Having the burden of proof on the defendant is a terrible idea. The imbalance in the UK libel system has given rise to libel tourism [1]. This is something the UK has been seeking to reform [2].
If you're a public figure or an organisation then we have to accept that some people are going to say some crazy things otherwise it would be too easy to use the courts to silence legitimate criticism.
As for Elsevier's package pricing strategy, it's interesting how similar this is to how cable companies price offerings.
In the case of cable companies (IMHO) we need structural separation between those that own the physical network and those that provide services on it. Around the world telecommunications policy is slowly heading in this direction in relation to the "last mile".
In the case of academic journals it seems academics are victims of themselves basically. Prestigious journals carry weight because academics give them weight. Promotions and continued employment sometimes revolve around getting published. At that point the academics are captive to those that provide those journals.
Previously distribution was a key problem. Now obviously it isn't. Some disciplines have taken a far more open approach to publication and peer review. This problem will probably be solved as more disciplines get organized and go their own way.
I don't exactly sympathize with the panicky rhetoric of the pamphlet that was about, but nothing in it comes anywhere close to the kind of thing libel law legitimately protects against, and it looks like stuff that would be perfectly legal to say in more reasonable jurisdictions like Holland or the US.
But yes, even more outrageous than English libel law (there's no such thing as "UK libel law," since Scots law is different) is this Libel tourism business.
I wonder what it would take to get this reformed. Any British people on here who have a better view of the local political climate? I somehow suspect that a push from local constituent carries more weight in British politics in today's climate than ECHR judgments like the one in the McLibel case. Is there anyone strongly pushing for these strict laws, or is it just a case of inertia combined with nobody pushing very hard against it?
It's actual until recently been a bit redundant as Wales was only really created as a recognisable entity as it was annexed to England (thus becoming part of England as any other county or region, Yorkshire for example).
I've not really researched if Wales exists as a country now only that someone told me the laws establishing the Senedd and giving it powers had changed the situation.
English and Welsh libel law is being reformed - there's a bill going through parliament at the moment. The new law is a long way from perfect but is an improvement.
Scots libel law is different but shares some of the problems as well as having several of it's own.
My favourite is that historic (not something that has been used recently, though technically still true) if you hurt someone's feelings it doesn't matter that you were telling the truth...
Linked PDF is an 'article' in "Chaos, Solitons and Fractals" titled "Photo Gallery", which is exactly what the title suggests: a gallery of photos of El Naschie with colleagues, photos of El Naschie on vacation, and one screenshot of a web page.
give a lot more background on the details of this particular case, and on which defenses to libel claims are available under British law. Proposals for legal reform in Britain are also discussed at those links.
"By introducing a space-time which is not only four-dimensional but also infinite-dimensional, and by using hyperbolic random fractals, I was able to precisely model this stormy ocean in which relativity and quantum mechanics can live side by side."
Great news, but I wished the article went into more detail about the original lawsuit and the strategy used to win the case.
To me, the big story in all of this is Elsevier’s "package sales strategy". They are a much bigger foe, so accusing them of wrong doings directly would be a much bigger fight. Their dominance in the industry will hopefully soon evaporate.
Yes -- if it weren't for the package sales strategy, this loser with his own journal would be writing for no one but himself (and I'm sure Elsevier wouldn't pay him to do that).
This is a great example of how Elsevier uses its position in the industry to extract money from universities far out of proportion to the value they provide. I hope academia gets fed up with this soon and stops paying.
You don't "have to" do anything. Ignoring criticism is always an option; you can rely on the audience to be able to tell truth from falsehood in many cases. People lie, and say mean stuff. Must there be a remedy for that built into the legal system? The US choice (and this stems directly from the first amendment) is broadly no. You can sue for damages from libel, but you need to be able to prove to the court that the offender actually knew what they were saying was wrong. Otherwise, they were just stating their opinion, however misguided it might have been. Opinions are protected speech.
You can sue for damages from libel, but you need to be able to prove to the court that the offender actually knew what they were saying was wrong.
