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We should be able to counter slurs on our reputations without stifling legitimate debate.
Timothy Garton Ash, director of Free Speech Debate, gives a personal introduction
Privacy and reputation, the subjects of our eighth and ninth draft principles, are often closely linked - but they are not identical. There can be an infringement of your privacy, which is not a slur on your reputation: suppose you just don’t want people to know that you give half your income to help the poor. There can be a slur on your reputation which is not an infringement of you privacy: for example, the claim that as a government minister you suppressed vital intelligence as a government while making the case for your country to go to war.
- Reputation? Honour? Dignity?
- The internet and “libel tourism”
- A model defamation law?
- How can you defend your reputation?
Article 19 of the International Covenant on Civil and Political Rights invokes “respect for the right or reputations of others” as a legitimate limit on free expression. Article 17 prohibits unlawful interference with your “privacy, family, home or correspondence” and unlawful attacks on your “honour and reputation”.
Like privacy, reputation is a hard idea to pin down. Its definition, like that of privacy, has varied from age to age and place to place. Is it your public image, what companies call their brand? Is it – as Article 17 implies – closer to the old idea of honour? But historically, honour was seen as an attribute of only some high-placed members of society, such as the aristocracy. Or should it really be about the intrinsic, inalienable, equal dignity of each and every human being?
Once again, there’s a significant difference between continental Europe and the US. As the legal scholar James Q Whitman argues, the modern French and German tradition starts with the medieval notion of honour (the preserve of the few) and then generalises it, in effect saying, “You are all aristocrats now!” The US tradition says the opposite, “No one is an aristocrat here!” Europe levels up, America levels down. And that’s only to talk about the traditional west. What does “reputation” mean in China, the Arab world, Russia, Indonesia? Tell us here.
The internet age has transformed this issue in two ways. On the one hand, defamation can whizz around the world faster than an infectious disease, and it’s much more difficult to stop it. On the other hand, since the allegedly defamatory statements or images are accessible from more than one country, rich and powerful people can use the defamation law of other countries to stifle criticism, in what has come to be known as “libel tourism”.
In this interconnected world, anyone who writes, draws or publishes anything accessible online now runs the risk of being sued for defamation in another country. (That is one reason we have had to put a warning note on our own Community standards saying, “Since the website is in principle accessible worldwide, you should be aware that you might also be liable to prosecution in other jurisdictions.” Thus, for example, the Russian businessmen Boris Berezovsky and Nikolai Glouchkov sued the American Forbes magazine in the British courts over an article which included allegations of gangsterism and corruption. (Forbes sold nearly 800,000 copies in the US, just 6,000, in print or accessed online in the UK.)
The Saudi businessman Sheikh Khalid bin Mahfouz used Britain’s libel laws to sue the American journalist Rachel Ehrenfeld over the claim in her book, Funding Evil: How Terrorism is Financed and How to Stop It, that he had funnelled money to terrorists. Only 23 copies of the book had been sold, via the internet, to addresses in Britain. In response, the New York State Assembly passed what was dubbed “Rachel’s Law”, formally the Libel Terrorism Protection Act. It declared foreign libel judgments unenforceable in New York State unless the foreign law grants the defendant the equivalent of US first amendment rights. In 2010, President Barack Obama signed into law a federal version, known as the Speech Act.
Defamation law varies widely from country to country. We cannot here produce an encyclopedia of comparative law, but we can ask the question what norms, what basic principles, should underpin laws that will inevitably vary in form and detail. This is what the authoritative commentary by the UN Human Rights Committee (UNHRC) on Article 19 attempts to do. So that defamation laws are not used to stifle freedom of expression, people should never be convicted of defamation, that commentary insists, if the statement was true, or an honest opinion published without malice, and/or if its publication was in the public interest.
As it happens, English defamation law is being reformed as our Free Speech Debate takes place – partly in response to criticism of the kind of libel tourism that prompted “Rachel’s Law” in the US. Following pioneering work by veteran free speech lawyer Anthony Lester, the British government put forward in 2011 a draft defamation bill and invited public comments on it. Like the UNHRC commentary, the bill spells out very clearly some basic underlying principles. A published statement or image cannot be defamatory unless it causes “substantial harm” to the reputation of the individual concerned. Defences against a charge of defamation should include: “responsible publication on matters of public interest”, truth (the statement must be shown to be “substantially true”) and “honest opinion” (an honest statement of opinion on a matter of public interest).
Reflecting the connection between free speech and good government we discuss under Principle 3, the bill also proposes that a special free speech “privilege” secured for the Westminster parliament already in the 1688 Bill of Rights should be extended to any document issued “for the information of the public” by “a legislature or government anywhere in the world”, “an authority anywhere in the world performing governmental functions” and “an international organisation or conference”. Importantly, it introduces a “single publication rule”, so you cannot be sued again and again, for every time something is reproduced anywhere.
What, at this writing, is still quite unclear is how it will deal with a question crucial to the internet age: what is the liability of intermediaries, from internet service providers all the way to sites like this one, which carry user-generated content? We shall follow this debate as it unfolds, not because we think England is uniquely important, but because it raises questions that are vital everywhere.
Law is only half the story. Our draft principle does not say, “we should all be free to sue to counter slurs…” It says, “we should be able to…” – which is a very different thing. In an interview for Free Speech Debate, Max Mosley, who has rather dramatic personal experience of this problem – having been accused of the front page of the News of the World of participating in a “Sick Nazi orgy with 5 hookers” – makes an interesting distinction between damage to reputation and violation of privacy. Violation of privacy, he suggests, cannot be made good by the publication of a correction. As he wryly observes, it would not have helped him if the News of the World had published a front page article the next day pointing out that this had been a private orgy.
Damage to reputation, by contrast, can often be repaired after the event, by a timely, prominent correction or rejoinder. Research by the Alternative Libel Project, commissioned by English PEN and Index on Censorship, has shown that most people who have been defamed wish, above all, to be vindicated: they are looking for an apology and a retraction rather than punitive damages. In 96% of cases where it has been used, mediation has led to a satisfactory outcome for both parties.
Germany, which puts the value of human dignity front and centre of its constitution, imposes on the country’s media a statutory right of reply – published at equal length and with equal prominence – for those who feel their reputation has been traduced. A German member of our team explains more of the detail here and suggests that other countries might take a leaf out of Germany’s book.
But what about the free-for-all, trans-frontier 21st century world of the internet? What do you do if you feel your reputation is being trashed there? Sue? Sue whom? Where? Demand a right to reply? Where? How? The best answers here are going to be at least as much social, journalistic and technical as legal. An outfit called Reputation.com based in Silicon Valley, offers to help you “control” your online reputation “and all the private data that includes”, including that on search engines such as Google. For a fee of course. (There is a free introductory service, which you can try; it didn’t do much for me.) And there’s the problem. As with the recourse to courts or law, so with online reputation management, it will cost you. So the rich will have more effective possibilities than the poor, the strong than the weak.
The line between the genuine, legitimate defence of a reputation and online spin, propaganda and – in the end – outright distortion is also a thin one. Reputation.com further promises “you or your business” to “build a positive online presence, and our expert reputation advisors will work with you to push down or suppress any negative content that shows up high in your search results.” But what if that “negative content” happened to be true?