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Old 03-21-2015, 10:01 PM   #1
Talon87
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US vs. UK positions on libel

Opted not to make a debate thread about libel. Feel free to if you like. I just want to share this article I found.

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As an American on an American-dominated Internet, it's easy to forget that freedom of speech is a ... if not uniquely American principle, then at the very least not a universal principle. But the NPR article "On Libel And The Law, U.S. And U.K. Go Separate Ways" offers a lay-friendly, relatively brief look at the differences between US and UK law when it comes to printing unkind claims or portrayals of someone's character. The gist of the difference between us is this:
  • in the US, the burden of proof of libel rests with the plaintiff ("innocent until proven guilty" for the defendant); the plaintiff must show that the unkind remarks made of him are false
  • in the UK, the burden of proof of not libel rests with the defendant ("guilty until proven innocent"); the defense must prove that the supposedly defamatory remarks made were all in fact statements of truth about the person or people in question
So explaineth the article, anyway. If it's true, then man, the UK version seems like the way worse of the two sides of the coin.

The article also details something I'm not familiar with -- that a plaintiff can bring charges against you in the United Kingdom even if neither one of you are British citizens; and that US courts typically uphold the rulings of their cousin courts in Britain. That seems ... all sorts of wrong. I mean, not if the crime took place on British soil; but, the article makes it sound like the original author is at risk of litigation if someone, even without his/her consent, publishes his/her writings in the UK. Anyway, not a lawyer. Maybe someone who is or who soon will be can explain it to me better.

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Old 03-21-2015, 10:19 PM   #2
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Quote:
Originally Posted by NPR
Afia disagrees with that characterization. Journalists "are writing about the wealthy and the powerful, so those are the people who are going to be the victim to more false claims, and they're the people whose families will have their privacy invaded," she says.
While this is true, the wealthy and powerful also have more tools to fight back with, and - in the case of a loss - the resources to survive. That should not be used as a justification against them.

I think back to the fear in the US of fornication in the US sex due to perceived rape. Technically speaking, the girl has all the de facto power when it comes to the bang. She can, retroactively, call rape if she wants to, and permanently defame the man she did pork. Most courts and people don't believe in male rape, so the reverse isn't true. And, because of this perceived legal power, a culture of misogyny has arisen against women who do in fact claim rape (in legitimate cases). Hence, you get Bill Cosby.

The take home message is that if a power can be abused, there's going to be mass paranoia surrounding that potential. So, while I think Britain's laws are bollocks, I'm not exactly a fan of the US system, either.

It's important to note that in courts, you can't treat hearsay as truth, but from a first-person account they can verify that the hearsay happened. So, if the guy who wrote the Scientology book is a former high-ranking official with access to Scientology big wigs, we should be allow to believe conversations he had with those people actually took place. Scientology accusing him of lying about the whole thing jars with our perception of him as a person (a man who left a highly obsessive church, and the highly obsessive church acting in accordance with our expectations).

I think journalists should get exceptions for this kind of stuff provided they have the proper credentialing. If you as an individual person have been subject to something bad, go to a journalist and have them investigate/confirm the story. Just like police.
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Old 03-22-2015, 04:32 AM   #3
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Yeah UK libel law sucks. There was a case a while back where a guy called Ben Goldacre (doctor and journalist) published a number of articles and a book slamming alternative medicine, nutritionists and the anti-vaccination crowd. A guy who promoted vitamin pills for AIDs sufferers took issue and sued him. Thankfully that went Goldacres way (with the help of the paper he published in, The Guardian.) The idea behind UK libel law is to protect individuals from defamation by news outlets (so for example if the Daily Mail does that thing where it calls someone a child molester the burden of proof is on the paper to prove they are rather than the individual to prove that they're not, so it would kill Fox News) but it's more often used to abuse the other way.

Bringing these cases to British courts will be possible in cases where the material was also published in Britain, but people tend to really push the boundaries there to include "hey Britain has the internet and some of this stuff ended up on there". A shitty practice to be sure, but generally speaking if they can people/companies will choose to fight legal cases in whatever country the law suits them best.
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Old 03-23-2015, 12:51 PM   #4
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Hadn't quite realised how you were interpreting this. All this does is move the line a little so that, say, Fox News can't come along and call the President a terrorist without having something to back that up. Some of you may remember the case of Dominique Strauss-Khan, former head of the IMF accused of sexual assault. Case against him was eventually dropped due to lack of evidence. Long before legal proceedings were bought, UK news outlets were freely reporting on the accusations and didn't face any threat of libel. because they weren't saying he was guilty - all they were saying was that there were accusations, and if asked to prove that you just point at the person making them loudly and in public.

The issue with it arises when individuals or small groups are bullied into issuing retractions because even if they would clearly win the ensuing case, competently fighting it against a large company or whatever would cost a small fortune.

