communist, moi? that’s a new one on me!

I find I come down on the liberal capitalist side myself, upholding institutions, pushing for reform, you know and all that…so…money, it’s a universally transferable tool for measuring social capital, which if artificially unbalanced by economic practices (such as current taxation models) creates unfair restrictions to our univeral and inalienable rights (such as access to the courts).

It seems you’d be happier breaking what works and trying to fix what isn’t broken - at least it’ll provide grounds for you to whinge on eternally at your inability to solve these problems.

If the media isn’t smart enough to present something as opinion when they want to report an issue but don’t have the facts to avoid a libel suit then they don’t deserve to be trading. There are (as far as I’m aware) plenty of provisions to allow true investigative and independent journalism to not fall foul of libel law, only to the degree that it doesn’t also protect those presenting opinions in a manner that is intended to push a pre-arrange viewpoint rather than report the issue at hand. But quite frankly your assertion that “there are no absolutes” is entirely laughable.

Now you may well argue that regardless those with the money can then still sue fair minded and independent investigative journalist and the paper will just bend over and settle, and this is where I’ve said that of course there is potential inequality there.

“but in England the defendant is presumed to be lying unless he can prove otherwise. He is guilty until proven innocent (by the way, I asked you a simple yes/no question earlier that you failed to give a yes/no answer to, so your position remains contradictory).”

In what way are they presumed guilty? The court hears a case where both sides put forward their case and at the end the court decides whether or not the person bringing the case has won or not, and by winning has made the defendant guilty. I’d love to hear how I’m wrong here, do enlighten me.

“But none of this bickering over this aspect of it at all has yet answered my question why the media should feel they have a right to accuse someone or some organisation of something without absolute proof of their claims?”

Because absolute is an impossibly high standard of proof. As thomas points out in comment 21, there are no absolutes. Once you move away from hypothetical allegations against hypothetical alleged paedophiles, what you have in the real world is a genuine impediment against freedom of speech and a media that is far more timid about exposing abuses of power than in other countries. If fact, it’s worse than that because London has become the libel capital of the world, meaning that the media elsewhere can also be cowed.

http://tinyurl.com/4ja87g

Good defamation laws should strike a balance between protecting people against defamatory allegations and preserving freedom of speech. This is what courts elsewhere have to do, but in England freedom of speech is not a consideration for juries at all.

http://medialibel.org/libel/other.html

Defamation law is more complex than most people tend to imagine and this debate hasn’t clarified things much. For that I am as guilty as anyone, but you seem to labour under the delusion that if the burden of proving truth were removed from the defendant than the plaintiff would have to prove beyond all doubt that the allegations were false. This simply is not how the law works elsewhere because the ultimate objective of defamation cases is not about establishing the truthfulness or otherwise of the allegations, truth is simply the main defence that the defendant is able to use. Most countries’ courts don’t make prior assumptions one way or the other about the truthfulness of the allegations, but in England the defendant is presumed to be lying unless he can prove otherwise. He is guilty until proven innocent (by the way, I asked you a simple yes/no question earlier that you failed to give a yes/no answer to, so your position remains contradictory).

All this recourse to the hypothetical alleged paedophiles reminds me of debates about torture that make recourse to hypothetical ticking time bomb scenarios. It obscures the debate more than it illuminates it. So rather than talk of Joe Bloggs, the imaginary alleged paedophile, can people start bringing up specific actual examples from Scotland (which doen’t share the same law as England) or elsewhere where the implied lack of protection against defamation has led to gross injustices?

If people are unwilling to do this, then let’s talk about Sarah Bloggs, Joe’s hypothetical niece who was hypothetically abused by him for years. She made allegations against her hypothetical uncle through a hypothetical newspaper, but the subsequent police investigation collapsed, for whatever reason. He subsequently hypothetically sued her and won. A bit hypothetically harsh, don’t you think?

Spare me the lecture about liberty. It is patronising and adds nothing to the discussion.

I am also not suggesting that the civil and criminal courts operate in the same area of law, merely pointing out that child abuse is a criminal matter.

BUT, if joe bloggs was able to go and fight his case somehow then the system that exists, expense aside, is the right way to go about dealing with it…and in fact if the system were feared and respected a little more then perhaps spurious headline claims by the tabloids would be a thing of the past, I can but dream.