It's not quite that simple. US libel law recognizes two classes of people: public figures and private citizens. Both classes of people have to demonstrate that the claim is false. Hence my high school journalism teacher's repeated phrase, "The best defense in a libel case is the truth."
For private citizens, a false claim is enough for libel. For public figures, it is not. Public figures have to prove malice. That is, the defendants knew that the statement was untrue, and said it for the purpose of causing harm. That's a very high bar.
The "actual malice" standard for libel against public figures does not require that something be said for the purpose of causing harm. It has nothing to do with the ordinary dictionary definition of the word "malice". Rather, it requires that the statement be either knowingly false, or made with reckless disregard for the truth. Reference: http://en.wikipedia.org/wiki/Actual_malice
you need to be able to prove to the court that the offender actually knew what they were saying was wrong AFAIK not exactly. Reckless negligence (i.e. not caring at all about the truth of the accusation) may be enough - i.e. if one calls somebody a child molester without making any effort of finding out first if he is and without any base - it may be grounds for a suit, if it is not completely obvious that it is false and ridiculous.
The legal system should probably get involved when there is an imbalance of power.
Yes if an anon user on HN says another anon user on HN is a vi user instead of an emacs user - so what?
But if the NYT runs a front cover accusing me of some terrible crime, do I have to prove that I lost financialy because of it eg. I didn't get a new job, in order to get more than a retraction at the bottom of page 9?
If the Times truly and reasonably believed you were guilty, then you weren't libeled under US law. If they lied, then you have a case (and you don't have to "lose" anything financially per se, damages are more general than that).
I guess that doesn't seem to bad a compromise to me.
That's a good point, I'd forgotten about the private citizen distinction. Though again, the fact that the posited story was on the front page of the newspaper would sort of be an existence proof that the target was a public figure. Citizens whose lives are newsworthy are public, sort of by definition.
I was assuming he was positing it as an absurd example: he is clearly not a public figure, and was wrongly accused of something on the front page. Also, the distinction between public figure and private citizen is clearly not whether or not they are newsworthy; such a distinction, as you point out, would always come up "public figure" by definition.
If the NYTimes accuses me of having syphilis or being a child molestor, damages are assumed. You don't have to specifically show that you have been harmed.
You may need to show that the NYTimes knew it wasn't true, or had "reckless disregard for the truth," depending on your state and the specific case law.
Journalists who respect their craft report verifiable facts like, "According to police, excuse-me is a suspect in an ongoing investigation into [serious crime]." This story may damage you, but if a professional journalistic organization went to press with it, it is almost certainly verifiably true (barring a malicious reporter whose editor/fact-checker was laid off five years ago because Information Wants To Be Free).
Until your trial, "excuse-me committed [serious crime]" is undetermined and possibly libelous, but assuming the police did, in fact, name you as a suspect, "Police say excuse-me committed [serious crime]" true and therefore not libelous.
It's not that black-and-white. You could definitely win such a case in the USA, if you could show as the plaintiff that you have never been accused of such a crime, and that the publication of such information caused you harm.
In the US, we grant much more latitude for commentary on public figures, and on comment on professional duties. If you were sued over writing an expose on the professional behavior of an editor of a journal, based on interviews with peers, it would be nearly impossible to get a court to even hear that case.
He does not have to. There are certain types of defamation which are considered "per se libel" or "per se slander". He doesn't have to prove anything other than that you made the statement--you would have to prove the statement is true.
Moreover, per se defamation does not require proof of damages; the very act of the defamation is damage enough.
In 1817, William Hone, a satirist, defended himself against multiple charges under Britain's then-antiquated libel laws. He won, despite all odds. Read Ben Wilson's recent "The Laughter of Triumph: William Hone and the Fight for the Free Press" for more.
What boggles my mind, what truly causes me little conniptions, is that even after supposed reform of the various UK libel laws, they are still used today to silence one's opponents. IANAL, etc., but these laws do seem, uh, heavy handed and unfair, arming the slighted with fully automatic sledgehammer launchers to use against any foe, real or perceived.
