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Why is Sally Bercow trending? *innocent face*

…Because a backbiting and disingenuous woman has got her comeuppance.

High Court: Sally Bercow’s Lord McAlpine tweet was libel

A tweet published by Sally Bercow about Tory peer Lord McAlpine was libellous, the High Court has ruled.

The wife of Commons Speaker John Bercow tweeted two days after BBC Newsnight wrongly linked a “leading Conservative politician” to sex abuse claims.

Amid widespread speculation about his identity, she wrote: “Why is Lord McAlpine trending. *innocent face*.”

Her claim that this blatant innuendo was merely a factual enquiry was always an insult to the intelligence of anyone who heard it. But should there be an offence of libel at all?

58 comments to Why is Sally Bercow trending? *innocent face*

  • Laird

    Point of information: what does “trending” mean in this context?

  • Natalie Solent (Essex)

    That the name was a popular subject of conversation on Facetwit.

  • Natalie Solent (Essex)

    Twitface. Whatever. Not you, Laird, I hasten to add, rather one of these social media websites popular with the young folk.

  • Gareth

    I don’t see how that specific comment could have harmed McAlpine’s reputation. Although it could be viewed as malicious I can’t quite fathom how the comment could be false, unless McAlpine *wasn’t* trending on twitter.

  • Laird

    Ah, thanks. (You can tell that I’m not a twitterer.)

    Gareth’s observation seems reasonable to me. But then, as I understand it the British libel laws are much broader than the US’s (especially when it comes to public figures). Is truth not a defense there?

  • Natalie Solent (Essex)

    Gareth,

    Nudge, nudge, wink, wink.

    That’s how.

  • Natalie Solent (Essex)

    OK, I better give a more serious answer. Contrary to popular belief it is no defence against a claim of libel to say that the literal meaning of the words is true.

    The test, quite reasonably, is how the ordinary reader would understand it. To quote Media Law by Nicol & Robertson:

    The literal meaning is not conclusive: the ordinary reader knows all about irony. To say of John Smith, “His name is certainly not George Washington” is capable of being a statement defamatory of Smith: the ordinary reader knows that George Washington could never tell a lie, and is likely to infer that Smith is therefore untruthful.

    and again

    The courts accept that ordinary readers are not literal minded simpletons.

    Mrs Butter-wouldn’t-melt Bercow knew perfectly well why McAlpine’s name was trending: he was the subject of a Twitter mob baying for the blood of those they believed were paedophiles. I do have my doubts as to whether libel should exist at all, but I have no doubt that she knew what she was doing.

    Incidentally, though I’m no expert, I believe that the literal truth or otherwise of the words at issue is almost irrelevant in US defamation law, as it is in English law. Though of course it is generally harder to win a defamation action in the US than the UK because of the First Amendment.

  • RAB

    I have always found the last three letters of her name to be more than adequate to describe her. I await the Writ…

  • Alastair James

    But should there be an offence of libel at all?

    I think so. In a free market the reputation of a business is crucial. I don’t see any moral difference between widely circulating falsehoods about the hygiene of a restuarant and standing outside it physically stopping patrons entering. In a free society reputation matters. Widely circulating falsehoods, deliberately initiated and passed on by people, that someone is a paedophile will severely constrain their love life (and indeed many other aspectc of their life). I don’t see anything particular about violence that means it breaches the non-aggression principle in a way that libel doesn’t.

  • JohnW

    Hoist. Petard.

  • On the one hand I am delighted she’s got her comeuppance. On the other, “But for the grace of God…”. I seem to remember a well-known right-wing commentator saying something very similar at the time.

  • Lee Moore

    Alastair James : “I don’t see any moral difference between widely circulating falsehoods about the hygiene of a restuarant and standing outside it physically stopping patrons entering”

    I can.

    In the first place the falsehoods do not prevent customers using the restaurant. They can choose to believe your allegations about hygiene or not, as they please. Whereas if you physically block them, they can’t choose. That difference is, of itself, quite sufficient to justify a different legal approach. (Physical blocking = illegal, hygiene falsehoods = legal.)

    Second, you have to remember process. If you threaten to punish people for “falsehoods” you have to have a process – time consuming and expensive – for determining what is true and what is false. Much of life is neither true nor false but debatable.

    Third, even at the moral level – deliberately telling what you know to be a falsehood in an attempt to trick people into avoiding a restaurant is a morally bad thing to do. But is it the same as trying to physically prevent them from going in ? Is getting someone to behave as you wish by deceit the same as doing it by physical force. I don’t know. maybe sometimes it’s better, sometimes worse. But not the same.

  • Mr Ed

    There is, in England and Wales, an element of self-cancelling error In the law of defamation. On the one hand enormous damages may be available for those with a reputation that has been harmed and the money to seek it, On the other hand, the costs of going to the High Court are so high, and the risks so great, that the costs régime Is likely to deter all but the most determined litigants from launching proceedings, and conversely from defending proceedings.

    I cannot for the life of me see the justification for the law of defamation, However the related tort of malicious falsehood dealing with commercial matters may well have some application. E.g. If you falsely accused a business of not paying bills when due or doing harm, and losses and ensued to that business, that might be actionable.

    The truly depressing thought is that this defamer had 56,000 followers. Is that the number of people who need to be removed from public life In order for a transition to a free society to commence, along with other changes?

  • I agree with Lee Moore.