But none of this bickering over this aspect of it at all has yet answered my question why the media should feel they have a right to accuse someone or some organisation of something without absolute proof of their claims?

Don’t be daft.

You cannot realistically argue for the Communist Manifesto on the back of silly libel laws. It is perfectly OK to argue, as I have done, that the libel laws stink without having to wait for some perfect society in some mythical future, before you right a wrong in your jurisprudence, especially as what you predict as an outcome seems to be little more than a mere happenstance.

It is frankly not the cases that come to court that concern me, it is the lawyerly use of what is frankly a crude weapon on the body politic. To be clear, the threat of legal action is usually enough to get folk to back off.

If you took offense to this post and engaged a lawyer, you can rest assured that you’d be getting apologies from me until the cows came home. But, sadly, I’m not worth suing.

Your criticism of libel law is not based on whether the law is any good or not, but the fact that access to the institutions of the country is determined by a distinction of having and not having enough material rights over and above the simple legal right.

On that basis, we should keep the court system as it is and focus our attention of creating proper distributions of wealth (rather than squabbling over different measures of unfairness in how we redistribute other peoples wealth).

Maybe this is an example of how bad use of language corrupts the intended meanings, because we do have equality in law - what we don’t have is equality in the economy.

We have a ridiculous power structure built into British libel law. The rich win, the poor cannot compete. It is a complete utter disgrace for a so called democracy.

Sure, rich folk are subject to callumny, and have reputations to protect. But the legal industry is quite obviously biased in favour of rich litigants, particularily in respect to libel. It is, frankly only a game the very very rich can afford to play. and gives them protection far beyond what any honest commentator here could expect. Thus, it is unfair, and unreasonable.

I’d be more impressed with Lee Griffins’arguement if it was based on some sort of equality under law. It is, unfortunately, based on disequality under law. The disequality of money.

“I don’t know, you tell me. I wouldn’t have thought very many though. If 28 days isn’t enough, then 42 days aren’t likely to be. In fact, if I had to guess I would say the answer to your question is zero. Just a guess, but in any case it’s a pretty spurious analogy; we’re not talking about incarceration here, no matter how serious the accusations.”

So because it’s not incarceration it’s ok? I am afraid I simply don’t agree with that way of thinking, not when lives can be drastically affected through the power of written press. Either way acting in a manner that negatively effects innocent people or people that didn’t deserve to be libelled just to ensure everyone else is caught is an authoritarian and selfish way of thinking.

“If there is not enough evidence to convict, this in itself should be enough to prove the initial accusations were libelous. So even here your and thomas’s argument just doesn’t stand up.”

But if we followed your way of thinking then it wouldn’t be up to the papers to prove what they’re saying, it would be down to the person accused of being a paedophile to prove they aren’t. How do they do that exactly? Give themselves an electronic tag so that they can be monitored 24 hours a day as to their whereabouts? Except of course then we’d all need to be tagged so we know for sure he wasn’t definitely with a child…but then also perhaps he’s need some kind of implant or device he can’t tamper with to film what he’s doing to prove 100% even if he was with a child he wasn’t abusing them.

Do you not realise how ridiculous this situation obviously is, and why the only way libel can work is the way it does currently. You *may* have arguments over who should pay what portion of the costs, but I still believe that if you are worried about getting sued, don’t say stuff you can’t back up in a court.

you also show a shallow understanding of liberty: there are no absolutes - even ‘liberty’ cannot be allowed to degenerate into dogma.

Freedom is not unconstrained, as it operates with the parameters of legitimacy, validity etc which protect it and you from all the abusers, criminals and simply misguided lunatics of the world.

Liberty is the law.

You should be grateful to all the generations of people who gave it to us as our inheritance.

you are indulging in illogic to say that not having enough evidence to prove guilt is enough to assume false charges have been made (falsely charged or badly investigated, perhaps, but those are other, technical, matters).

You also pit yourself against the whole infrastructure of the legal establishment and all the legal institutions to suggest that criminal and civil courts operate in the same area of law.

Turning your position around I would say it underlines the significance and standing of British justice to see judgements made in the British courts as carrying weight around the globe, which is exactly why the Polanskis of the world use and support the British legal system.

Not only is justice more likely to be done here (as opposed to just being seen to be done), it is generally far procured far swifter that in many alternative jurisdictions.