In the UK if you make a claim that someone is guilty of something nasty, libel laws require you to prove that claim - ie it assumes that the libel victim is innocent until proven guilty. In the US it sounds like it's assumed you're guilty of whatever they claimed unless you prove otherwise. The UK position is simply to treat the original libelious statement as the accusation (of whatever it is they've said they've done) and the victim as the accused.
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Old 03-23-2015, 01:41 PM   #5
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Quote:
Originally Posted by Concept View Post
Long before legal proceedings were bought, UK news outlets were freely reporting on the accusations and didn't face any threat of libel. because they weren't saying he was guilty - all they were saying was that there were accusations, and if asked to prove that you just point at the person making them loudly and in public.
This explains why 99.9% of Britons didn't wind up in front of a judge. It doesn't at all explain why your system is better than ours, and it isn't a line moved "a little" to one side either. Someone will still take the fall if this chain is traced back far enough: the police come to your door and you say you heard it from Kush; then they go to Kush's door and he says he heard it from his boss; it goes on and on like this until finally they reach a point where the person can't make up any excuses, has no alibis, etc, and takes the fall for slander. And then we're right back where we started: guilty of slander until proven innocent.

So right back over to this:

Quote:
Originally Posted by Concept View Post
you just point at the person making them loudly and in public.
the climate in the UK, thus, is one where open expression of ideas is stifled; people are afraid to open their big fat mouths for fear that they will one day be the loudest, flashiest gazelle on the Serengeti and attract the attention of the MI5 cheetahs. Since no one wants to be loudest, no one wants to risk being loud. Since no one wants to risk being loud, we can conclude that this is indeed a stifling of freedom of expression. People are literally too scared to speak their minds freely (loudly, in public) for fear of standing out as the obvious scapegoat for a UK slander or libel suit.

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Originally Posted by Concept View Post
In the UK if you make a claim that someone is guilty of something nasty, libel laws require you to prove that claim - ie it assumes that the libel victim is innocent until proven guilty. In the US it sounds like it's assumed you're guilty of whatever they claimed unless you prove otherwise.
This is a pretty obvious 180° twist of the "guilty before proven innocent" / "innocent before proven guilty" duality that I pointed out which placed the UK on the shit end of the spectrum. The problem with your inversion is the obvious: you've neglected the legal roles of the plaintiff and defendant in question. Who you label as the "libel victim" is legally the defamation plaintiff; who you label as the "libel victimizer" is legally the defamation defendant. It isn't the libel victim who's on trial here: it's the libeler. No one's taking the libel victim to court. (Not unless it's about the things he's been "libeled" about in the first place, in which case the court of public opinion very likely holds that it wasn't libel to begin with.) The person on trial here is the person who's made the allegedly false claims. And so my point stands: "guilty before proven innocent" is the British way on this topic, not the American. The idea here is that you're free to rattle off your mouth and say any fool thing you want (within other proscribed limits of the law) without fear of being taken to court over it. It's apparently the dead opposite in the UK for the reasons outlined in the OP post.
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Old 03-23-2015, 02:12 PM   #6
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In the UK if I claimed, for example, FishDave was a child molester I'd have to back that up with something (and even if he was found innocent of it does not automatically make me guilty of libel - that would require my claim to be a deliberate lie). In the US he'd have to prove that he's not, the only way to prove that he's never done so would be to account for every second of his life. To me that about sums up the difference between the two systems nicely, and whilst I freely admit our system has problems - libel cases pretty much will always reach court, so even if one side will blatantly win sometimes they retract it anyway to avoid legal costs - but I prefer it.

Maybe we're weird like this but in the UK if someone makes a claim we generally put the onus on them to back it up, and we just stick to that fundamental level. We don't actually care which side of the courtroom you're sitting on - I honestly can't think of a reason why it could possibly matter - if you're the one making the claim then you're the one with the responsibility to back it up.

Quote:
Originally Posted by Talon87 View Post
Someone will still take the fall if this chain is traced back far enough: the police come to your door and you say you heard it from Kush; then they go to Kush's door and he says he heard it from his boss; it goes on and on like this until finally they reach a point where the person can't make up any excuses, has no alibis, etc, and takes the fall for slander. And then we're right back where we started: guilty of slander until proven innocent.