Another case that HN'ers may be familiar with is that of Simon Singh. http://en.wikipedia.org/wiki/Simon_Singh Its a joy to read his books and he hangs out on HN at times too.
For another case of sanity reigning supreme after an English libel law suit, there's Simon Singh's victory against the British Chiropractic Association, after an article he wrote in the Guardian:
I'm a big fan of the English libel law; to my mind, if you write something about someone, you should bear responsibility for ensuring that what you write is true, and have the proof to back it up.
Placing the responsibility on the person you're writing about seems just plain unfair to me.
The only problem with the English libel laws is it takes so long to resolve a case. I don't understand why it takes so much time and expense, and would prefer this aspect to be fixed first - if at all possible.
You may not be aware that the truth is not an absolute defence against libel under English law. Not only do you have to prove what you wrote was true, you also have to prove it was in the public interest to publish it.
May I suggest you haven't thought your position through as carefully as you should then? You made an assertion for which you lack "the proof to back it up". Isn't that exactly what you're claiming ought to be a tort?
Personally, I'm happy that I don't usually have to go double check every single fact I assert on forums like this one. That does mean that I'm wrong occasionally, but I'm happy to be corrected by others. I think less interesting conversations would happen if this wasn't true.
You made an assertion for which you lack "the proof to back it up". Isn't that exactly what you're claiming ought to be a tort?
No, I'm talking about libel laws. From another comment lower down:
"There are two versions of defamation, libel and slander. Libel is when the defamation is written down (including email, bulletin boards and websites), and slander is when the incident relates to words spoken."
Just to clarify, from Wikipedia:
Defamation—also called calumny, vilification, traducement, slander (for transitory statements), and libel (for written, broadcast, or otherwise published words)—is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image
Under the UK laws, fair comment is a valid defence. Again from Wikipedia:
This defence arises if the defendant shows that the statement was a view that a reasonable person could have held, even if they were motivated by dislike or hatred of the plaintiff.
I think less interesting conversations would happen if this wasn't true.
The libel laws have been around a long time, and apparently from 2006, writings on the internet have been seen as being public enough for prosecutions to take place. Have you noticed a drop-off in internet conversations from British contributors since then?
Foreign "crank" defending himself - VS - one of the oldest and most prestigous science journals now owned by a huge publishing company.
Now imagine the next case is a multinational drug company suing an individual researcher or grad student because their published results don't fit with what the drug company would like to see.
If everyone had to prove that what they said was absolutely true before saying anything then nothing would get said as it is almost impossible to prove a positive.
Really? I thought it was almost impossible to prove a negative.
"You eat babies in your spare time!"
"No, no I don't."
The 1st can produce a picture of the person eating a baby, how does the 2nd prove that he doesn't eat babies?
If the person who had the claim made against them had to definitively prove that beyond a doubt he doesn't eat babies - he'd have to have had someone recording him for every minute of his waking life, including those moments prior to the claim.
The only way to prove a negative is to run a (perhaps nearly) infinite number of tests and never get that result.
There is no trouble in proving a negative that does not exist for proving a positive. For example, you can prove to your own satisfaction that there are no monkeys on your shoulder, even though that is a negative claim. The problem of proof to which you alluded with your example is just the famous problem of induction, which exists for both positive and negative claims.
The negative claim that so-and-so has never eaten a baby is difficult to prove because that claim is actually a group of claims: so-and-so was not eating babies at time one, time two, time three, etc. Each and every claim in that sequence could be proven with a photograph that shows so-and-so doing something other than eating babies. Each negative in that sequence is provable. The problem is the length of the sequence: you need hundreds and hundreds of proofs. You would have the same trouble with any similar sequence of positive claims, such as the sequence entailed by the statement that there is a human-habitable planet in one out of ten solar systems.
Exactly, it has nothing to do with negativity. What people generally mean is: "It's almost impossible to prove a universal proposition." This is because doing so would involve examining all things to which that proposition would apply.
