The Libel of Truth

I have been watching politics for a long time and have mused over these thoughts for most of that period. However, this referendum campaign really brought them to the fore and highlighted an issue that really needs to be addressed.

People say pretty much whatever they want.

Many readers might well be shocked that I could ever class such a thing as a problem. How could I be against Freedom of Speech? In fact, nothing is further from the truth. I am a passionate advocate of all forms of liberty and freedom of speech is one of the most important of those. But let’s stop for a moment and think about what liberty really means.

Pure unadulterated freedom means I have the freedom to kill, to rape, and steal with impunity. I would be totally free – so there are no restraints on me whatsoever. You might say that is ridiculous but it isn’t. It is the absolutely inevitable conclusion of total liberty. It is anarchy, the law of the jungle. Might is right, strength is all and freedom is really just for the few.

For freedom to mean anything it must be the freedom for all; but that means restrictions. Freedom for one person means they have the right to take my things; but where is my freedom to enjoy what I have bought? I want to be free to walk down the road and not be attacked; but how does that square with someone who wants to go around attacking people?

There has to be a balance and, for all to enjoy the most freedom possible, there have to be some restraints. Certainly these should be the absolute minimum and should be concerned with those things that take freedom from others; but they need to be there. Liberty within a society governed by rules – Social Liberty – is the only real form.

Freedom of Speech

This is a cornerstone of liberty and should be defended vigorously; but what does it mean? Like Brexit, it is an expression used without being defined and that definition is vital as there may need to be some restrictions to defend liberty for all.

Freedom of speech does not actually mean that you can just say anything. If you say something about a person that isn’t true, it’s covered by the law of slander. On a larger scale, if you publish something about someone that isn’t true, this is covered by the law of libel; and these are recognised and respected restrictions on freedom of speech.

Libel is defined in the OED as “a published false statement that is damaging to a person’s reputation”. Personally, I think that can be simplified to “a published false statement that a person doesn’t like”. After all, if it’s saying something nice about someone that isn’t true, they probably won’t mind; but it would be fairer to all if that choice wasn’t there. So there’s a lot to be said for simplifying that to “a published false statement about a person” – though I am sure lawyers could explain to me in detail why the law doesn’t say that.

So freedom of speech means I can say what I want about someone – unless it’s not true. Even then I can give my opinion on that person and discuss them at length. That’s the freedom. No one tells me what I can talk about, what I can say or when I say it. The only restriction applies if I am saying something that is not true. Now, that is hardly a restriction on liberty, is it?

Unfortunately, if such a statement is not about a person, then there is no one to object – unless in specific circumstances such as an advertising or in describing contracts etc. So if I want to publish something that I want to claim is true; but which is patently false, I can. “A published false statement” on its own is not illegal. The truth is being damaged and its reputation tarnished but there is no one to stand up for the truth.

There should be.

Current remedies

I’ve been talking about libel and that covers publications, most famously, the press. In discussing this some might say that there are already sufficient remedies in place to combat inaccuracies – i.e. the Independent Press Standards Organisation. However, this has three failings:

  1. No teeth – It cannot enforce its rulings. It’s entirely voluntary and it has no powers to stipulate the form of resolution that might be offered. Which is why all the retractions are printed so small – it’s all they are prepared to do.
  2. Not everyone is a member – the Guardian and the Financial Times are not members and have their own in-house complaints mechanisms.
  3. It’s outdated in the modern digital world – Twitter, Facebook and websites are just as important nowadays and have little or no regulation. They do fall under publishing and so come under libel; but there is no libel for the truth.

Having said that, the editors’ code of practice that IPSO promotes is commendable – especially the first section that relates to the accuracy of the press. But with no teeth, an incomplete scope and no jurisdiction over the digital media, it is far from sufficient.

What to do?

Make publishing a false statement illegal.

That’s the simple answer; but the devil is, as ever, in the detail. The most important detail, though, is the consequence of being found guilty under such a law. This is a proposal to stand up for the truth. Now the truth doesn’t care about damages or fines, it doesn’t care about revenge or hold grudges, all the truth would want is to be acknowledged as true. So if someone publishes something false and are proved to have done so, they simply have to publish a correction in the same location, size and prominence. That’s all.

It doesn’t matter what the intent was – it’s irrelevant. Any legal case is therefore a matter of pure fact as the question of intent – which is notoriously difficult to prove – is removed. No one is being punished, no one is being fined or disadvantaged; the truth of something is simply being upheld. Nothing more.

Since such a law would cover all publication including Twitter, this blog, Facebook, etc it would have potentially massive scope. For that reason there would probably need to be a minimum level, below which no action should be taken; but for Twitter accounts where there are tens of thousands of followers, for example, I think it probably should apply.

Such a law is simple and fair at every level. For example, f someone proved a tweet I sent was factually incorrect – I would send a correction. If someone proved a part of my blog was inaccurate – I would correct it on the blog in the same prominence and note the update. But the big enforcement would come with large media outlets. If you run a front page headline stating that “The moon is made of Cheese” and you are taken to court, then you would have to run another front page headline explaining how you were wrong. I think after a few times, such media operations would become a bit more cautious about reporting things that they could not back up.

A Suitable Law

I’m not a lawyer or a law-maker – there are people eminently more qualified than me who are both – but every law starts with an idea. At the moment, I see no defence of the truth in English law – especially covering the internet – and a law of this type would address that. I know there would be complications and difficulties of implementing it – the minimum levels, special arbitration procedures perhaps to make it quicker, and so on – but that doesn’t stop it being an idea that should be discussed and debated in the media and, ideally, parliament.

So I’ve started a petition for it.

Make publishing a false statement illegal.

A publication that makes a factually incorrect statement – for whatever reason – and is proved to have done so, will have to publish a correction in the same prominence, location and size as the original false statement.

100,000 signatures and it should be (though it’s not guaranteed) debated in parliament. We live in a democracy, after all, and a key for debating and arguing ideas is a respect for the truth on which we base our opinions and views of the world. It’s the level playing field we compete and debate on; so I find it hard to understand why we should not at least look at this idea.

If you agree, then I would urge you to sign the petition as it will only lead to a debate about such a law, not the law itself. If you disagree, I completely respect your position, but I don’t understand it and would therefore welcome your comments.

Let’s see what will happen…

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