the climate in the UK, thus, is one where open expression of ideas is stifled; people are afraid to open their big fat mouths for fear that they will one day be the loudest, flashiest gazelle on the Serengeti and attract the attention of the MI5 cheetahs. Since no one wants to be loudest, no one wants to risk being loud. Since no one wants to risk being loud, we can conclude that this is indeed a stifling of freedom of expression. People are literally too scared to speak their minds freely (loudly, in public) for fear of standing out as the obvious scapegoat for a UK slander or libel suit.
Short version no, this does not happen and I'm not really sure where you've suddenly pulled this entirely fictional image of a dystopian Britain from.
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Old 03-23-2015, 02:24 PM   #7
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I'm pretty sure that libel cases don't actually involve proving/disproving the crime accused, which is what you seem to be implying. If you were to do that for example, the obvious line of thought would be "Well did you file a police report or contact the police about it?" "You didn't? Well how do you expect the court to believe that your statement isn't libel if you don't go the police about it?" I'm not even sure such a case would be heard if there was an investigation on Dave (In which case I'm pretty sure the reasoning becomes "He hasn't been found guilty on the matter, so any statement saying he is automatically falls under libel").

That's just my take of it and its probably inaccurate.
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Old 03-23-2015, 02:27 PM   #8
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I know little about US libel law so I was just assuming that Talon was correct;

Quote:
Originally Posted by Talon87 View Post
The plaintiff must show that the unkind remarks made of him are false
Which, if the case, is clearly ridiculous.
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Old 03-23-2015, 02:35 PM   #9
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[my understanding] If you're accusing someone of libel, then yes, you obviously have to prove that the statements they've made about you are untrue. It isn't libel if the statements are valid. And the burden of proof is always on the prosecution (in at least American law if not also in all other forms of law derived from English common law).
  • "In defending Zenger in this landmark case, Hamilton and Smith attempted to establish the precedent that a statement, even if defamatory, is not libelous if it can be proved, thus affirming freedom of the press in America. However, if they succeeded in convincing the jury, they failed in establishing the legal precedent. As late as 1804, the journalist Harry Croswell was prosecuted in a series of trials that led to the famous People v. Croswell. The courts repeatedly rejected the argument that truth was a defense against libel. It was only the next year that the assembly, reacting to this verdict, passed a law that allowed truth as a defense against a charge of libel." - "John Peter Zenger," Wikipedia Did no one read the NPR article I linked in the OP?
  • "Even if a statement is defamatory, there are circumstances in which such statements are permissible in law.

    "In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libellous. Proving adverse public character statements to be true is often the best defense against a prosecution for libel or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm." - "Defamation," Wikipedia
[/my understanding]

I could be wrong. I admit to not being a lawyer or trained as one, etc. But I'm preeeeeeeeeeeeeeeeetty sure that the onus is on the plaintiff (in this case the bringer of the libel suit) to prove his claims. Which in this case would mean that it's on him to prove that the defamatory claims made against him are in fact false.
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Old 03-23-2015, 02:52 PM   #10
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I editted my latest post somewhat without realising you'd already replied, my apologies (didn't refresh the page). Have restored it to initial form and will quote what I'd editted in below;

I think the root of this argument is twofold; one, whether the legal terms of "defendant" and "plaintiff" are more meaningful/important than the labels of "claim-maker" and "claim-denyer" - US says yes, being very careful about the specifics of it's legal system with the onus always being on the plaintiff, Britain says no, citing the general principle of the burden of proof of any claim (whether we're talking libel cases or otherwise) being on the person who made it. Second, the difference between the logical potential outcomes and what actually happens; obviously in the US the average citizen doesn't spend all their time extensively proving in full legal detail that the various portrayals of their character are untrue despite the US system making this theoretically possible. In the UK people don't have their every thought stifled and live in constant fear that the next thing they say could land them with expensive court costs, even if the UK system might make that possible. In both countries the safeguards against this are human decency, rational behavior and the hope that courts would throw out any clearly ridiculous cases.

Also in the case of the UK there is the "critics defence" - essentially it is sufficient to show that the statement was a view that a reasonable person could've held, even if they were motivated by hatred. Effectively it limits libel charges to deliberate, outright lies without having to prove that what you said was objectively true, just that it was not unreasonable that you believed it. I would assume the US has something similar.
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Old 03-23-2015, 02:57 PM   #11
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Fair enough. And thanks for the polite responses. As mentioned before, I find the topic fascinating but am not really rarin' for a proper debate. Too much of a timesink. Wouldn't mind watching others with more interest in law go at it. I guess the tl;dr of my sentiments would be that while both systems obviously have their flaws and while both obviously work for 99.9% of people on a day-to-day basis, I prefer the protections afforded in the American version over those in the British version.

Really, I had just wanted to share the news story that I found interesting. In this country we're so used (as adults) to thinking of American law as being nigh on identical to English law that it's funny sometimes to be reminded of the night-and-day differences between the two, differences which sometimes tied in to the very separation between kingdom and colony.
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Old 03-23-2015, 03:02 PM   #12
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Reminds of whem British people assume legal stuff they've seen in American crime shows applies identically over here. Divided by a common language indeed.
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