That's equally difficult whether you're trying to prove that "All swans are white" or "No swans are black": the only ways to conclusively prove either involve examining large numbers of objects.
... and most of the examples shows proving a positive as well, and also clearly exerts why the statement I said in my post is not falsifiable. Your original statement, was, btw, "it is almost impossible to prove a positive." So, how is it nearly impossible to prove "this swan is white," but highly possible to prove "no swan has ever been black?"
I can prove there is a mouse that is blue and black on my desk, but I cannot prove that there has never been a red and black mouse on my desk, I can only assert such.
Why don't you try your best to summarize the pertinent aspects of falsifiability for the community? I'll try to start. Here's some background: http://en.wikipedia.org/wiki/Falsifiability
If everyone had to prove that what they said was absolutely true before saying anything then nothing would get said as it is almost impossible to prove a positive.
Doesn't the coexistence of the libel laws and the media industry kinda prove you wrong there?
I have no real knowledge of the law. But I thought it was more along the lines of, you have to have sufficient evidence. If it transpires you were wrong you're ok as long as you had good reason to think it was true.
I'm very intrigued to know how exactly the law works now.
I'm very intrigued to know how exactly the law works now.
I came across the following basic explanation a while ago, seems like a pretty decent write-up:
There are two versions of defamation, libel and slander. Libel is when the defamation is written down (including email, bulletin boards and websites), and slander is when the incident relates to words spoken.
In the UK, if someone thinks that what you wrote about them is either defamatory or damaging, the onus will be entirely on you to prove that your comments are true in court. In other words, if you make the claim, you've got to prove it!
For example, if you said Peter Sutcliffe had never paid his TV licence in his life that would not be defamatory - or it is very unlikely to be. However, if you said the same about TV boss Greg Dyke, that would be.
Why? Because Peter Sutcliffe's reputation will not be damaged by the TV licence revelation (he is after all a mass murderer). Of course, his lawyers would still be free to bring the case to court, but it is very unlikely they would succeed.
Greg Dyke, on the other hand, runs the BBC , so to say he wilfully doesn't pay his TV licence could have a seriously detrimental effect on his career. He could be fired or his reputation damaged (note:Dyke has now left the BBC).
Similarly truth isn't an absolute defence.
If I stated a particular politician was gay or had an abortion, every time my publication mentioned them - even if that was true - then if it was done purely malicously, ie. it had nothing to do with the article, that could be slander/libel.
There are exceptions for reporting legal judgements, which is why its important to always refer to the convicted liar Jeffery Archer
Historically some people wanted to keep their sexuality private because they felt they might lose sales / votes / whatever if people knew their sexuality.
Don't forget that homosexuality has only relatively recently become legal in England.
The Jason Donovan case is particularly interesting.
Hopefully these days you couldn't be because nobody should care.
But if you were running say a local paper and you went out of your way to consistently describe a local politician or school teacher/principal as "the homosexual Mr Smith" and your intentions were malicious they could have a reasonable chance of damages from you.
According to the article, this guy is only expecting about 70% of his costs to be covered in the end. He said he was expecting to be out around 10,000 pounds.
If you're a public figure or an organisation then we have to accept that some people are going to say some crazy things otherwise it would be too easy to use the courts to silence legitimate criticism.
As for Elsevier's package pricing strategy, it's interesting how similar this is to how cable companies price offerings.
In the case of cable companies (IMHO) we need structural separation between those that own the physical network and those that provide services on it. Around the world telecommunications policy is slowly heading in this direction in relation to the "last mile".
In the case of academic journals it seems academics are victims of themselves basically. Prestigious journals carry weight because academics give them weight. Promotions and continued employment sometimes revolve around getting published. At that point the academics are captive to those that provide those journals.
Previously distribution was a key problem. Now obviously it isn't. Some disciplines have taken a far more open approach to publication and peer review. This problem will probably be solved as more disciplines get organized and go their own way.
[1]: http://en.wikipedia.org/wiki/Libel_tourism
[2]: http://www.telegraph.co.uk/news/uknews/law-and-order/8379196...