Like Brad Delong's site, but with more liberal use of the F-word and less about the New York Times.
Tuesday, February 08, 2011
Libel reform quiz!
"Truth is an absolute defence". But is it? No. Can readers construct a plausible example of a case in which you could libel someone by only saying true things about him? Answer to come in comments.
Well, that quiz didn't last very long! Yep, the defence is "justification", not "truth", and spent convictions are the most important member of the small class of true statements about someone that are not justified.
Can't grotesque insinuations also be libellous (because damaging to reputation), even if every factual claim that's made is in fact strictly true?
If I circulate a leaflet saying that you're spotted everyday heading towards a brothel, I'm implying something about you, but it may be the case that you're the postman doing your job.
"Seen entering a brothel" - reading the gas meter "makes regular deliveries to a noted drug dealer" - the postman "is well known by the local police" - is a local policeman
Can't grotesque insinuations also be libellous (because damaging to reputation), even if every factual claim that's made is in fact strictly true?
Yes, although the intent here is to deceive and so the question of whether "he is seen every day heading to a brothel" is "true" or not is one for the philosophers. With respect to spent convictions though your statement can be clear, unambiguous and true ("Reverend Wright has a conviction for stealing apples when he was sixteen" will still qualify, not just "Reverend Wright is a thief") and still libellous, as long as you did it maliciously.
And yet job application forms routinely say things like 'do you have any convictions or cautions, whether spent or not?' (cautions are spent immediately anyway, unless - I think - caught up in the unspent period of an actual conviction.)
Which means not only is 'don't ask' out the window, but so is 'don't tell' the applicable principle presumably being 'lie on your application form'.
(Also, I am doubtful that criminal records checks observe the proper limits under the Rehab of Offs Act, though I don't have any evidence(!). I'm not even sure who gets access to crim records: presumably there's some bit in application forms where you give them permission. I wonder whether the wording tends to get (i.e. force) 'permission' to view spent convictions? Obviously any attempt to clarify or qualify such matters would be self-defeating since it draws attention.)
Re insinuations - yeah, presumably in cases where defamation is found, it would be on the basis that insinuation is just another way of making a statement. (Though the primary test is probably what some hypothetical or imagined person would be likely to think. Complicated by malicious intent requirements though.)
And yet job application forms routinely say things like 'do you have any convictions or cautions, whether spent or not?'
Presumably only for jobs which fall under the CRB check radar? I'm fairly sure that any 'normal' employer asking that question would be completely breaking the law.
the applicable principle presumably being 'lie on your application form'.
One of the rare cases where you are allowed to lie on your application form; you are specifically allowed to deny having any convictions if all you have are spent convictions.
If you are being asked an "exempt question" (and unless you want a job working with in the health service, with children, in financial services, or at football matches, you probably aren't), then you need to be specifically told that this is the case, otherwise you can lie, and if your employer discriminates against you for lying, they are in breach of the ROA.
Similarly, CRB checks will not grass you up unless you are applying for an exempted profession.
The only one I remember was a bog-standard job working for a city council (nothing to do with kids or finance) but I'm pretty sure I've seen it elsewhere. 'Routinely' was perhaps a stretch if interpreted as meaning 'widely', though it was clearly routine for the council concerned since it was part of a printed form.
And while that FAQ thing says it's 'illegal' to ask, I can't find any basis for that in the 1974 Act as amended.
Libel is actually nothing to do with "statements" per se, true or not. Libel is about damage to reputation. That's the reason why the defence is "justification" rather than truth: you are OK if the damage you do to the plaintiff's reputation is justified.
So simply saying that there is no truth to the rumour that Fred Bloggs stuffs live gerbils up his arse is quite likely libellous, even if is a true statement, because by mentioning the possibility you are damaging Bloggs' reputation.
This, however, raises the interesting issue then of who determines the standing of a person's reputation?
