Thursday, July 29, 2010

I can has whacking great libel judgment?

I shall not cease from mental fight Nor shall my O hai! The British media system is a thing of beauty sometimes, innit?  There's an actual diversity of opinion among the print press! A public broadcasting sector that doesn't spend two weeks begging for money every six months!* Heds that call the prime minister a "dickhead"! A complicated system of noun formation that yields 108 words for "nude pic row vicar"! And a widespread tendency in some outlets to, um, just make stuff up -- particularly when it comes to smearing people and groups you don't like: politically, socially or culturally.

British libel law** is stacked toward the plaintiff in ways that can do real damage to the robust discussion of public issues. Less chillingly, it also has a habit of extracting the sort of admission that the Sun ran today (continuing from the screenshot above):

We now accept that these allegations are totally untrue. Mr Subramanyam, whose sole aim has always been to promote the Tamil cause, did not eat any food at all during his hunger strike.

We apologise to Mr Subramanyam and his family for any upset and embarrassment caused and are paying him a substantial sum in damages.

In other words, the Sun (and the Mail, which also ran the burger story) made it up and got caught, and now they have to admit that they lied like cheap rugs.

That might seem like just another of those quaint British traditions, like the TR3 and genuinely good beer, that are interesting on paper but irrelevant to daily life in These United States.*** Consider, though, how many fabrications from the right-wing British press find their way into the news on our side of the pond: Muslims gum up NHS by making nurses turn beds toward Mecca five times a day! Qaida prepares breast-bombers for attack! Obama thinks we can beat the terrorists by watching "Star Wars"! When those start to work their way onto the national agenda, you might want to consider the source.

* And giveth us Monty Python and Dr. Who in its spare time amen.
** We started diverging from the mother country's libel laws while we were still a colony; Zenger was settled in 1735. Raise a glass next Thursday to the principle that truth is a complete defense!

*** Unless you're following the flap over the NYPost's bogus con liver outrage story. Heh.

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Blogger John Cowan said...

The Zenger case was just plain old jury nullification. No, it was 1964's Times v. Sullivan and its successors that broke with British libel law permanently.

In their libel law, and ours before 1964, the falsity of a statement is presumed and need not be proved by the plaintiff; instead, it is up to the defendant to prove it to the court's satisfaction. The Supremes established that if the plaintiff is a public official (later extended to any public figure), he must prove "Times malice", which is either intentional lying or reckless disregard for the truth. Even private plaintiffs must show at least negligence: purely accidental falsehoods are no longer libelous.

5:27 PM, July 29, 2010  
Anonymous Ed Latham said...

I'm in a minority over here for being almost pleased, or at least not surprised, that UK libel law is so strict. I think what helps in the US in the uniform respectability of the mainsteam press: the New York Times has no truck with the National Enquirer, whereas over here the Times and the Guardian regard themselves as being somewhere on the same journalistic spectrum as the Sun and the News of the World. So it's the broadsheets that go running to court to defend the public interest principle of stings, eavesdroppings, leaks and deceptions every time the tabs commit some new outrage, and often end up just carrying the popular press's bags for them.

And, driving the two libel systems even further apart, it's farewell to the Reynolds defence:

6:14 PM, July 29, 2010  
Blogger fev said...

I don't think everything about the English system is bad -- as I understand it, it offers a lot more ways to step down short of a full-scale confrontation, and there's more chance for redress for a plaintiff like David Rouch, who might not have deserved a million Gannett dollars but ought to have gotten more than a sympathetic mention in textbooks.

And, if the Voice's account of the NYP killer liver story is correct, Mr Murdoch would get a much more thorough kicking under your system than under ours. Under Michigan law, at least, there wouldn't be a claim for libel at all there.

John, I'd agree that the Zenger case didn't have the direct impact of Sullivan, but by the early 19th century or so -- ahead of England by a couple of decades, iirc -- US libel law started to formally recognize the defense of truth raised in Zenger.

I think you're misreading the presumption of falsity. Damages were certainly presumed from the fact of libel for some time (and probably still are by many juries), but even Sullivan had to show that there were falsehoods in the "Heed their Rising Voices" ad. They were pretty preposterous, and (again, iirc) a good bit of testimony suggested that Sullivan's reputation wasn't a whit damaged.

Sullivan wasn't really about journalism in the first place, except as a way for the Alabama power structure of 1960 to cut the supply lines of the interfering northern press. I think it's especially cool that we got such broad protection to discuss the public conduct of public officials from such a series of accidents.

The capcha for this reply is "steditio," which I consider a positively eerie coincidence.

12:38 AM, July 30, 2010  
Anonymous Ed Latham said...

That's true, I always forget about the Post - an uncannily British tabloid trapped in the wrong news ecosystem.

6:42 AM, July 31, 2010  
Anonymous Ed Latham said...

That's true, I always forget about the Post - an uncannily British tabloid trapped in the wrong news ecosystem.

6:43 AM, July 31, 2010  
Blogger John Cowan said...

In Sullivan, Justice Brennan's opinion refers to the state of Alabama law at the time: "Once 'libel per se' [the defamatory nature of the words as printed, without regard to background knowledge] has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars." In short: truth is an affirmative defense that must be raised and proved by the defendant. This was true of pre-Sullivan U.S. law generally, and is still true of non-U.S. defamation law.

It's not that the presumption of falsity is a ridiculous idea. Suppose Alice says Bob is a rapist. How is Bob to prove he is not? — put every woman in the world on the stand to have each one testify that he didn't rape her? It's much simpler to require Alice to prove that the statement is true by proving that Bob actually did rape some specific woman on some occasion.

No, the problem with the presumption is its chilling effect on reporting and its warming effect on abuse. If you can only report what you are prepared to prove in court, if "lawyer-approved" is a more essential element of newspaper workflow than "copy-edited", it becomes necessary to avoid publishing anything but the most obvious facts. It is much better strategy to publish opinions, since in non-U.S. jurisdiction opinion is another affirmative defense, but much easier to establish than truth. So it becomes much safer for Alice to call Bob a shithole than a rapist.

12:02 PM, August 02, 2010  

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