    Restaurants aside, my reputation is of value to me, both in business and social interactions. If my reputation is falsely damaged my ability to operate in the wider society is also damaged, and I am entitled to recompense.

    In other words, no one has a right to lie about me without facing consequences.

  • Mr Ed

    @ Cats. ‘The principle that a Claimant’s damages should not exceed his real losses is a bedrock of our law.’. Lord Jutice Sedley (ex-CPGB) in the English Court of Appeal in Cerberus Software Ltd v Rowley.

    Certainly here, there is, as a starting point, no right to recompense without proof of loss. I would regard ‘social’ loss as unactionable, unquantifiable and open to no limit of abuse.

    What sort of social life is it if your circle believe lies about you?

  • Mr Ed,

    And those outside my circle but with whom I would like to interact, but who have heard the lies?

    A lack of a libel law implies the right to lie and smear to the detriment of the target. There is not, even under free speech, a right to damage other people through the misuse of words.

  • Mr Ed

    Cats: my point is how English Common Law works is that without loss, no claim.

    Where does it end (or even start)? If someone cracks a good joke at my expense, making me a laughing stock and not taken seriously, would that that actionable?

    Is reputation owned, earnt, or learnt? I tend towards Rothbard (for once) on this. Everyone is responible for their own opinions, people are often bad, stupid or prejuiced (many vote Labour).

  • Lee Moore

    Mr Ed : “Everyone is responible for their own opinions, people are often bad, stupid or prejuiced (many vote Labour).”

    Prejuiced is one of the great typos of our time. As well as carrying the essential sense of three sheets to the wind, it implies that the condition is genetic rather than environmental. Sounds more like a Lib Dem voter to me.

  • Mr Ed,

    Of course people have to demonstrate loss – that is, show that the words were damaging. As to the extent of recompense, yep, that is for the courts to decide. However, that is discussing the details of how libel law should operate – a completely different issue to discussing whether the tort of libel/slander/defamation should exist at all.

    You seem to be arguing both positions.

  • Lee Moore

    Counting Cats : “A lack of a libel law implies the right to lie and smear to the detriment of the target. There is not, even under free speech, a right to damage other people through the misuse of words.”

    Er, no. Under free speech there’s a right to say what you like. Period.

    We can certainly argue about when and if certain restrictions on free speech might be justifiable, but even if we should agree, they’ll still be restrictions.

    If I should tell wicked and malicious falsehoods about you, if people believe me, you may be hurt by other people shunning you. But what liberty of yours has been infringed ? You never had a right to interact with people who choose not to interact with you, so if you are now shunned nobody has infringed your “right-to-interact” – you never had one. The value of your reputation is no more than the hope of benefit from future interactions with other people. (Any personal satisfaction you may get from knowing that you are a fine fellow can obvioulsy not be damaged by my libels.) But you have no right to insist on such social interactions. You may have been damaged, but no one has infringed your liberties by telling lies, or by believing them. (In the same way, your skill as a basket weaver may be a valuable asset. If I should invent a basket weaving machine that puts you out of business, that’s undoubtedly harmful to you, but tough titties.)

    There are lots of people who believe in God. They might choose to treat unbelievers worse than believers in their social interactions. If they do so, they are infringing no one’s liberty – so long as they restrict their interactions to voluntary ones, with whom and how they interact is their business. This is so despite the fact that there is no evidence whatever that there is a God and any rational court established to determine whether their shunning of unbelievers is reasonable or not would be bound to find against them. The fact that their beiefs are both irrational and harmful to unbelievers has precisely the square root of bugger all to do with whether the law would be justified in interfering with their choices.

    Even if I were to concede that telling lies about people needed to be justified (which I don’t) there are plenty of justifications that spring to mind. You might have stolen my girl and I may want revenge. You may be a horrid authoritarian politiian that I may wish to save the country from. You may be cruel to animals. You may have murdered your first wife, but got off in a travesty of justice. And so on.

    If you’re going to get the law involved, not only are you going to have to have an inevitably fallible, costly and time consuming process for determining the “truth” (which is at permanent risk of being captured by parisans); you are also going to have to apply the same ghastly process to determining whether deviations are justifiable or not, moving the whole process from the world of is, to the world of ought. Every step in this process is shod in hobnailed boots will which trample all over the freedom of speech.

    The safest plan is not to start down this road at all.

  • So, Lee,

    If you were to claim, with malice aforethought, taking a real world possibility as an example, that I molest little boys down at the park – thereby destroying my ability to make a living in my community, destroying my marriage, and destroying my relations with all my friends and family, I would have no comeback at you for the damage you have knowingly and deliberately caused?

    I don’t think so.

    You have aggressed against me and I am entitled to recompense.

    There is no right to destroy my life.

  • Mr Ed

    @ Cats. I am uncertain as to how far it would be permissible, in libertarian terms, in having a law on defamation. Hence I am discussing what, if anything, defamation law should cover, and it should be considered in the context of tort law, particularly Malicious Falsehood.

    I am not arguing over how much damages should be awarded, but whether they should be. In the instant case, the issue was liability, whether the words were libellous, damages was left to a later date. Had Gary Glitter been the Claimant, damages would be likely to be token.

    When you refer to ‘loss’, it appears to me that you may include what Scots law calls ‘solatium’, injury to feelings ‘itf’, rather than economic loss in the scope of damages. In UK discrimination law, itf is a well-delineated concept, look up ‘Vento bands’ for some information on that if you wish, nowadays up to £30,000.

