In terms of libel defense, may countries adopt different laws that they feel is appropriate for their citizens. For example, Canada determines libel in terms of public interest while the United States chooses the approach of “actual malice” on the speaker’s part—in other words, knowing that the slanderous statement used was untrue.
In the United States, many believe that there may be too much protection for the speakers. According to the Universal Declaration of Human Rights, Article 19 states that, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. If this right holds true, each and every individual should be able to express his or her own point of view, regardless of the medium used. However, do anonymity rights fall into this category? In the recent case involving model, Liskula Cohen vs. an online blogger, Google was forced to reveal the email of an anonymous blogger who had written “defamatory” statements against Cohen. These remarks included calling her a “skank” and “whorish” and implying that she was very promiscuous in a blog titled “Skanks in NYC”. According to Article 19, this anonymous blogger should have been able to have her identity hidden, not revealed to Cohen, who was trying to press charges against the author of the blog since individuals have the right to “impart information and ideas through any media”. Why should Google have the right to reveal this person’s identity when that person is simply sharing his or her opinion through the Internet? While Article 19 protects the right of the speaker, Article 12 protected the rights of the individual being attacked. Article 12 proclaims that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Since Liskula Cohen is claiming that the statements and remarks by the anonymous blogger are untrue and harmful to her reputation, she has the right to know the identity of the speaker in order to settle the problem. In terms of this case, Cohen won the settlement due to the fact that she had proof that the statements being said were defamatory and it was “Actual malice” on the part of the speaker.
Another example of how the United States uses “actual malice” would be New York Times v. Sullivan. In March of 1960, L.B. Sullivan sued The New York Times for making defamatory statements per se by publishing an ad that made references to the Montgomery police force’s misconduct. Sullivan believed the statements published by The New York Times to be untrue and directed towards him due to the fact that he was the Commissioner of Public Affairs in Montgomery at the time with duties that included supervising the police force. Sullivan saw this as an attack towards his reputation and his job as Commissioner, so he sued the newspaper and initially was awarded $500,000 in damages. This verdict, however, was later overturned when The New York Times appealed. At the second hearing, the court unanimously decided to overturn the decision, concluding that The New York Times had no intention of “actual malice” and did not know the information to be false. They simply published an ad that they thought had truthful information. In cases like these, other factors that play a part in the final decision would be whether or not the statements made were by professional writers with a deadline to publish.
Though actual malice needs to be proven in public cases such as the one involving Liskula Cohen who is a model and in the public eye, this doesn’t hold true when it comes to private individuals. Gertz v. Welch is a case that involved slander and libel towards a private attorney, calling him names such as “Communist fronter” and a participant in conspiracy against the national police. Elmer Gertz decided to bring civil action to Robert Welch, Inc. for publishing false claims and damaging his reputation as a respectable lawyer. In this case, the rule was established that private persons such as Elmer Gertz are more in need of defamation protection that those who are in the public eye.
While the United States take the approach of “actual malice”, Canada decided that “responsible communication” was the better approach. In lieu of discovering that Canadian laws were considered strict in regulating free speech, “responsible communication” came into place in order to give journalists more flexibility in what they were saying as long as it was beneficial to the public. By adapting the method of public interest, some derogatory statements towards individuals can be made if it attributes to the best interest of the citizens. A case that uses this idea would be Grant v. Torstar, in which Peter Grant and Grand Forest Productions decided to sue The Toronto Star for making defamatory statements on their reputation by publishing an article that accused (and exposed) Grant of attempting to make a private deal with a former premier of Ontario to propose a private golf course development. In the end, The Toronto Star won the case since it was determined that the article was of public interest.
Another Canadian case that demonstrates this would be Quan v. Cusson, in which defamatory statements were written by the Ottawa Citizen stating that Constable Danno Cusson falsely represented himself at Ground Zero in order to help rescue efforts, but instead disrupted operations. Danno Cusson won the case by proving that though some of the information that the Ottawa Citizen wrote were correct, not all of the information presented was correct, thus damaging his reputation. Since there was no malice involved in this case, the “responsible communication” was established on appeal. In terms of responsible journalism, factors in this defense include public importance, seriousness, deadline of publication, reliability of source, etc.
Personally, I prefer the United States’ “actual malice” approach due to the fact that it looks more at specific cases rather than generalizing every case to follow certain guidelines. As John Stuart Mill said, “the censored opinion may be true and the accepted opinion may be in error”. Just because an opinion is not accepted by society does not mean that there is no truth in what is said. The American system looks thoroughly at not only the intent of the speaker, but also whether they have actual reason to believe what they are saying to be true.
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Overall I thought your argument was well-developed and offered useful background information on key libel cases in the United States and Canada. One of the first problems I see, however, is your use of Artcile 19 of the Universal Declaration of Human Rights. Nothing in Article 19 protects speaker anonymity. Yes, it says they have freedom to express their opinions through any medium, but does not concede that they can be guaranteed anonymity. So in the case of Cohen and Google, I don’t think this article is very useful.
