Posted tagged ‘defamation’

Collegiality, the frank expression of views and the university community

August 17, 2011

A recent short news item in the US journal Chronicle of Higher Education caught my eye. A professor at Santa Barbara Community College had written what is described as a ‘scathing internal memorandum’, seriously attacking his head of department and accusing him inter alia of ‘lewd behaviour’. The whole episode made its way into the Californian courts, and there not was ruled that there was no defamation because the memo had been written ‘without malice’.

I won’t suggest whether the court was right or wrong, not least because I don’t know enough about the details of the case to be able to do so. But it does strike me that what one might euphemistically describe as frank expressions of opinion are common currency in academic exchanges of views, partly because academics are encouraged to present and defend their views and positions in a robust manner. For anyone involved in management positions in universities it is not a rare experience to hear from colleagues who have been hurt or who feel stressed by such experiences.

Of course as academics we value freedom of speech and academic freedom. But I wonder whether we sometimes care enough about the way in which the exercise of these freedoms can undermine those other key characteristics of successful academic institutions, collegiality and goodwill. Is it really an expression of academic freedom to launch personal attacks, and is there not a risk that these will generate an atmosphere in which less forceful faculty retreat from participation in discourse so as not to find themselves in the firing line? In fact, can this problem be aggravated by the use of email, particularly when widely circulated, to launch harsh criticisms of others?

I am quite willing to believe that the Santa Barbara professor did what he did without malice. But I don’t think he was setting a good example. And I don’t think people should hide behind academic freedom when launching personal attacks.

A critical book review does not constitute libel

March 6, 2011

In order to advance their careers, academics are expected to publish books and peer-reviewed articles. When they do so, they in turn hope for reviews and citations, because such recognition of their published output constitutes an endorsement by the wider expert community. Of course these reviews may turn out to be critical. A French court has now suggested that such criticism, where it stays within the limits of ‘the kind of criticism to which all authors of intellectual work subject themselves when they publish’, does not constitute libel.

The case involved somewhat unusual circumstances, as the author of the book, Karin N. Calvo-Goller, is resident and works in Israel, while the book review was published online in English on an American website. Dr Calvo-Goller chose to bring her action in France, and the French court, the Tribunal de Grand Instance de Paris, found for the defendant largely on technical grounds, in that they took the view that the plaintiff had been ‘forum shopping’ in an unacceptable manner: i.e. she had looked for a jurisdiction where the publisher would find defending the action most difficult but where there was no strong connection between the alleged libel and the jurisdiction chosen. But the court also does not appear to have shown sympathy for the idea that authors can seek to suppress unfavourable reviews by threatening or pursuing legal action for libel. That would be an important finding in support of academic freedom.

Regulating speech on the internet?

August 4, 2010

When I was a law student in the mid-1970s, libel was a straightforward enough concept. Well actually, it was of course fairly complex, but nevertheless it was clear that the purpose of the law was to give a remedy to anyone who had been the subject of untruthful and damaging comment that had been published to third parties. What made it an effective cause of action for anyone damaged in this way was that the publication was always likely to involve a major corporate publisher whose pockets would be deep enough should a case be won: typically a book publisher or  newspaper.

The problem with libel laws however was that someone with a lot of resources could sufficiently frighten a publisher by holding out the prospect of years of expensive litigation with an uncertain outcome. Faced with the prospect of this, newspapers and publishers were often tempted to take the easier and less expensive route of not publishing whatever the potential plaintiff objected to, even where the proposed publication was true and the putative plaintiff’s case had little merit.

Then came the internet, and everything changed. Nowadays everyone with a computer and an internet connection can publish anything they like at the click of a mouse. It is extremely easy and cheap. No major publisher or newspaper is needed for this. The crankiest and craziest of individuals with the most absurd chip on their shoulder can instantly take their case into the public domain. And if anyone is wronged, they may then be forced to take off on a wild goose chase as they try to find out where in the world, and under what defamation laws if any, the thing was actually published. They may also find that the person or organisation owning the server or hardware which facilitated the publication has protected themselves effectively (or at any rate may appear to have done so) from any liability for what the author has said. And they may find that the perhaps anonymous author cannot be traced at all.

So now, as night follows day, there will be increasingly aggressive attempts to find ways of creating effective legal liability that will allow people who have been damaged online to find redress. Equally, there will be energetic campaigns to protect the freedom of the internet and its status as a location where regulation is minimal or non-existent and where people can say things that are unsayable anywhere else. Close legal regulation of the internet is something that is seen by many as the end of the web as an interesting source of information and a place of free interaction, not least because some authorities may have more sinister things in mind than just giving redress to the unfairly wronged.

I confess I find it difficult to imagine that the idea of the unregulated internet can survive, as there are many powerful people and organisations who will want to bring order into all this. And in truth it is hard to argue that someone should be allowed to use the web to destroy another’s reputation with false assertions, rumours and lies. And yet… free speech is the right that perhaps most particularly protects democracy and freedom, and the opportunity for people to bypass powerful publishing interests and make information available without excessive risk is at the heart of that. In addition, many people write fairly casually on the internet – as for example on Twitter – and don’t expect what they write innocently to become subject-matter for detailed legal interpretation.  And others may want to write reviews of good or services without fear of legal reprisal, or make a case freely where they feel they have been wronged.

I shall be interested to see whether some form of regulation can be found that does not compromise legitimate attempts to publish views and information. But if as I suspect such a framework is unavailable, I remain on the side of free speech. I guess.

Free and easy on Twitter? Think again!

November 25, 2009

Long time (or should that be long-suffering) readers of this blog will know that I have a Twitter account, which I use every so often to say where I am or what I am thinking or contemplating. I have to admit I spend very little time wondering whether someone might be upset at what I am writing. That may be a mistake: this year Twitter has come of age and has been the cause of at least two libel cases and a parliamentary apology.

One libel case has been taken by singer Courtney Love’s fashion designer, who felt aggrieved when Love said some not altogether nice things about her (as much as she could get into 140 characters) on Twitter. More bizarrely, a woman who complained on Twitter to her 32 or so ‘followers’ that her landlords were not concerned about the mold in her apartment in Illinois has been sued by the landlords, who are seeking $50,000 in damages. No kidding.

And as for the parliamentary apology, this was in Canada: one member of the Canadian House of Commons tweeted about another that he should ‘grow up, not out’ (the latter being a reference to his, er, alleged body shape), only to find that the outraged member was demanding an apology in parliament, which he got.

I think I’m going to have to go over my own twitterings again. Actually, I won’t, because as far as I know you can’t delete what you have written. Oh dear. If I have offended you, I didn’t mean to. Or maybe it wasn’t even me.


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