A Right to Defame?

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.

Humanitarian Law Project v. Holder

In the case of the Humanitarian Law Project v. Holder, a group of individuals consisting of a retired judge, a human rights organization and various nonprofit groups (aka Humanitarian Law Project) was charged of providing “training,” “expert advice or assistance,” “service,” or “personnel” to terrorist organizations. However in the view of the Humanitarian Law Project, they were simply “[seeking] to engage in pure political speech and promoting lawful, nonviolent activity. Since there was technically no harm done and no solid proof of aiding terrorist groups, should the Humanitarian Law Project be charged with anything? In any case, the accusations are directed towards the HLP, a group that is supposedly dedicated to advancing human rights and promoting peace.

In the United States Constitution, the First Amendment argues that, “Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble”. The Fifth Amendment of the Constitution also says, “No person shall … be deprived of life, liberty, or property, without due process of law.” Now the question is, should those laws be protected if the safety of the citizens is possibly in danger? Should freedom of speech prevail over protecting people from the risk of a future terrorist attack? Where we draw the line is accordance to our views of what is considered peaceful speech and assembly and what is considered teaching and promoting possibly dangerous attacks on our people.

According to John Stuart Mill, all individuals should have the right to act and say whatever they please, as long as it doesn’t violate nor harm others. Therefore, I believe that the harm principle is an important idea to keep in mind when discussing issues like this. As a prominent advocate for the Freedom of Speech, even John Stuart Mills has some limitations for what Freedom of Speech really entails. I think that the idea that society does not have the right to intervene if no harm is being done to others or should be applied in this case. Considering there was no harm done and the Humanitarian Law Project’s intention on the surface was to promote peace, it doesn’t seem as though this group should be criminalized for their actions.

The scrutiny level that I feel is appropriate would probably be intermediate scrutiny. I chose intermediate due to the fact that the government did not have sufficient evidence that the speech was harmful and should be regulated. They also did not have significant proof that the Humanitarian Law Project was attempting to aid terrorist groups.

In conclusion, I feel that as long as the Humanitarian Law Project does not have the intention of harming people, their speech should be protected under the First Amendment. The Humanitarian Law Project proved to only be having peaceful, nonviolent meetings therefore no danger was present…nor was danger to the people an objective in these meetings. Though I definitely believe that the safety of the people should be a top priority, it is also important that every group deserves to have the same rights—as along as the group is not a threat.