And I say that in full consciousness that many Guildford Fours would still be rotting, forgotten and buried in other, more highly politicised legal bureaucracies.

You may not be very liberal when it comes to freedom of speech, Lee, but you’re certainly liberal when it comes to logic. You’re position is totally unclear to me. Simple question, do you believe that a defendant in a court of law should be guilty until proven innocent?

[I can’t help but draw parallels between your wishes to cast a wide enough net that innocent people get caught up and “have to deal with it” and plans to extend detention without charge to 42 days. After all, how many Muslim terrorists have got away with escaping jail because we’ve not detained them for longer than 28 days?]

I don’t know, you tell me. I wouldn’t have thought very many though. If 28 days isn’t enough, then 42 days aren’t likely to be. In fact, if I had to guess I would say the answer to your question is zero. Just a guess, but in any case it’s a pretty spurious analogy; we’re not talking about incarceration here, no matter how serious the accusations.

And on the point of how terrible it is to be accused of being a paedophile, this is criminal matter as much as it is one of libel. Such serious accusations would need to be investigated by the police and if there is sufficient evidence brought to trial, where the accused would be presumed innocent until proven guilty. If there is not enough evidence to convict, this in itself should be enough to prove the initial accusations were libelous. So even here your and thomas’s argument just doesn’t stand up.

I fail to see why this is so draconian really. If you’re going to make accusations and statements against a person or organisation I really fail to see why it’s such a big deal that you should have absolute proof in being able to do so.

“As for the Daily Mail, I detest the newspaper and find it despicable when it says that immigration causes a crime wave. But I defend its right to say it on the grounds of freedom of speech, whereas your position that it shouldn’t be able to do so runs contrary to freedom of speech. Have you really thought this through?”

As I said, I’ve no problem with people saying what they want, just that they accept the consequences of what they say should they get dumped on for having reported something as fact when they didn’t have a sufficient burden of proof to win a libel case over it.

“Put it another way: being put in jail is Really Really Bad. Having someone say nasty things about you is Pretty Fucking Trivial. End of story…”

As thomas said, tell that to people that are accused of being paedophiles, or racists. The power that a “trivial” story with no foundation in fact can hold over peoples lives, especially when it comes to the tabloid media, is immense.

“I’m guessing that you are neither a lawyer nor a professional journalist Lee. Innocent until proven guilty is a legal concept that applies to a court of law. To re-emphasise, john b’s point, which is pretty fundamental here, in a libel trial the person being sued is the defendant.”

It’s a legal concept that applies to a court of law, which you must surely always bear in mind when writing stuff that may end up landing you in said court? As I said above, to reiterate, I don’t believe at all for a second that people should be able to say what they like without consequence, even if I believe that people should be free to say what they like with that risk in mind.

“Frankly, it might have gone either way, so ask yourself how many more Aitken’s there are out there that have managed to get away with it because of our libel laws.”

I understand what you’re saying here, don’t get me wrong, but I don’t agree that it should be the the accuser of libel that should then have to prove that they have been misrepresented, it just seems like a conflict of interests that would ultimately result in the defendant putting the accuser on trial and needing to present their case to prove it anyway. Either way the outcome is the same, you have to back up what you claim when writing something.

I can’t help but draw parallels between your wishes to cast a wide enough net that innocent people get caught up and “have to deal with it” and plans to extend detention without charge to 42 days. After all, how many Muslim terrorists have got away with escaping jail because we’ve not detained them for longer than 28 days?

Trials, traumas and tragedies might make your Saturday night special, john b, but only whilst you remain a disassociated bystander on the sidelines of the story. Do you want to get dragged into that particular arena?

False accusations still carry an unhealthy burden of suspicion, and they leave their marks too.

Innocence until proven guilty is a concept that is vitally important in a legal system, but it’s not one that everyone should be forced, on pain of legal sanction themselves, to adhere to in everything they say and do.

[if your babysitter was accused of being a child molester, the accusations would need to be proved in court before s/he could be sent to jail - but you'd be entirely justified in not continuing to employ him/her as a babysitter while awaiting trial.]

- and this would be more supportable were it not for the large and draconian penalties that the person claiming injustice has to pay if they fail to prove their case in every detail. Under British libel law the losing party has to pay the legal costs of both parties. Bringing a claim of injustice and having to prove it in a civil court would be fine, but the way libel law is organised means that you risk bankruptcy by doing so.