Wednesday, October 17, 2012

Freedom of speech is different in Europe

We the People
Don't take this for granted
Image by Chuck Coker
Matthew Woods, a 19-year-old British man, was jailed for making offensive jokes. I'm not exaggerating. A five-year-old girl, April Jones, was murdered and Woods started making disgusting jokes about her murder on Facebook. He received twelve weeks of jail time for this. Even a quick reading of other assaults on liberty in the UK are quite chilling. DNA databases, child databases, national ID databases, CCTV everywhere and yet the alleged trade-off — you give up your privacy and we'll give you security — has never manifested. The crime rate is horrendous and some argue that the UK crime rate is worse than the US.

It's also interesting to note that in Europe, libel can extend to groups. For example, in the US if I write that a particular priest is a child molester, I can be charged with libel, but if I were to write that all priests were child molesters, it's probably protected speech. Many Americans would be aghast at many European laws which extend libel protection to groups, but six million dead jews makes a powerful rebuttal. These laws are not just a silly historical accident.

Well, that's not entirely true. In the UK, unlike the US, truth is not a defense in a libel case and British libel laws have made a mockery of free speech claims in the UK. If you're wanting to move abroad and you care about issues like this, you may be in a for a rude shock. Fortunately, I've found that when I move to a new country, I'm less likely to have the same emotional investment in the political situation, allowing me to distance myself from the most egregious problems, though some cultures (Saudi Arabia, for example) are so at odds with my own that I think I would struggle to live there.

Are you an American? Do you think that only the US conception of free speech is appropriate?


  1. Off you go:

  2. Jailing for speaking brings more problems than it solves. Ok, slandering dead 5 year old is something else - but 4 weeks of jail for religious slander is just making martyrs and proves the "point" of radical opposition parties utilizing this rhetoric. You don't change your mind or "get correct" in 3 months of jail.

    If you try to argue for more religious freedoms for minorities to counter a proposed oppression - yet a government is in fact *jailing* the people who disagree with them - who looks like the oppressed? If you are a religious minority and make public death threats for people slandering your idols - this gets protected since religious freedom and assumption of minority oppression.

    Then again, people calling said religion violent and oppressive (towards women and children) get fined and jailed. This just gives ammunition to the far-right parties as the law-establishment appears to be taking a stance and jailed demagogs get martyred. They are hacking the conception of free-speech seemingly stacked against them - to promote their agenda and for proving a point.

    It won't end well. On the other edge of the solution would be more strict control over public speech. Fascism. On the other end - more liberal stance towards slander and agitation.

  3. "In the UK, unlike the US, truth is not a defense in a libel case "
    Really? That's news to me-

    "2. DEFENCES
    82. Truth as a defence.

    The defence of justification is that the words complained of were true in substance and in fact1.

    Since the law presumes that every person is of good repute until the contrary is proved, it is for the defendant to plead and prove affirmatively2 that the defamatory words are true or substantially true3. If a defendant pleads justification, where the words complained of consist of statements of fact and comment, he must prove that the defamatory statements of fact are true or substantially true and that the defamatory inferences borne by the comment are true4. Truth may be pleaded as a defence to the whole of the defamatory statements or in the alternative as a defence to a severable part of them5.

    1 Justification is a defence because the law will not permit a person to recover damages in respect of an injury to a character which he either does not, or ought not, to possess: McPherson v Daniel (1829) 10 B & C 263 at 272 per Littledale J. By contrast a notice of mitigation only concerns a person's actual reputation (from Halsburys Laws of England)

    1. Hi whiskeylover,

      Can you provide a link for that and when it was passed? I refer you to this Guardian article from 2011 which discusses a bill which switches libel defenses from "justification" to "truth". I do not know if the law passed. Prior to that, the UK was famous for "libel tourism" where apparently true claims were nonetheless held to be damaging and people could be sued for all manner of silly things.

    2. Can't provide a link, as it's from a subscription legal resources website- it's current law though. The Grauniad, of course, is not just dubious in its spelling abilities, but also fond of sensationalism.

      Justification (truth) has been a defence for years, but I'll just look at some of the most recent cases:

      Here is an extract from Tugendhat J's judgment in LNS v Persons Unknown [2010] EWHC 119 (QB) at paragraph 96

      "Before leaving the topic of defamation, I note that it is only in limited classes of cases that the law of privacy gives rise to an overlap with the law of defamation. In broad terms the cases may be considered in at least four different groups. The first group of cases, where there is no overlap, is where the information cannot be said to be defamatory (eg Douglas v Hello!, and Murray). It is the law of confidence, privacy and harassment that are likely to govern such cases. There is a second group of cases where there is an overlap, but where it is unlikely that it could be said that protection of reputation is the nub of the claim. These are cases where the information would in the past have been said to be defamatory even though it related to matters which were involuntary eg disease. There was always a difficulty in fitting such cases into defamation, but it was done because of the absence of any alternative cause of action. There is a third group of cases where there is an overlap, but no inconsistency. These are cases where the information relates to conduct which is voluntary, and alleged to be seriously unlawful, even if it is personal (eg sexual or financial). The Claimant is unlikely to succeed whether at an interim application or (if the allegation is proved) at trial, whether under the law of defamation or the law of privacy. The fourth group of cases, where it may make a difference which law governs, is where the information relates to conduct which is voluntary, discreditable, and personal (eg sexual or financial) but not unlawful (or not seriously so). In defamation, if the Defendant can prove one of the libel defences, he will not have to establish any public interest (except in the case of Reynolds privilege, where the law does require consideration of the seriousness of the allegation, including from the point of view of the Claimant). But if it is the Claimant's choice alone that determines that the only cause of action which the court may take into account is misuse of private information, then the Defendant cannot succeed unless he establishes that it comes within the public interest exception (or, perhaps, that he believes that it comes within that exception)"

      What the Guardian article states is: "The bill includes a new statutory defence of truth which will replace the current common law defence of justification. It also includes a statutory defence of honest opinion replacing the current common law defence of fair and honest comment." - what this IMPLIES is that truth is not currently a defence. In practice, this is precisely what justification is- it is merely giving it a new name, rather than changing the substance.

      The article doesn't actually say anywhere (other than by implication) that truth is not currently a defence. The changes are aimed at reducing libel tourism, but that merely means that the changes are aimed at WHO can sue in the English courts- i.e. what jurisdictions the courts have, rather than what the actual defences will be. The article does state that a new "public interest" defence is to be introduced, but that is in addition to the current defences.

  4. Anon 10.23. Unfortunately, the West seems to be headed towards stricter control of public speech. I was appalled to read, on the Wikipedia page Dave linked for us, how many Western nations ban "insulting" people or organisations (e.g. religions). As far as I can tell, "insulting" isn't even defined; that's very oppresive.

    Often, there are separate bans on what is called "Holocaust denial", which in practice seems to mean questioning specific details of the standard Holocaust report. When Jewish pressure groups ban one thing and Moslem pressure groups ban another thing, and some Christian fanatics try to ban yet another thing (Jesus portrayed as a homosexual, for instance), there isn't too much space left for us heathens!

    We are very poorly served by our political representatives, aren't we, when they impose all these bans. A few generations ago, failure to attend church warranted a fine of a week's wages. I wonder if the authorities have in mind to return to that sort of compulsion.