    Re Lee’s point. What if a car dealer were to be engaged in hiring people to tour a competitor’s forecourts to falsely complain about a bad car, or allege that he is selling stolen cars, or unreliable cars. I see no reason why that shouldn’t be actionable.

    There is also the law on criminal libel, which might be a way to protect Cats in his scenario.

  • Mr Ed,

    Defamation law is fine in a free society.

    Personally, I am not a fan of the premise of self ownership, preferring the view that ownership of a human may not be vested in anyone.

    The non aggression/no harm principle is fully compatible with defamation law. The metaphor ‘your right to swing your fist stops at my nose’ applies to the spoken word as well. Your right to spin a pack of lies ends where it meets my interests – which brings us to Lee.

    Lee, Tell whatever lie you wish, but if I am damaged as a result I damn well expect you to make good.

    You spread a smear that my restaurant gave you salmonella, you have damaged my livelihood. It costs me time and money to correct the damage you have done, so you have, beyond all dispute, interfered with my enjoying my personal property as I feel fit (time is money, and the money is mine). You would owe me and I would demand that you pay your debt.

  • Natalie, my two cents on your question: my position is that there only should be laws which can be justly enforced in practice – i.e. for a law to exist, it is not enough that the action which the law prohibits is unjust in the moral sense, but the law should be practically enforceable without causing even greater moral injustice. For example, Cats is making a very strong moral case for an anti-defamation law, but nowhere is he making a practical case for the same (unless I’ve missed it). Myself, whilst absolutely agreeing with the moral case, I can easily make several arguments showing the impracticality of such a law. I could still be wrong there, but my point is that the details (and the devil within) lie in the practicality bit of this issue.

  • Cats, I now see that I should have addressed you directly – was thinking in general terms, but ended up addressing your points specifically…I blame not enough coffee:-O

  • Lee Moore

    Countig Cats : “You spread a smear that my restaurant gave you salmonella, you have damaged my livelihood. It costs me time and money to correct the damage you have done, so you have, beyond all dispute, interfered with my enjoying my personal property as I feel fit (time is money, and the money is mine). You would owe me and I would demand that you pay your debt.”

    But maybe I think you deserve to be damaged.

    And as I explained previously, I’m perfectly entitled to damage your livelihood as I please. What I’m not entitled to do is infringe your liberties. I may choose to damage your livelihood as a taxi driver say, by subsidising a new taxi competitor in your area. Not to make money for myself, but simply because I dislike you. I may tempt your wife away from you, destroying your marriage, by flaunting my wealth or the size of my appendage. There’s all sorts of ways I can damage you without infringing your liberties. Whether I’m morally justified in damaging you will depend on the circumstances and on individual opinion, but so long as I don’t infringe your liberties the law should not attempt to intervene.

    Clearly if I try to damage you by lying, I risk

    (a) that my own reputation will suffer and
    (b) that my defamation will not be believed

    so there is an element of “natural” policing of lies anyway. We should leave it at that.

  • I’m perfectly entitled to damage your livelihood as I please. What I’m not entitled to do is infringe your liberties.

    Um, lying about me is an infringement of my liberties. More to the point, it is an act of aggression. As I said, you have acted to prevent me from enjoyment of my property as I see fit.

    Competing in a free market by offering a better service is one thing, but by smearing and lying? No, sorry. That is not tolerable.

    I don’t know what your starting point is, but mine is the non aggression principle. Under that principle if I am defamed I have been aggressed upon, and I am entitled to respond and seek recompense.

  • Lee Moore

    My starting point is liberty. You say that lying about you is an infringement of your liberties. Expand. Which of your liberties is being infringed and in what way ?

    I don’t follow your act of aggression thing either. It sounds like one of those lefty madey-uppy things. Have I punched you on the nose ? No. Have I physically blocked you from going about your lawful occasions ? No. Since you’re going for bold type, let me use it too.

    You have no right to have a social interaction with any other person, unless they choose to indulge you. If they choose not to, they do not have to produce a justification. Their reason may be good, bad, ugly, misconceived or non existent. Nor do you have any right to prevent or regulate my voluntary interactions with other people, or their voluntary interactions with me. Which may include telling them porkies about you, or remarking on your poor cooking or your out of control nasal hair. If you don’t like it or if you feel that your interests are damaged, respond with speech or any other action that does not infringe someone else’s liberty (such as banning me from your restaurant.) But don’t respond with laws. For if you do, you are the one that has started the coercion, not me.

  • Mr Ed

    There is also the tort of deceit in Common Law, if you lie about Cats’ restaurant, you might induce others not to do business with him.

    If fail to see the harm to Lee’s property if he is induced to refrain from deceit, malicious falsehood or defamation. If he restrains himself and sticks to the truth, his property is safe. I am reminded of Lenin’s phrase ‘an infantile disorder’ by his comments.

    Lee is, it seems, unaware of the tort of inducing a breach of contract.

  • Sigh, the bold type was a typo.

    As to the non aggression principle, a lefty madey-uppy thing?

    Seriously?

    If you have never heard of it, then Google is your friend.

    Ok, you claim to start from liberty, then what is liberty? What is the principle under which you derive or define liberty? Is it self ownership? Is it objectivism? What do you mean by liberty? What is the basis of your philosophy of liberty? How do you decide the level of liberty which is appropriate? Are you a minarchist? An anarchist? An anarcho-capitalist? An out and out Randian? A Rothbardian? A liberal Hayekian/Friedmanite? A moralist or a consequentialist? They are all pretty much in favour of liberty, but that doesn’t stop ‘em spending hours arguing about the meaning of the word, what it entails, and how to get there.

