and that somebody is spreading false rumors that you are a rapist. Now you have to decide if you should take them to court or not. If you don’t then people will think “oh it must be true then”. If you do then you will have to prove you are not a rapist, under a balance of probabilities test. This is much harder than defending yourself from a criminal indictment, where the burden of proof is on the prosecutor / victim. So what do you do? If you do go to court and fail to prove your innocence then there’s now an official document that essentially states you are a rapist.
The defence is the truth of the statement, or at least in its non-recklessness and that is provided by the party that is sued.
The American approach on this clearly works. There's a recent US case of defamation some dead children with clearly excessive fines, but that's also in the other direction.
Religion says that A's unverifiable statements are sacred and not allowed to be criticized, but B's are heretical and punished.
Some religions say that unverifiable statements are sacred, but I don't have any kind scriptural infallibility in the variant of mine that I hold to. There's also an element in it equating God with truth, which would imply that going away from truth, or not seeking it, is going away from, or not seeking God.
I don't if this is unique to my religion, but if it is, then it fits me very well.
While such things exist, they are not synonymous with religion.
It also depends on what you mean by verifiable. If someone has a religious belief they are likely to think they have reason for what they believe. This is true of any contested belief in any field.
There's only really been two cases. One is a case where a Swedish Christian Democrat politician brought up what the opposing council in a certain dispute had done previously and was convicted of defamation for this. Another is a case where a Swedish journalist was convicted of defamation for that he brought up that a guy who was suing people for all sorts of rubbish was himself criminal-adjacent in that he had been prosecuted for animal cruelty, but had remained outside the country until the state of limitations came into effect.
And the echr gives a lot of leeway to national laws
Edit: And the EU charter is basically the ECHR but with some minor additions and it's own court.
Yes, but the decision of what is contrary to the ECHR is made by the ECHR and they always give pretty ample margins to member states. The ECHR is supposed to be a lower limit on what protections are given. Not the ultimate authority on what protections should be given.
Maybe they'd rule these cases in violation, all I'm saying is that I wouldn't be shocked if they didn't
> the EU charter is basically the ECHR but with some minor additions and it's own court
No, actually it's completely different from the ECHR. The ECHR is a treaty which applies to all actions and legislation of the parties.
The EU charter is specifically targeted at EU law. It is a protection against interference originating in EU law and its scope applies only to EU law and its implementation.
So if your rights are violated due to an EU regulation you have recourse because of the charter, if they are violated due to how your country implemented an EU directive you have recourse, and if they are violated by your country because of how they are enforcing some legislation you have recourse.
However the member states themselves could pass their own law completely violating these principles and as long as it doesn't infringe on EU competences you'd have no recourse (well, you'd still likely have the ECHR)
I believe that the government would have lost if this had been brought to the ECHR.
To me it's obvious that you either ignore or is unaware of constitutional limitations of the criminalisation of defamation, notably in ECHR and three constitutional laws. If you spread defamatory 'truths' in a free speech setting where the victim can defend themselves you'll easily get away with it.
The New York Times had an article a few years ago about Swedish defamation law in the context of the #MeToo movement, so there’s another example for you.
https://www.nytimes.com/interactive/2022/03/15/opinion/cissi...
And it's not an article, it's an opinion piece by a person who also claims to have been mistreated by Virtanen and helped spread Wallin's statements about him: https://www.svt.se/nyheter/granskning/ug/reportern-skrev-att...
Edit: Should probably add that there is very little chilling from our defamation criminalisation, it's commonly used in far right political activism for example. The Lamotte case is an outlier where I think the victim didn't engage the cops and ran his own civil case against him instead.
No, it's absolutely not irrelevant. The court refused to consider whether Wallin's claims were true because it held that they would be criminally defamatory even if true.
> In this case, despite Mr. Virtanen’s being one of the highest-profile writers at the country’s largest newspaper, the court concluded that he was not enough of a public figure to justify public interest in his personal conduct. Ms. Wallin’s posts, in other words, were not justifiable, and as a result, it didn’t matter whether her account of their encounter was accurate. “The court will not review whether the statements were true,” the verdict read.
In a country where truth is a defense against defamation charges, like the US, the court would have had to have considered whether Wallin's claims were true. Because Sweden does not consider truth a defense Wallin didn't even have the opportunity to present a case for truth.
