This keeps coming up in other threads even if it is barely relevant to the topic at hand.
In Ireland, if you make an assertion about someone, you have to back it up.
You can’t infringe on someone’s Constitutional right to a good name, and then point the finger at them and say ‘prove it’.
You attack someone’s reputation, then you have to prove that what you say is true. (Obviously the reality is a little more nuanced, but essentially that is the position normally).
The alternative is that free speech trumps the right to a good name, and either you abolish defamation altogether (a position that I have seen adopted on this board), or you move the onus onto the other person to disprove the claims against them.
Obviously, I take the first view. You make a claim, you back it up, otherwise people get damaged by rumours unfairly.
Free speech is a pretty big deal in the US and the courts are reluctant to restrict it.
First you have issues of opinion. If I say, “I think Laudenum is a jerk,” what do you expect me to prove? That what I think is what I think? I’m free to hold that opinion (I don’t, just an example) and say so if I want to even if it hurts your reputation. You can say you think I am a jerk right back.
Now, if I say, “Laudenum exposed himself to a classroom full of children” then that is a statement of fact. If untrue you have quite a good case against me but it is up to you to bring it. For my part, if I remember this correctly, truth is a positive defense for me. So, if I can prove you did do that then you cannot bust me for damaging your reputation. More, if I had good reason to believe it was true I am safe even if it wasn’t true (absence of malice). If I lied and made that up then yeah…I’ll be the one on the hook.
The problem with the British (and I assume Irish) libel laws is that they become a cudgel for the rich and famous to protect themselves from criticism. It isn’t just a matter of who should prove anything, but more importantly the degree of certainty that a person needs.
The more public a figure is under US law, the greater leeway there is regarding the standard of care a person must take about publishing stories about them. And that makes sense to me. There’s little public interest in whether that guy who works in the corner store cheats on his taxes or not, but a factually incorrect story about him being a tax cheat will cause him great distress. A newspaper should be damned certain they have their facts straight if they are publishing that, and, in all likelihood, will have to time to fact check the story. There’s much greater public interest in whether Mitt Romney, for example, is a tax cheat, and the story is likely to break in a much faster fashion making fact checking more difficult.
The British libel laws can act as a chilling factor to investigative journalism, and I don’t think that is a good thing.
Who is bringing the case? I think that person is the one with a responsibility to make an argument, and the presumption is against them until they do.
In the case of libel, the person bringing the case is the person who was defamed. That is, the person who was doing the defaming had to make their case too, but they were making it to their audience, who did or did not believe the libel. When the defamed person protests, it is then their turn to defame the original defamer - they’re calling him a liar. It is thus now their job to make their case and prove their point, before the state believes them and rewards damages.
Oh, and as a possibly irrelevent side note, over here in the USA we don’t have a constitutional right to a good name.
The problem with this is that proving a negative is difficult. If I say that “begbert2 exposed himself to a classroom full of children” and you feel the need to vindicate your good name and reputation yourself by suing me, how are you going to disprove the claim? I haven’t said when or where you did this, or how I know about it, or who the witnesses were, or indeed anything at all that could help you to nail the lie – and now that you’re suing me, I’m not about to help you by supplying these details. So how are you even going to start proving that you didn’t ever do this?
What you have to prove, at least if you sue me in Ireland, is (a) that I said this about you, and (b) that it is something which will tend to damage your reputation. Once you prove this, it’s up to me to defend myself and, if I choose to do so by claiming that the allegation is true, I have to prove its truth. I’m the one who put truth in issue by raising it as a defence; the onus to produce the evidence which supports my defence is on me.
Apart from any question of justice to the defamed, the “onus of proof on the plaintiff” regime that you suggest seems likely to degrade public discourse. It incentivises vague, unspecific, untestable allegations, which can’t be disproven, over specific, concrete testable accusations. Legally, I would be much safer to drop dark hints and make vague untestable claims about you than I would be if I came out and said what I knew about you; what you did when, and where, and with whom. That’s not a legal regime which is likely to foster the kind of free speech that a healthy republic needs.