  • but that doesn’t stop ‘em spending hours arguing about the meaning of the word, what it entails, and how to get there.

    Actually, it’s probably why they do argue. Just as we are going now.

  • Lee Moore

    Mr Ed : “Lee is, it seems, unaware of the tort of inducing a breach of contract”

    Lee is perfectly well aware of the tort of deceit, just as he is aware of the law of libel. He is arguing that they are bad laws. Lee is talking about what the law ought to be, not what it is.

    Counting Cats – The non-aggression principle, as described in Wikipedia :

    “Aggression, for the purposes of NAP, is defined as the initiation or threatening of violence against a person or legitimately-owned property of another”

    will usually involve an infringement of someone else’s liberty. To the extent that it does, I have no problem with it.

    But lying about you does not involve the initiation or threatening of violence against you or your property and consequently has nothing whatever to do with the principle of non-aggression as described. The lefty madey-uppy stuff is the conflation of violence and harm, by which a false equivalence is drawn between things that affect your liberties , eg physical violence– punching you on the nose, burning your house down – and things that harm you, but which have nothing to do with your liberty – alienating your wife’s affections or persuading people not to use your restaurant. Do you really want to associate yourself intellectually with the Guardianista types who claim that “hate speech is a form of violence” and suchlike totalitarian shit ?

  • Mr Ed

    When you see someone start referring to dictionary definitions, you do wonder if someone needs to get out more.

  • Sigh,

    Lee, you can persuade people not to use my restaurant all you like, provided you don’t lie about me and cause damage to my property – in this case, my reputation.

    Further, I repeat, if I need to spend time and money repairing that damage then that is money you have cost me, property you have acted to prevent me enjoying as I otherwise see fit, and I would require recompense.

    Your definition of liberty seems more like license. You also have a very narrow definition of aggression. For instance, are you aware of the arguments that voting is an act of violence?

    Anyway, note that so far I used the term aggression, not violence.

  • Lee Moore

    Evening CountingCats

    My definition of liberty is the bog standard negative liberty one. Absence of coercion. And spreading falsehoods about you involves no coercion of you. You are absolutely free to do, after my falsehoods, whatever you were free to do beforehand. The difference in your position lies in the possible change in other people’s attitude to you, caused by my interaction with them.

    Simply repeating that the effect of what I have done has put you to some expense does not help you demonstrate that I have infringed your liberty. (Strictly I have not “put you” to any expense – you may choose to bear the expense so as to restore your reputation.) You have not, so far, been able to explain why my damage to your reputation by telling lies about you is an infringement of your liberty. How is it different from my damaging your reputation by telling the truth about you, or spreading rumours about you, the truth or falsity of which is unclear ? In each case I merely flap my lips, I do not touch you or your property, I do not threaten to touch you or your property, nor do I incite others to touch you or your property. How can I possibly be infringing your liberty ?

    I am indeed aware of the arguments that voting is an act of violence, and depending on how you vote, it may very well be. It is an indirect route to violence, but if your vote empowers politicians to commit acts of violence and coercion then you are, to some extent, responsible for the coercion they exercise. But the argument that voting may be an act of violence does not rest on any theory that reputational damage is violence. It rests on the solid foundation that states coerce people – the doubt lies not in the reality of the coercion, but in the long and wispy chain of responsibility for it, and whether and to what extent it leads back to the voter.

    I note that you used the term aggression not violence. Which is why – as you invited me to – I went and plucked the definition offered by Wikipedia. Which seems to be exclusively about initiating or threatening to initiate violence. Since you seem to be suggesting that there’s some other meaning of aggression that encompasses things that are not initiations of violence or threats to do so, I think the ball is on your side of the net. If aggression does not require the intiiation of violence (or threats thereof) what is it, and why should liberals wish to pay any attention to it ?

  • Lee,

    Reputation is a measurable asset and a tradeable commodity. It is bought and sold in the market every day.

    When you purchase a business that part of the sale over and above the physical assets is reputation, or ‘goodwill’ if you prefer. That goodwill takes time and money to establish and can be a significant part of the value of the business.

    That this is real is demonstrated empirically every time a business is bought and sold.

    If you wish to compete with my by establishing a better reputation then fine, you have bone nothing to damage mine. If you seek to damage my reputation through lies and smears then you have damaged a defined financial asset no less than if you firebombed my premises.

    If you believe reputation has no value I suggest Gerald Ratner and his former shareholders may dispute that claim. Otherwise, try persuading IBM and Phillips that their good names offer no value in the market.

    If reputation has no value, than there would be no value in buying an established business, rather than setting one up from scratch.

  • And spreading falsehoods about you involves no coercion of you. You are absolutely free to do, after my falsehoods, whatever you were free to do beforehand.

    In terms of my freedom of action? No, how can you say this? You are ignoring the limitations imposed on me by your dishonesty and destruction of my wealth. You are choosing to ignore my property rights and the effects of your actions on them, or are you denying those rights exist?

  • Lee Moore

    I’m not quite sure where you got the idea that I think that reputation is not a valuable asset., especially as I’ve been happily prattling on about damaging it. (The extent to which the goodwill of a business is also property, rather than just an asset, depends on the details of the case. ) But we do not need to descend into the esoterica of intellectual property, knowhow and so on. We can conduct this argument with real assets.