Wallin has had every opportunity to "present a case for truth" but hasn't, and it's likely impossible to determine since the accusations were brought forward after a very long time. You should also know that Wallin has been harassing public servants because the authorities put down a dog that belonged to a friend of hers.
Here's a better source about the defamation case: https://www.nj.se/nyheter/aven-hovratten-foller-wallin-for-f...
I’m not sure why you are bringing up irrelevant facts to make Wallin look bad, so I won’t bother responding to them.
Cases where the truth of the defamatory statements cannot be determined are out of scope. However, such harm would reasonably be covered by the same line of argument.
In some situations swedish courts have to consider the truth of the statements in defamation cases. The regulation is much more sophisticated and detailed than you seem to think.
The ECHR is great and I believe that both these cases, if the people convicted had sued Sweden in the ECHR, then Sweden would have lost.
However, Swedish law is still Swedish law. Parliament is sovereign and can what it likes, legal as illegal. It'd be great to have an ECHR judgement against Sweden in one of these cases, it would have given weight to the need to change these laws into something with respect for truth, giving us a chance to throw away the tradition of the courts to regard reputation as something belonging to a person, when reputation is other people's beliefs. There should only be protection against reputational harm from falsehoods.
ECHR is applied in swedish courts, it's swedish law and constitutionally limits every other regular law.
If a tree falls and no one hears it, does it make a sound? I can only know about my reputation from the voluntary acts of other people. These actions may be more or less conscious, just like the choice to buy from a store or to vote for a candidate, but they are not "a passive consequence of learning the relevant information".
If I set a fire and you die from lung cancer caused by the smoke, I hurt you, even if neither of us knows it.
The act of tearing someone down purposefully, either with facts or non-truths, is almost always an act of revenge. Someone felt wronged by someone's current or previous actions, and they move to "take revenge." This paper essentially argues that no one is entitled to revenge.
Seems like the harm caused to a person through true defamation is outweighed by the benefit to society of holding people to account for bad behavior.
E.g., concerning Tilley: "Yet he was indisputably defamed by it". Yes, his reputation was harmed, so arguably he was defamed by 17thC standards; but "indisputably" is simply wrong on the present definition of "defame". If he was indeed a bad manager, then having that information in the public domain seems to be a social good; bad managers harm all of us, and this guy was trading on his reputation as a good one.
We are being invited to consider a premise (i.e. presume that it is true) and explore the consequences. At any point, we can choose to disagree with this premise, but at least we understand it.
Imagine instead if the author, after inviting us to accept the premise, proceeded to write as if we were to assume the premise were false. It would be much harder to understand what they were proposing or why they even wrote the piece in the first place. At best it would be a maze of obligatory qualifiers and nested hypotheticals.
> as long as we understand the “opinions” involved in people’s reputation to be something formed more or less involuntarily as a consequence of receiving information being circulated about them.
What? Involuntarily? My opinions are certainly not formed involuntarily as a consequence of information. That's not something I can "understand".
One's reputation is not their property. How can my opinion be your property? Step off.
> It is wrong, all else equal, to knowingly damage an aspect of other people—like their face or their farm—in which they have strong interests.
No, it is not. If James Taylor has a strong interest in singing, it is not wrong to say he sings flat. It can be mean to criticize people for things they cannot change, but it's hardly wrong.
2. The piece doesn't say rep is property, just like property in 2 ways (no others).
3. Not wrong to damage stuff you have a strong interest in, only stuff that's also an "aspect of yourself," how the paper defines this. Doesn't apply to Taylor case.
Agree, too long and wordy. But still worth getting right what it says before hating on/disagreeing because of what it doesn't.
Let's assume that if beforehand one agreed wholeheartedly with Helmreich's position—which I'd suggest would be unlikely—then I'd posit this paper would further nuance their views. This is an excellent and authoritative paper, and I have learned much about a subject of which I thought I already had reasonable knowledge.
I don't have the knowledge or scholarship to go point by point verifying or refuting the actual article, and it does bring up up a lot of interesting points.
But I beg you not to be suckered by academic phrasing, calls to the past or the mere length of the article. How we treat defamation should be based on what has the best outcomes for society today, and you should be able to come to you own conclusions about what a world where "true defamation" is prohibited would look like.