If I tell the world that GWB frequently flies in underage male prostitutes from Cambodia then has his way with them, can I (in all honesty) claim as my defense that the world already thinks so little of GWB that this is doing precious little to harm his reputation?
Yes you can! If you have a decent lawyer and your claim about the person's reputation is broadly true then you could even win. (NB if you are trying this in a live application then remember that reputations are dependent on context so you could get away with saying it about Gary Glitter, but probably not about George Bush)
This sort of thing is why newspapers, when they have won a libel case, often run follow-up stories piling on all the additional dirt that they had but couldn't stand up - they know that they are in no danger of being sued now as the subject has no relevant reputation to defend.
AMcG, re: 'statements' - perhaps that's not quite the right word, but even though libel could perhaps be found on the basis of an insinuation or indeed a faked (untrue?) photo etc, it is still about some kind of assertion, representation, communication.
I mean I could ruin someone's reputation by tricking them or drugging them so that they do something dodgy in public but that wouldn't be libelous. Passing on a sealed message containing a defamatory assertion also not libel.
On the other hand I suppose mass hypnosis to implant false beliefs about Mr Bloggs indulging in Certain Activities might just conceivably be regarded as a method of libelling someone, but it's only arguably non-communicative/non-persuasive.
The somewhat comic legal test of defamation is whether it would lower the person "in the estimation of right thinking people", i.e. a reference to common sense and implicitly to the prevailing social mores. This is, I guess, why it is important to have juries in libel trials, such that what constitutes damage to a reputation is not unilaterally determined by some crusty old pillock in a wig.
AB: somewhat comic, but as you say really the only way to go.
I seem to remember Terry Pratchett inventing the concept of "whitemail", in which you undermine the reputation of a gangster by revealing that he is actually very nice and wouldn't hurt anyone.
Q: if you did this to, say, a rap artist, he might suffer significant loss of earnings; would you then be liable? Why?
Per the case of Jason Donovan vs some newspaper or other, you would be implicitly accusing him of dishonesty (this was how Donovan managed to sue the paper for printing a rumour he was gay, without having to alienate half his fans by having a lawyer argue on his behalf that being accused of gayness was per se shameful)
The question then arises that if some Fifty Cent figure was going around claiming to have popped a cap in some punk's ass, back in the day, would you have a defence of justification if you pointed out that the conviction in question was long since spent?
It could be defended as fair comment. The statement "I am a violent thug" is a matter of opinion, as much as "I am an extremely good rap artist". And so disagreeing with either of those (as long as it didn't involve factual misstatements) would be permissible.
Jason Donovan also suffered pretty heavily for said libel action (basically stylists/fashionistas treated him as persona non grata for a long time after).
A current example of plans to damage reputation which even if execited successfully would not be libellous because not involving an assertion of the discrediting facts.
For the record, I am willing to contribute considerably to the defence costs of 50 Cent vs DD at the High Court in return for a guaranteed seat in the public gallery to watch the plaintiff arguing strenuously that he was a twat and calling in his homies as witnesses to his bad character, with the defendant countering by producing grainy surreptitiously-shot video footage of 50 Cent helping old ladies across the road and wheeling in his probation officer to swear blind the lad had gone straight.
Competition time! Complete this rap with rhyming and scanning lines in the same style! (Some might object that "I am an extremely good rap artist" already fails to scan; finding an appropriate metre can be considered the first part of the challenge.)
A defamatory statement that refers to a spent conviction?
ReplyDeleteWell, that quiz didn't last very long! Yep, the defence is "justification", not "truth", and spent convictions are the most important member of the small class of true statements about someone that are not justified.
ReplyDeleteCan't grotesque insinuations also be libellous (because damaging to reputation), even if every factual claim that's made is in fact strictly true?
ReplyDeleteIf I circulate a leaflet saying that you're spotted everyday heading towards a brothel, I'm implying something about you, but it may be the case that you're the postman doing your job.
