13th February 2018
Defamation law has no place in a free society
I wrote this on my FB profile page a few days ago.
Defamation law puts a huge brake on free speech and stops reputational feedback in its tracks. It doesn’t matter if you are right, you will still face a huge legal bill to defend your comments. This is a credible off-equilibrium threat.
Can anyone explain to me why the government should spend precious public resources to defend people’s private reputations? Let people use the widely available and cheap internet communication – such as blogs and ability to respond to adverse comments – to defend their reputations. Defamation law must be scrapped.
Let me put out a more systematic argument here.
Defamation law has been part of the common law tradition for many centuries but the more I see its operation, the less it persuades – and modern technology obviates many of the justifications for such a law.
The following are the main arguments against defamation law:
1. The law is paternalistic. People are not stupid
Everyman is a reasonable judge. People take a sensible approach and don’t jump to extreme conclusions. They conduct their own inquiries and balance various characteristics. Even a Trump can become President. I quote Chris Berg’s write-up, below:
Like hate speech regulations, defamation laws pivot upon an interpretation of the gullibility and helplessness of the population which assumes that Australians are capricious and quick to judge, and stubbornly hold onto false information. But as the legal scholar Roy Baker found, there is a vast gap between the ‘ordinary reasonable person’ test applied in defamation law and actual ordinary reasonable people. Lawyers and judges have concocted the idea of the ordinary reasonable person in order to hypothesise how potentially defamatory speech might be received in the community. Baker cleverly decided to test this notion by asking both lawyers and members of the general public whether they would think less of someone if they were accused of a number of moral violations (like drunkenness, sex before marriage, and being a police informant). Baker found that the legal ordinary reasonable person ‘emerges as a censorious person: quick to condemn, slow to question, open to insinuation, closed to reason’. The general public, by contrast, ‘could be rather more tolerant and accepting than many of us think’. This finding no doubt applies to hate speech litigation as well: the law thinks we are more judgemental and less sceptical than we really are.
Just as significant is the fact that defamation laws are tools of the wealthy. Such legal action is very expensive — lawyers aren’t cheap. The irony is that almost everybody who can afford to sue for defamation has the resources to correct false information about themselves. And, of course, defamation can also suppress debate about important matters of public interest. Even the threat of it is enough to have a so-called ‘chilling effect’ on free speech.
2. The law is elitist and puts the onus on the defendant
Defamation law arose from the aristocracy who obviously preferred to muzzle the public. And since they controlled the laws, so this law was made for their personal convenience. The law is inequitous (protects the rich) and fails the basic test of reasonability. Defamation law is intended to only protect people with commercially valuable reputations. This is the very group of people best able to defend their own reputation since they have the power and voice to do so. I quote from the Ontario Civil Liberties Association, below:
The common law of defamation has survived from criminal statutes of a past era that were designed to protect nobility from criticism.
It is the only common law tort (or cause of action) where damages—actual damage to reputation—and malice (malice of defamation) are assumed, and need not be proven in court. The result is a presumption of guilt—regarding falsity of the expression, malice of the defendant, and damages to the plaintiff—that can only be overturned if the defendant can prove one of the available defences, which are strictly limited and codified.
Defamation law is structured such that if a complained of criticism, comment, or opinion is ruled by the court to have the tendency to reduce the social reputation of the plaintiff, in the mind of a fictitious “reasonable person”, then damage to reputation is assumed and a financial award for damages is due, even in a total absence of evidence of actual damage to reputation (such as: lost fans of an artist, lost clients of a service provider, lost social connections, loss of employment, fewer invitations to social or business functions, etc.). The criticism complained of is all that is needed to obtain damages. Guilt is automatic, and the only possible defences are strictly limited and codified, carrying the names of “truth”, “privilege”, “fair comment”, and “responsible reporting”. The presumed-guilty party has the onus to prove an allowed defence.
3. The internet obviates the need for government protection of reputation
There was a time not very long ago when information was controlled by newspapers. You could not communicate relevant information to others without getting it first published in the newspapers. You may have to write a letter to the editor, for instance. You were dependent on the curation and whimsical biases of the editors – the gatekeepers.
But over the past 10 years, particularly with the growth of personal blogging, Twitter and Facebook, people have a wide range of opportunities to refute or rebut any negative and false comments they feel are harming their reputation. Today, anyone with commercially valuable reputation can defend themselves at a low cost, e.g.:
a) famous persons have hundreds of thousands of followers on Twitter and on Facebook and may have greater access to the community than the media itself has. For instance, if someone defames Donald Trump, all he has to do is to tweet a contradiction
b) internet advertising is the equivalent of dropping leaflets by air. Anyone who feels defamed can publish a blog post/ Tweet contradicting the defamatory comment and if the media doesn’t publish it, advertise it widely on the internet. If somebody’s reputation is worth $100,000, he or she can defend it with a mere $100.
This allows every citizen to judge the truth, instead of depending on an intermediary judge or jury.
Therefore there is no more need for the government to spend precious judicial resources in defending the reputations of people. They can do it themselves.
Reputation is a form of private property, but in the modern world it is much easier to protect and defend that property then it was in the past. People must take charge of their own private property and defend it from destruction. They could, if they wish, insure their reputations.
In fact, contrary to the damage to an individual, it is the liar – the one who puts out false information – who ends up losing in the modern era by developing a reputation as a liar, and therefore faces severe long-time consequences of making false claims. Today, the risk of being caught as a liar or a bad character is much higher than it was in the past, because the probability of being caught is significantly higher. This is being driven by a range of technological advances, with thieves being caught quite easily because of IT security systems, cameras, traces left on mobile phone and cellular calls, etc.
It is now not a good time to be a person of bad character. Today, the good have nothing to fear. The bad have everything to fear.
Therefore there is simply no reason for government to get involved.
4. Severely perverse economic consequences
Defamation law has extremely perverse consequences with wealthy practitioners threatening defamation to muzzle honest opinion about their performance. Thereby, the performance of bad builders and bad doctors, among many other practitioners, does not reach the public who assume that licensing by government assures their conduct. This is a fatal assumption to make in at least a few cases.
Even though the law protects honest opinion, the very idea of contesting a defamation case creates a financial and time burden, thereby preventing the honest opinion from being brought out into the public domain. This dampens the reputational mechanism, allowing the bad practitioners (e.g. bad builders, bad doctors) to continue to impose great harm on society.
I would estimate a cost of at least $10 billion per year to society from people hiring bad practitioners. In addition it imposes a huge burden on the very concept of free speech.
In the case of countries like India, defamation law prevents public knowledge of the names of corrupt officials (90 per cent of them are corrupt) and corrupt politicians (98 per cent of them are personally corrupt and almost all condone corruption by others). The cost imposed by such a law on developing countries can easily creep to around 4 to 5 per cent of GDP.
The time for defamation law has passed. This system is now archaic and irrelevant.
Defamation law must be tossed into the dustbin of history.
My blog post: Reputation is not private property
Defamation law must be abolished
The biggest threat to free speech isn’t 18C. It’s this – Michael Bachelard
Surely defamation is the real threat to free speech – Jonathan Green
Scrap Defamation Bill (an archival Indian debate – this doesn’t call for scrapping defamation per se).
Scrap defamation law, the case against defamation law, abolish defamation law, the evil of defamation law, defamation menace, defamation law harms society