I think differences in emphasis arise because the US constitution recognises a right to free speech, but not a right to a good name, whereas the Irish constitution recognises both. There is obviously potential for a tension between these two rights which must be constitutionally reconciled. In the US, by contrast, the focus of the constution is on freedom of speech, without any balancing focus on the right to reputation.
Hence, for instance, the US position that if you defame a public figure untruthfully, you are not liable unless you had “actual malice” - i.e. you knew what you said was false, or didn’t care whether it was true or false. In Ireland, the state’s duty to provide legal vindication for the plaintiff’s right to his good name means that you have accept responsibility for your untruthful statements which sully his name.
Hmm, you have a point - rather a good point. I see no legal flaw in separating the accusation of slander/libel from the bringing of truth as a defense, and so see no fundamental problem with making the slanderee’s job just to prove that the disparaging statements were made, and then requiring the defendant to prove truth if they choose to use it as a defense.
(IANAL)
Whereas the Irish way seems poised to eliminate public discourse, and criminalizes vague, untestable allegations.
Regarding the former, the republican party would find themselves completely unable to campaign, if this were enforced - and the democratic party would find themselves on very shaky footing as well. After all, saying “Senator Elufant supports tax cuts, and tax cuts are bad for the economy” is equivalent to saying “Senator Elufant wants to do bad things to the economy” - an unprovable slanderous allegation. This obviously depends on how rigidly the laws get enforced, which is probably how Ireland gets along, but that fact also hands the upper hand to the party more willing to be frivolous with their lawsuits.
And regarding vague, untestable claims - suppose I were to say, “UDS is a jerk.” That is certainly a slanderous statement - but how do I prove it? There’s not a standardly accepted hardline definition of what jerkish behavior is - two people standing side by side can have different opinions about the jerkiness of the same action. I mean, to further specify the example, suppose you hit me in the face with a cream pie, bashing my nose with the tin and messing me up. This annoys me greatly - but everyone else on the planet thinks you’re hilarious. So I cannot voice my honest opinion of you because nobody else would agree with me. Instead I must refrain from making any statement you might possibly see as slanderous that isn’t a point of hard fact which I can back up with an unambiguous video - which might lead me to stop talking about you at all just in case. (Again depending on how strictly and frequently this rule is enforced.)
So yeah - while I have been convinced that there is a legal foundation for making the slanderer put up or wish he’d shut up, I’m not convinced that the approach is without its downsides.
Burden of proofs in libel shift under a lot of circumstances and vary by jurisdiction. Generally speaking, in California, if you impugn someone’s ability to do their job, you must bear the burden of proof on proving such a charge. It is called libel per se
I always thought the definition of libel per se was the category of libelous statements where one did not have to prove financial damage to prevail. This includes allegations of crappiness at your job and, IIRC, allegations of the person having an STD.
I’m generally for the contention that you have to prove things you are asserting. However, I’m also for a forced apology and retraction if anyone is actually proven to have uttered something false. All libel laws I know of does not force the liar to retract his statement, which I think would be a much better deterrant than winning a court case nobody ever hears about, or paying a fine that you can afford.
1 There’s no question of criminalization. We’re talking civil liability only.
2 “Senator Elufant supports tax cuts, and tax cuts are bad for the economy” is not defamatory in Ireland – or, I assume, in the US. Somebody is not defamed merely by attributing to him an opinion which others may not share. In general, criticism of somebody’s views or opinions is not defamatory. Attributing an opinion to him that he does not hold could be defamatory, but it would have to be the kind of opinion that would bring him into general hatred, ridicule and contempt, e.g. “Senator Elufant advocates the systematic genocide of Jews to advance racial purity”.
3 “UDS is a jerk” is not defamatory in Ireland. Mere abuse is distinguished from defamation. If I call you a motherfucker, that’s not actionable, because nobody will understand it literally. If I say that you committed incest with your mother, that is potentially actionable – but to succeed you will need to prove that people took the allegation seriously, and thought less of you as a result.