    Let’s take land. You own some. I allege that there is a nasty subsidence risk. We will, for the present, leave the question of whether there really is a nasty subsidence risk in Prof Schrodinger’s box, with his cat.

    We can stipulate :

    1. that the value of your land has fallen, and
    2. that the reason that the value of your land has fallen is my allegation

    Now let us open the box. It is revealed that I was right. There is a subsidence problem on your land.

    Have I either infringed your liberty, committed an act of aggression against you (in the sense described by Wikipedia) or damaged your property ?

    Answer no, no and no. (Beginners may be fooled by the third no, but it is really quite straightforward. I may have damaged the value of your property by causing others to wish to offer less for it, but the property itself is completely unchanged (as we would expect since I have not laid a finger on it. The value of property is a subjective matter which lies in the eye of the beholder. Damaging the property itself would indeed be an infringement of property rights, and by extension liberty, but this cannot be achieved merely by chattering about it. )

    Now. How and why could the answer to these questions have been different if when we opened the box, it had been revealed that your land does not have a subsidence problem ?

    me : “And spreading falsehoods about you involves no coercion of you. You are absolutely free to do, after my falsehoods, whatever you were free to do beforehand.”

    CC : “In terms of my freedom of action? No, how can you say this? You are ignoring the limitations imposed on me by your dishonesty and destruction of my wealth. You are choosing to ignore my property rights and the effects of your actions on them, or are you denying those rights exist?”

    This is the traditional confusion between power (or opportunity) and freedom. The limitations on you consist simply in other people’s reduced willingness to deal with you, which is a matter of their liberty not yours. Take the simple case of where I wreck your reputation and business and marriage and life chances by revealing, truthfully, that you are a convicted child molester. After my revelation, you remain just as free to do whatever you were free to do before. All that has happened is that your opportunities have been reduced because people who were previously willing to deal with you – an ordinary exercise of their own freedom – now choose not to do so. If the change is wrought by my telling lies about you rather than the truth, the analysis is not changed by a single comma. You are still as free as you were before. All that is different is that I turn out to be a nastier person (and you have more opportunities to recover by pointing out the falsity of my allegations.) But that is by the by. In either case, I have not infringed your liberties, nor aggressed against you (In the Wiki sense.)

  • Ok, you seem to believe that you bear no responsibility for any damage done to me as a result of your lies and dishonesty. You have a narrow definition of property which I don’t endorse.

    Even if the physical asset is undamaged you have still damaged or destroyed my wealth. I can be wealthy without possessing any significant physical assets, or are you claiming that non physical assets have no value when determining property ownership?

    You have damaged the value of the land and therefore damaged my measurable wealth. My creditworthiness is lessened and I am constrained in my actions. If your action occurred at a time when I am in the process of selling that land the damage is clear. If I am selling to you, assuming that I am unaware that you are the source of the false claim, then you get the land at a lower price. I am out of pocket and you benefit financially. Are you going to deny I am damaged and that you have benefited? Is there any reasonable system where this action on your part is other than fraud?

    There is no scenario you have presented where my ability to enjoy my wealth as I see fit is not damaged, and my liberties therefore infringed.

    What you seem to be doing is defining an environment where dishonesty and fraud have no consequences.

    To go back to a previous scenario you provided – if you break up my marriage by being more attractive to my wife, than more power to your elbow. If you break up my marriage – thereby inflicting damage on me – by the use of smear and lies about me, then expect to provide recompense.

  • I’m not quite sure where you got the idea that I think that reputation is not a valuable asset.

    That you think that damage to that asset is not damage to my property, and therefore to me, is pretty much at the core of that.

    We can conduct this argument with real assets.

    No, we can’t.

    Intangible assets are no less property than real or physical assets, and I am not prepared to allow you to redefine ‘property’ so that you are right by definition.

  • Alastair James

    Can I change tack slightly here since I think it’s clear where Lee and CC stand. Two points. CC mentions fraud. Where do you stand on that Lee? If I contract with you to deliver some goods next Thursday, take your money now and when you come to take possession say “I can’t deliver. I never had the goods. I never intended to get them. I just lied.” do you think you have a right to enforce your contract or enforce return of your money? Or do you think you just have to chalk it up to caveat emptor, not deal with me again and if you are feeling civic minded publicise my unreliability? If the former then why? Under your very tight definition of non – aggression as the initiation of physical you would be the aggressor not me. I am merely a liar. Secondly, to any anarchists out there, how would this legitimate disagreement between reasonable people about whether or not libel is a crime be resolved in a world of competing police agencies?

  • Alastair James

    Apologies. Obviously the word “violence” should have appeared after the word “physical”.

  • Alastair,

    Libel isn’t a crime per se. It is a civil issue. However, should all issues be civil rather than dividing them into civil and criminal?

    BTW, competing security services – I contract with Southside Security Services for my security services, and you contract with some other outfit called Big Al’s Protection Racket (even the most professional are allowed to choose whimsical names), do not necessarily imply some type of competing legal system. The laws can be the same for all, regardless of enforcement.

    Besides, damages, if any, could be assessed by an adjudicator mutually acceptable to all parties, with a mechanism built in to prevent one party filibustering proceedings by rejecting every adjudicator presented.

  • Lee Moore

    Alastair – I’m not sure this is the time for a de novo exploration of libertarian mysteries such as whether the state should enforce contracts. Let us allow, for the purposes of argument, that it should, and that its enforcement should extend to the enforcement of contractual promises – ie agreements for future rather than immediate delivery.

