Beware the libel

From guest blogger lawiscool.com

Simon Singh, a British journalist and a popularizer of science, is fighting a lawsuit. In his article for the Guardian, Singh wrote that the British Chiropractic Association (BCA) promoted bogus treatments. The BCA sued him for libel. Is it right that our words can cost us dearly? What about the freedom of speech? First of all, let’s find out what the freedom of speech really is all about. Then, let’s see why we have libel laws and what we can learn from the Singh case. The Internet gives everyone a potential audience, so watch what you say if you have libel laws in your country.

The Western culture loves the freedom of expression. In Canada, the Charter of Rights and Freedoms calls it a “fundamental” freedom that “everyone” has. In the US, the First Amendment prohibits Congress from “abridging the freedom of speech.” We value our right to speak freely, and we believe it is essential for democracy. It’s not surprising then that libel suits ruffle a few feathers. But constitutional laws like the Charter and the Bill of Rights protect our speech from the government, not from our neighbours.

We do not necessarily have a right to injure other people’s reputation with speech. And when we do libel someone, the government’s role is limited. It merely enforces courts’ judgments in suits private individuals bring against us. It’s different when the government prohibits speech. That prohibition is what the Charter, the Bill of Rights, and other Western constitutions protect us from. Libelious speech is not necessarily illegal, just like it’s not illegal to forget to clean ice from your sidewalk and have someone slip and break their leg. But if the injured person sues you, the courts can make you pay compensation.

Libel laws protect people from unjustified harm to their reputation. They are not about letting the government prohibit speech, so our constitutional freedoms are not at stake. But who said litigious citizens are less scary than an authoritarian government? Perhaps speech is such a basic right that no one should be able to stop it. Can libel be benefitial or at least not harmful enough to justify protection from it? It depends on the defition of libel.

The Singh case offers a seemingly common definition: false speech that injures reputation. To sue Singh, the BCA had to show that his words brought the BCA into disrepute. A preliminary court ruling suggests this burden is light: all you need to show is that someone accused you of something dishonourable. The ruling also suggests that Singh has to prove the truth of his statements if he wants to avoid paying compensation. Another defence is fair comment, but it’s not allowed if the defendant’s statements were factual. The court found Singh’s words about “bogus treatments” were not a fair comment but an allegation of fact. So libel is false speech that claims to tell facts and that damages someone’s reputation.

The turning point in the Singh case is whether his words are true. He said “there is not a jot of evidence” to the BCA’s claims that its members’ treatments work. The judge held that if Singh were telling the truth, BCA’s conduct would be “irresponsible.” This suggestion of irresponsible conduct made Singh’s words “defamatory.” Singh’s other words hardened the blow to the BCA’s reputation, but apparently, according to this particular judge, saying there is no evidence for someone’s claims is sufficient for a defamation suit.

Imagine two bloggers: Monica and John. If Monica writes in her blog that she can treat neck pain with massage, and if John writes in his blog that there is no evidence for Monica’s claims, she can sue John for libel and she doesn’t have to prove that John is wrong. The burden of proof is on him. At least, that’s what the judge’s decision seems to imply.

It seems pretty harsh. But saying that there is no evidence for Monica’s claim is the same as saying she is lying. When that’s all John says, he is being pretty harsh on Monica himself. His words imply it’s obvious there is no evidence. They imply that Monica knows it and that she is a lier. In that case, shouldn’t John have to prove that there is really no evidence? But proving a negative is impossible. Then, perhaps, it would be fair to Monica, if John avoided such general unsupported allegations. What if John said that he personally couldn’t find anyone whom Monica helped with massage. Wouldn’t this way of putting it be fairer to both Monica and John’s audience? Of course, John’s writing wouldn’t be as punchy anymore, but the public can probably live with that.

That’s why what the judge said is not as outrageous as it seems. Falsely accusing someone of lying is defamation. And no one should bear the burden of defending against every allegation out there. Unless the accuser can prove his words, he should be liable. Defamation laws can stifle debate, but general, unsupported accusations in mass media can stifle debate even more. There is a reason for the age-old common law of defamation, and the Internet is not making it go away. Reputations are precious. They are hard to earn and easy to lose. The Internet can spread demeaning messages to millions. It’s only natural that the law continues to protect reputations from careless or malicious false speech. And the lesson is neither to keep our mouths shut nor to choose messages. The lesson is to choose our words wisely.

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