"Seen entering a brothel" - reading the gas meter
ReplyDelete"makes regular deliveries to a noted drug dealer" - the postman
"is well known by the local police" - is a local policeman
Can't grotesque insinuations also be libellous (because damaging to reputation), even if every factual claim that's made is in fact strictly true?
ReplyDeleteYes, although the intent here is to deceive and so the question of whether "he is seen every day heading to a brothel" is "true" or not is one for the philosophers. With respect to spent convictions though your statement can be clear, unambiguous and true ("Reverend Wright has a conviction for stealing apples when he was sixteen" will still qualify, not just "Reverend Wright is a thief") and still libellous, as long as you did it maliciously.
And yet job application forms routinely say things like 'do you have any convictions or cautions, whether spent or not?' (cautions are spent immediately anyway, unless - I think - caught up in the unspent period of an actual conviction.)
ReplyDeleteWhich means not only is 'don't ask' out the window, but so is 'don't tell' the applicable principle presumably being 'lie on your application form'.
(Also, I am doubtful that criminal records checks observe the proper limits under the Rehab of Offs Act, though I don't have any evidence(!). I'm not even sure who gets access to crim records: presumably there's some bit in application forms where you give them permission. I wonder whether the wording tends to get (i.e. force) 'permission' to view spent convictions? Obviously any attempt to clarify or qualify such matters would be self-defeating since it draws attention.)
Re insinuations - yeah, presumably in cases where defamation is found, it would be on the basis that insinuation is just another way of making a statement. (Though the primary test is probably what some hypothetical or imagined person would be likely to think. Complicated by malicious intent requirements though.)
And yet job application forms routinely say things like 'do you have any convictions or cautions, whether spent or not?'
ReplyDeletePresumably only for jobs which fall under the CRB check radar? I'm fairly sure that any 'normal' employer asking that question would be completely breaking the law.
the applicable principle presumably being 'lie on your application form'.
ReplyDeleteOne of the rare cases where you are allowed to lie on your application form; you are specifically allowed to deny having any convictions if all you have are spent convictions.
If you are being asked an "exempt question" (and unless you want a job working with in the health service, with children, in financial services, or at football matches, you probably aren't), then you need to be specifically told that this is the case, otherwise you can lie, and if your employer discriminates against you for lying, they are in breach of the ROA.
Similarly, CRB checks will not grass you up unless you are applying for an exempted profession.
details?
The only one I remember was a bog-standard job working for a city council (nothing to do with kids or finance) but I'm pretty sure I've seen it elsewhere. 'Routinely' was perhaps a stretch if interpreted as meaning 'widely', though it was clearly routine for the council concerned since it was part of a printed form.
ReplyDeleteAnd while that FAQ thing says it's 'illegal' to ask, I can't find any basis for that in the 1974 Act as amended.
Libel is actually nothing to do with "statements" per se, true or not. Libel is about damage to reputation. That's the reason why the defence is "justification" rather than truth: you are OK if the damage you do to the plaintiff's reputation is justified.
ReplyDeleteSo simply saying that there is no truth to the rumour that Fred Bloggs stuffs live gerbils up his arse is quite likely libellous, even if is a true statement, because by mentioning the possibility you are damaging Bloggs' reputation.
"Libel is about damage to reputation."
ReplyDeleteThis, however, raises the interesting issue then of who determines the standing of a person's reputation?
If I tell the world that GWB frequently flies in underage male prostitutes from Cambodia then has his way with them, can I (in all honesty) claim as my defense that the world already thinks so little of GWB that this is doing precious little to harm his reputation?
Yes you can! If you have a decent lawyer and your claim about the person's reputation is broadly true then you could even win. (NB if you are trying this in a live application then remember that reputations are dependent on context so you could get away with saying it about Gary Glitter, but probably not about George Bush)
ReplyDeleteThis sort of thing is why newspapers, when they have won a libel case, often run follow-up stories piling on all the additional dirt that they had but couldn't stand up - they know that they are in no danger of being sued now as the subject has no relevant reputation to defend.