    How does fraud fit in with this, and can it be distinguished from other forms of lying ?

    If I sell you what I claim is a can of baked beans, in exchange for 50p, I am taking your property (50p.) Sure I am taking it with your agreement – but your agreement is conditional on the contents of the can being baked beans. There is no practical way that you can check the contents without opening the can, which understandably I am not willing for you to do in advance of agreeing the deal.

    So, you open the can and it emerges that I was lying and the can contains ground up slugs. I am quite comfortable with you being able to use the power of the state to get your 50p back. Indeed , depending on the precise circumstances, I am quite comfortable with the idea that the state should punish me for stealing 50p from you. So lying in these circumstances may indeed be something that the state can properly police, for in these circumstances it amounts to theft, or at least a breach of contract. I have taken property without your consent, and so I have initiated the coercion. The state is only retaliating.

    But not all lies involve theft. And my lies about CountingCats are among them.
    My lies can certainly damage his reputation, and his reputation may well be something valuable that he can turn to account. (Like knowhow and experience it is not really property, but we don’t need to annoy him unnecessarily by getting into a theological discussion about the meaning of property.) The important thing about his reputation, in a discussion about liberty, is that while he may be the fellow who can turn it to account, it consists in other people’s opinions about him, which they are at liberty to change at any time for any reason. He has no right to other people’s good opinion. So if I harm him by changing other people’s opinions about him, whether honestly or maliciously, the harm involves no infringement of his liberties. If A voluntarily interacts with B, and that interaction hurts C’s interests, C’s liberty is not threatened. Only his opportunities.

    (Though in certain special circumstances it may infringe other people’s liberties – eg if I (=A) climb into Mrs CountingCats (=B) bed at night claiming to be CountingCats (=C), and she sleepily obliges me believing me to be CountingCats, I (=A) may well have infringed her (=B) liberties (ie the A-B interaction was not voluntary but relied on my deceit.) But I haven’t infringed CountingCats (=C) liberty. Though I have undoubtedly caused CountingCats (=C) harm. But harm is not the same thing as an infringement of liberty.)

    A free society does not forbid its members from inflicting harm on each other. It forbids its members from infringing each other liberties. These are very different concepts – the latter is a small subset of the former. A state empowered to forbid its members from doing each other harm is a very much larger and nastier beast than one empowered merely to safeguard liberties.

  • Midwesterner

    Secondly, to any anarchists out there, how would this legitimate disagreement between reasonable people about whether or not libel is a crime be resolved in a world of competing police agencies?

    In my preferred form of civil(ized) anarchy, people would join associations and interact under the terms of those associations. Failing to join any organization would leave someone without any protection from anyone for anything so joining at least one (or forming a new one) would be imperative. These organizations would reach less detailed compacts with each other. These organizations would cover two categories of interaction, between contracting members, either within their own organization or through their own association’s less detailed compact with an aggressor’s association or, by aggressors not restrained by any contractually restrained relationship. For those uncontracted relationships, associations can have terms of mutual defense among members.

    The associations would interact much as governments would except that one, membership in any particular one is optional – if any particular one goes far enough off of the rails, you can leave it and join a different one (or more). Two, associations would not be tied to any territory.

    It may help to view (using the US case) a state citizenship as a contractual association and the US Constitution as a compact between many associations. The principle differences being that states are tied to territory and the US Constitution is a multistate contract. It may have been more durable if each state had an individual compact with each other state and could have unilaterally withdrawn recognition of some of the other states. It was not intended by the founding document to ever be “one nation, indivisible”.

    So to answer your question, I personally would look at the balance of the rules before joining any particular association and slander and libel would be part of what I looked at. If somebody from a different association slandered or libeled me, my recourse would be reduced to the terms between our associations.

    Associations would wax and wane according to their usefulness and attractiveness to the most productive members. Right now, a “California” association without a claim to territory would be waning fast. This will also address Alisa’s concern about good intentions based on the moral high ground that are, none the less, unenforceable for practical reasons.

  • Laird

    “A free society does not forbid its members from inflicting harm on each other. It forbids its members from infringing each other liberties.”

    A free society does neither, as it cannot (enforceably) “forbid” anything without becoming a tyranny. What it can do, and does, is provide a means (whether through state courts or voluntary mutual protection associations) for the injured party to receive recompense from the party causing the injury. And that recompense can be for damage to physical property or for damage to intangible assets such as one’s reputation. It shouldn’t matter much whether that damage was accidental or intentional, merely that it occurred and was not otherwise justified (such as a truthful assertion about one’s past actions). Unjustified damage to one’s assets should be compensable in a free society; it is only the measure of those damages which is subject to dispute.

    As an aside, Mid, I would note that your system of mutual protection assciations sounds very much like non-territorial sovereignty. One really has no choice but to join one of them, and the only real difference is that in your system changing one’s allegiance is simplified by eliminating the requirement of a physical change of domicile. But you’re still bound to a sovereign, albeit a self-selected one. Something of an improvement over the current system, perhaps, but not a huge one and not without inherent problems of its own.

    A second aside, to Cats: Re your question “should all issues be civil rather than dividing them into civil and criminal?”, I would answer yes. However, we’ve had this discussion before, so I won’t repeat it here.

  • Mr Ed

    If all issues were civil, assuming penal injunctions were classed as criminal, what would prevent a very wealthy man from buning my house down ad nauseam and then smirking as he compensates me or my loss? That is where the criminal law becomes necessary.

