Thursday, 14 May 2009

Don't Criticise or We'll Sue

My friend David Allen Green has an opinion piece in the New Scientist on the BCA versus Simon Singh case. This case reflects the problems of English Libel Law and its unjust "reverse burden of proof" requirement. Such a law is entirely entirely antithetical to freedom of speech.

The issue of freedom of speech only occurs if someone does not like what is being said, usually about them or someone they feel affiliated with and wish to defend. If no-one had any such issues then there would be no issue of freedom of speech, that is freedom of speech is really freedom to criticise. It is through criticism, and equivalent responses from the targets of criticism, that our knowledge and understanding of the world can be improved, errors eliminated and mistake minimised, even if certain respondents stubbornly refuse to accept this. The threat to freedom to criticise is not responding in kind but using the threat of violence and violence as a response. This is a value that should be defended on behalf of us all by our governments and the ability to criticise our governments themselves is an important part of safeguarding all our freedoms. Governments and other authorities cannot and should not expect to be immune to a freedom to criticise.

Much scientific debate (and at least some political and economic debate) is of the form of constructive criticism - identifying errors of reason and mistakes of fact, and seeking the implications of such errors being eliminated and mistakes being minimised. This is how we can improve our knowledge of many aspects of the world from the personal to the global.

Another form of criticism is the use of social forces of praise and blame, reward and penalties to encourage certain desires hence actions and consequences, over others. This is how we can improve the way people interact with each other in a shared living space that we all inhabit in the world today. One of the means to do this is to show that a persons reputation is unjustified and as a successful result of such blame and penalty - such as not voting for them again- of course their reputation will be damaged. That is the point of the use of social forces, the danger of damage to one's reputation, whether in private circles or in public, is one of the ways people are held accountable for their actions and encourages agents to avoid acting so as to warrant the approbation of others and damage to reputation, with the loss of various types of benefits that might follow from such a damage.

Still at some point these processes can be abused. Some can provide an unfair comment (and over-influential comment - due to differential access to communication channels for example) or make a false claim which as as a result can unfairly and unreasonably damage or defame a person's reputation. Such damage is without warrant and we need a means to remedy such situations, where the existence of such remedies itself is a deterrent to making such unfair comment and false claims in the first place. This is what libel law exists for as a means of deterring and settling civil disputes between person.

Even a just version of a libel law has many issues around it as disputes arise over whist is true and false and what is fair or unfair comment. This cannot itself be used to prevent criticism. In order for freedom of speech to be protected and so freedom of criticise to their will be disputes over what is fair comment and what is true of false. It is through such disputes that we can better determine what is fair comment and what is true or false. The prevention of such discussion and debate will only mean that we are incapacitated in our ability to detect errors and mistakes and can suffer a wide range of consequences as a result of relying on such untested and potentially flawed knowledge.

Certainly the point at which one party decides to take legal action against another using just libel laws is fuzzy. Still it would be up to the courts to decide whether a case is justified or not, preliminary hearings can determine that such a case idoes not warrant being take to to trial. Those that remain go trial. Different governments will determine different parameters for when statements are actionable but this is really up to the experts - the judges and lawyers - to examine on a case by case basis.

In this country we do not have anything like such a just libel law. We have a "reverse burden of proof" and where money can turn the issue into "might makes right". Green writing as Jack of Kent has specialise on in his blog on this thorny issue of libel law reform and it is a severe negative to our liberal democracy that it exists as it does.

Again the usual way to deal with such dispute is to respond in kind - that is with words not violence - and show why the comment was unfair or that the accusation was false. Still at some point a person (or a legal "person" such as a corporation) reputation has been damaged in an unwarranted fashion.

There are two issues here, the BCA taking advantage of the laws as they stand to sue Simon Singh, and this is what Green's article directly addresses. It is deeply problematic and I will write on this further. However I wish to make my final point in reference to yesterday's post.

Judge can operate within legal statutes and create new common law as a result of legal judgements. This is a way they can make flawed laws better without requiring new legislation. The common law fixes the problems of existing legislation. Or they can make them worse than they already are. This is what I believe Eady has done and why I am calling for his resignation. I will expand upon this in my next post.