AMcG, re: 'statements' - perhaps that's not quite the right word, but even though libel could perhaps be found on the basis of an insinuation or indeed a faked (untrue?) photo etc, it is still about some kind of assertion, representation, communication.
ReplyDeleteI mean I could ruin someone's reputation by tricking them or drugging them so that they do something dodgy in public but that wouldn't be libelous. Passing on a sealed message containing a defamatory assertion also not libel.
On the other hand I suppose mass hypnosis to implant false beliefs about Mr Bloggs indulging in Certain Activities might just conceivably be regarded as a method of libelling someone, but it's only arguably non-communicative/non-persuasive.
The somewhat comic legal test of defamation is whether it would lower the person "in the estimation of right thinking people", i.e. a reference to common sense and implicitly to the prevailing social mores. This is, I guess, why it is important to have juries in libel trials, such that what constitutes damage to a reputation is not unilaterally determined by some crusty old pillock in a wig.
ReplyDeleteOtherwise defendants will be losing their houses for alleging that plaintiffs once wore a polyester tie to the Reform Club, or what have you.
ReplyDeleteAB: somewhat comic, but as you say really the only way to go.
ReplyDeleteI seem to remember Terry Pratchett inventing the concept of "whitemail", in which you undermine the reputation of a gangster by revealing that he is actually very nice and wouldn't hurt anyone.
Q: if you did this to, say, a rap artist, he might suffer significant loss of earnings; would you then be liable? Why?
Per the case of Jason Donovan vs some newspaper or other, you would be implicitly accusing him of dishonesty (this was how Donovan managed to sue the paper for printing a rumour he was gay, without having to alienate half his fans by having a lawyer argue on his behalf that being accused of gayness was per se shameful)
ReplyDeleteThe question then arises that if some Fifty Cent figure was going around claiming to have popped a cap in some punk's ass, back in the day, would you have a defence of justification if you pointed out that the conviction in question was long since spent?
ReplyDeletejason donovan sued the face, not a newspaper.
ReplyDeleteIt could be defended as fair comment. The statement "I am a violent thug" is a matter of opinion, as much as "I am an extremely good rap artist". And so disagreeing with either of those (as long as it didn't involve factual misstatements) would be permissible.
ReplyDeleteJason Donovan also suffered pretty heavily for said libel action (basically stylists/fashionistas treated him as persona non grata for a long time after).
ReplyDeleteA current example of plans to damage reputation which even if execited successfully would not be libellous because not involving an assertion of the discrediting facts.
ReplyDeleteWikipedia to the rescue:
ReplyDeletehttp://en.wikipedia.org/wiki/Defamation#Truth
For the record, I am willing to contribute considerably to the defence costs of 50 Cent vs DD at the High Court in return for a guaranteed seat in the public gallery to watch the plaintiff arguing strenuously that he was a twat and calling in his homies as witnesses to his bad character, with the defendant countering by producing grainy surreptitiously-shot video footage of 50 Cent helping old ladies across the road and wheeling in his probation officer to swear blind the lad had gone straight.
ReplyDeleteWell, people are doing this with some reasons and trying to be perfect enough of their own.
ReplyDeleteWe must go with positive side which is the truth.
ReplyDeleteI like the idea of a trial in which the prosecution brings witnesses to the defendant's good character.
ReplyDeletehttp://mediamatters.org/blog/201102130002
ReplyDeleteas much as "I am an extremely good rap artist"
ReplyDeleteCompetition time! Complete this rap with rhyming and scanning lines in the same style! (Some might object that "I am an extremely good rap artist" already fails to scan; finding an appropriate metre can be considered the first part of the challenge.)
"...well-informed critics say I am the smartest"
ReplyDeleteIsn't it anything at all, as long as the libel suit is filed in a UK court?
ReplyDelete