  • Lee,

    You acknowledge that while firebombing my physical premises not acceptable, firebombing my reputation, while possibly a social faux pas, is acceptable because my liberties are not infringed.

    In what way is destroying my premises a greater infringement on my liberties than destroying my reputation? In both cases my livelihood has been destroyed, and I see no difference in their practical affect on me.

    You claim that after destroying my intangible asset “You are absolutely free to do, after my falsehoods, whatever you were free to do beforehand”. In what way, by this argument, am I less free if you instead destroy my tangible assets? Can you tell me where the difference lies?

  • Lee Moore

    The distinction is, of course, is that while I can firebomb your physical premises, I cannot firebomb your reputation. Your use of “firebomb” in that context is merely metaphorical.

    When I firebomb your factory, I destroy or damage your land, your buildings, your machines, your stock. Since liberty includes the liberty to enjoy and exploit your property as you please (subject only to your respecting the equal liberty of others) it is clear that I have infringed your liberty by my firebombing.

    But when it comes to your reputation, what does this consist of ? Not land or buildings, machines or stock. It is composed of two items which, combined, may allow you to extract value from it. First, it includes your liberty to enter into voluntary associations with other people. And whatever I say about you will not affect this liberty. When I have done my worst, you still have this liberty, entirely unchanged. Second it includes what A thinks about you, what B thinks about you, what C thinks about you, and so on. None of these opinions are capable of being firebombed. Because they are opinions. More importantly, these opinions do not belong to you. Insofar as they belong to anyone, they belong to A, B, C etc. You have no rights in these opinions. They are externalities that happen, at present, to be beneficial to you. You remain at liberty to suck what value you can from these opinions as they persist or change from time to time, but if they change to your disadvantage (for whatever reason) that does not represent any infringement of your liberty.

    You are simply in the position of a man who owns shares in Eastman Kodak when digital cameras are invented. The inventor of digital cameras has certainly harmed you, but he has not infringed your liberties. He has just exercised his own. It doesn’t matter whether he invented the digital camera to make money for himself, or simply to spite you. The harm he has done you isn’t an infringement of your liberty. You can still do what you like with your Eastman Kodak shares – you’ll just find that other people won’t offer so much for them as they would have done before.

    And when what I say changes A, B and C’s opinion of you, and you call that damage to your reputation, and say you have been hurt, I have just been exercising my liberty to flap my lips, while A,B and C have just been exercising their liberty to change their opinions. No firebombs are involved. If you don’t like it, you are at perfect liberty to flap back. Unlike the smoking ruins of your factory, my lip flapping leaves you in full possession of what you possessed before – the liberty to exploit other people’s opinions of you. But you never owned those opinions, so if they change to your disadvantage that’s just other people exercising their own liberties.

  • Mr Ed

    Lee, your distinction is irrelevant. No one ever suggested that physical property is damaged by words.

    Are you aware of ‘goodwill’? With all your flapping, you do not address the point of the damage to goodwill. You seem to avoid it by stressing what has not happened, rather than what has in the scenario, and you sound as if you have read too much Rothbard without any critical analysis.

  • Lee Moore

    Morning Mr Ed

    I rather think it’s you who is missing the relevant distinction. The value of physical property can be damaged by words, as my subsidence example showed. But the property itself cannot be damaged by words. Likewise with incorporeal property, such as the Eastman Kodak shares.

    But you need to consider what the nature of the “property” is when it comes to things like reputation and goodwill. The goodwill of a business is a complicated mish mash of things, including reputation in the eyes of customers, potential customers, employees, suppliers etc, but also things like knowhow and business processes, customer lists, employee contracts, supplier contracts and so on. American lawyers and accountants spent many man-millenia a few years back trying to carve tax depreciable items from the general category of goodwill before the fun was spoiled with a law change. So goodwill is a poor asset to use to illustrate the point I am making – it includes a multitude of sins, and each may need a different analysis.

    But “reputation” is a simpler creature. You and CountingCats are studiously avoiding addressing what reputation actually is. It is no more than other people’s opinion of you, and you cannot have a property interest in that. (Unless the state goes out of its way to create an artificial one for you.) Your reputation belongs to the people with the opinions. As I say, you can certainly benefit from it, just as you can benefit from customers desire to Buy British or from a sunny summer than ripens your crops nicely. The reason that, unlike your factory or your Eastman Kodak shares, your reputation itself (rather than merely the value of it to you) can be damaged by mere words is that it consists of nothing but opinion. The protection of a “property” interest in reputation simply means the creation, by the state, of a restriction on the liberty to speak freely.

  • RAB

    Gawd! Is this one still trundling along?

    The point of this post is about Libel, defamation and slander. And the crux of those Torts is the telling of lies about a person or business, usually with malicious intent, that by so doing you damage materially the business and reputation of the Plaintiff.

    Lee, it’s this simple… To take the restaurant example… If you say to someone, or put in print, don’t eat at such and such a restaurant because they serve Cockroach soup and have been shut down by the Health inspectors 5 times, and this is a lie, and damage has been done to the reputation and earnings of said restaurant, then you can be sued for your lies and malicious intent. However, if you say or print… Don’t eat there because I think the food is crap, then you shouldn’t be sued, because you are stating an opinion. Everybody else who has ate there may think it a first class establishment and you are wrong, but you are entitled to your opinion. There is a difference between malicious lies and honest held opinion. Get it now?