ReplyDeleteLike you, Christina, I also prefer libel law of the United States. However, there is one statement you make that could be more thoroughly developed. The last statement of your argument says, “The American system looks thoroughly at not only the intent of the speaker, but also whether they have actual reason to believe what they are saying to be true.” I would hesitate to place the actual malice test under the umbrella term “intent.” In my opinion, the greatest aspect of US Libel law is that the speaker does not have to prove his/her intent. Rather, the plaintiff and court must seek to uncover four important aspects about the speaker and his/her message: 1) Their status as a professional communicator or not; 2) The deadline of their message; 3) The reliability of their sources; and 4) the room for doubt in the truth of their message. Although I agree that these terms could possibly be lumped together under the term “intent,” I think it has the possibility also to lead your argument astray. When I think of intention, my mind automatically contemplates the impossibility of getting inside the speaker’s mind. How can we know their actual intent, if they are in no way responsible to prove their innocence?
Hi Christina,
ReplyDeleteThank you for providing clear descriptions of Canada’s and America’s legal standing on libel defense. The questions that you pose about protection of anonymity absent in Article 19 of the Universal Declaration of Human Rights is important as are the implications of free speech listed under Article 12 that you quote as, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” As you stated, this was relevant to the case of Liskula Cohen vs. Google, Inc. and or its subsidiary blogger.com 2009
While noting that Canada’s free speech and libel laws have improved in recent years, I would agree with you and still choose the free speech and libel laws that American protects. Yet, I would be disagree with your following statement, and advise that one be careful about saying that “The American system looks thoroughly at not only the intent of the speaker,” because intent can be misinterpreted by different groups of people. An individual of a group of people may have good intentions in their beliefs, yet be seen with bad or hidden intentions by others. Therefore, intention could become increasingly problematic to determine, defend or prosecute. Instead, the American system looks past intent and rather at the “actual malice,” you stated in order to determine the validity of ideas expressed by any medium. In comparison to intent, “actual malice,” would produce evidence that could be researched and investigated in terms of actions taken to produce ideas distributed, yet intent could only constitute mental motivations that would like stated above, prove difficult to determine.
I like your approach to this posting because you first lay out the framework of the UDHR and then gradually incorporating specifics of each country’s libel laws. I think your argument is thoughtful and references the case laws in a clear way. However, you say, “In the United States, many believe that there may be too much protection for the speakers” and I am not sure how this fits with the rest of your argument. A citation or elaboration is needed because as it stands now it seems to confuse your argument rather than improve it. I agree with you that the American libel laws and concentration on “actual malice” do a better job of protecting individual’s rights to expression, and I like how you ground this with Article 19. While the anonymous blogger in Cohen v Google was expressing an opinion, Article 19 does not apply to rights of anonymity as you claim. The blogger should be protected according this article even with revealing their identity. I think the confusion here is that you do not feel Google should have disclosed their identity.
ReplyDeleteTo clarify this, I would incorporate Haiman’s philosophy. He says several things that would ground your argument in philosophy. I think you could make the argument that the blogger expressed their opinions of the model in a non-direct way, and did not cause harm that would be of “a serious material nature”. Haiman would also find that the blogger did not coerce others to believe her statements against Cohen and did not encourage illegal conduct from their readers. You may also be able to use Emerson’s theory of expression because the blogger did not confront Cohen in a direct manner and therefore was not looking to provoke her. The decision to use Mill’s quote at the end allows you to bring your argument back to the first case you discuss. This is a good tactic to lead into your evaluation that “just because an opinion is not accepted by society does not mean that there is no truth in what is said.” Choosing America’s libel laws here is wise because it would better allow for Article 19 to be upheld and for expressing unpopular opinions. The American system does allow for more freedom of expression and allows speakers the protection to do so. I think you establish this clearly and I do agree that the US’s “actual malice” approach is more desirable.
Christina- I too prefer American libel laws to those of Britain and Canada. I thought that you did a thorough job of choosing and explaining your cases, as well as supporting them thoughtful analysis.
ReplyDeleteHowever, I think your argument could be stronger if you talked about which philosopher best supported your claims. Although you briefly mentioned J.S. Mill in your conclusion, I think it would have been beneficial to delve into his philosophy and apply it to libel laws, as well as some of the cases that you mentioned.
Another philosopher that might have been useful to look at would have been Haiman (he was mentioned by several other bloggers for his beliefs about the promotion of the individual self), and Mieklejohn, a philosopher who argues for absolute protection for political speech, but also requires Fifth Amendment protection for private speakers. I think that by looking to some other philosophers for support of your argument would have allowed you to flesh out some of your claims and come to a stronger conclusion.
That said, although you talked about some of the ways the Canada is making progress in developing their libel laws, I liked your statement that "Canada determines libel in terms of public interest while the United States chooses the approach of “actual malice” on the speaker’s part", and I agree that the "responsible communication" approach utilized in Canada is too flexible and ambiguous to protect the speaker's rights to the degree that they should be protected.