    As to the Kodak thing, well that’s a non sequitur. No lies have been told, no malicious damage intended, just technological innovation succeeding older technology. Has damage been done to Kodak? Sure, but more fool them for not moving with the times. Just like the Buggy Whip manufacturers of yore when automobiles turned up, either move with the times or go bust, or move to a niche market like BDSM accessories ;-) But there is no recompense in Law, nor should there be.

    Oh and Cats, glad you have been enjoying the semantic duelling here, but if you could spare 5 minutes to pop into home, and address the points raised in my “Welcome to Brigadoon” post, it would be appreciated. We are dead in the water over there.

  • Andrew

    Get it now?

    Lee, I believe, fully “gets it” – he just doesn’t agree with it.

    Here’s a piece by Walter Block clearly explaining the anti-libel position:

    http://www.lewrockwell.com/block/block124.html

  • Lee Moore

    Thanks for that, Andrew, though you could have saved me a lot of effort by finding that earlier. I had to work it all out for myself ! Contrary to someone’s allegation higher up that I was reading too much Rothbard, your link contains the first of his sentences that I have ever read.

    I should say that as a practical matter I don’t have too much of a problem with laws prohibiting malicious falsehoods intended to cause people harm – the world’s stock of illiberal laws contains many better targets. Including the extension into regulating cruel and hurtful speech (whether truthful or not), discriminatory or “hate” speech, reckless rather than malicious falsehoods, truthful reports of other people’s reckless or false statements,and of course, mere opinion. Once you have a process for regulating malicious falsehoods, the danger is that it will be used for regulating speech that is neither truly malicious, nor clearly false – and that puts a chiller on all sorts of speech. And once you have conceded the point of speech control to rectify “harm” you’re on a slippery slope, that leads fairly directly to the Guardian comment pages.

    But as a political matter it’s a pretty hard sell to defend the line at “free speech means free speech” rather than “free speech means free speech except lies” – after all this is Samizdata not the Daily Mail, and I’ve hardly won in a landslide.

  • Julie near Chicago

    Here is another aspect of libel: When you knowingly tell a lie, you are knowingly committing fraud against the person to whom you’re telling the lie.

    Wikipedia or no, the use of the word “aggression” in the NAP is, I think, supposed to include not just the use of unjustified force but also the use of threats or deceit to subvert the basis upon which the victim exercises self-determination. These, plus physical aggression, constitute coercion. Often, writers add in so many words that threats (which are a step in extortion, at least if a property interest is at issue) and deceit are included in the NAP or anti-coercion issue.

    So, if you lie to someone about X, you have attempted to defraud that person, regardless of whether X is a “person place thing feeling or idea.”

    Thus libel and defamation of character are in fact acts of fraud against the persons who hear the libel. Thus anti-libel laws (whether you agree with them or not) are at least arguably part of the legal framework that is supposed to protect people against aggression and coercion, including fraud.

    By the way–I thought that in the U.S., truth most certainly IS a defense against charges of libel, as opposed to the U.K., where presumably it is not.

    Sources:

    Libel:
    http://research.lawyers.com/glossary/libel.html

    Defamation:
    http://research.lawyers.com/glossary/defamation.html

    Slander — slightly different from libel:
    http://research.lawyers.com/glossary/slander.html

  • RAB

    Well Julie, having told the truth was certainly the defence against a charge of Libel when I graduated Law, but that was the early 70′s. God knows how they have twisted it by now.

    By the way my old business partner and I were libeled by Private Eye, of all people, back in the 80′s. They said that we were Arms Dealers (running guns to the Contras). It’s a long and hilarious story I must tell you all sometime, but there was not a word of truth in it. Well it was against our religion (Discordian order of Druids, membership 2) to sue Private Eye. Heaven forfend! how common and vulgar, everyone does it. Besides it didn’t hurt our business or reputation at all, in fact in enhanced it. Funny old world eh?

  • Julie near Chicago

    LOL! What, exactly, was “Private Eye”? Either a detective agency, or a tabloid magazine like Hollywood Confidential. I’ll guess the latter. In which case, all that free publicity could not but be good for you!

    Of course, if they knew you were a card-carrying Druid, they’d have been a little more careful I should think. You boys don’t have the best reputation in the way of respecting persons, y’know. :)

    –Over here, there seems to be general agreement that in the UK “the truth is no defence”–not as snarkiness, but as a matter of blunt fact. That’s really not true?

  • Lee Moore

    Private Eye was (still is I think) a satirical magazine, produced on a shoestring, which was famous for funny, biting satirical comment, and innuendo. Unlike what passes for satire now, it didn’t restrict its attacks to the usual targets on the right, it was happy to attack anybody. It got sued for libel about once a month and nearly went under a few times. Far more up market intellectually than the National Enquirer, but it broke – by innuendo – a few scandals that the mainstream press wouldn’t cover, for fear of the libel laws. Some sexual, some not. It used to invent its own code as a protection against libel suits – for example if it wished to allege that X was engaged in illicit nookie with Y, it would refer to their Ugandan relations. Their stories were often false, though recklessly rather than deliberately, and often malicious (they would happily re-innuendo someone who had sued them previously.) It was famous for its covers, which were often very good. (I still chuckle at the “Verwoerd – A Nation Mourns” one.)

    By the by, Julie is quite right that when A lies to B about C, the person who has a claim that A has abused his liberties is B, not C. The strength of the claim is of variable merit, depending on the circumstances.