Re: Buckingham: We was robbed!


"Robin Levett" <rnlevett@xxxxxxxxxxx> wrote in message news:7gi183-nsb.ln1@xxxxxxxxxxxxxxxxxxx
> Deadrat wrote:
>
> >
> > "Robin Levett" <rnlevett@xxxxxxxxxxx> wrote in message
> > news:e4uv73-c5b.ln1@xxxxxxxxxxxxxxxxxxx
> >> Deadrat wrote:
> >>
> >> >
> >> > "nmp" <address@xxxxxxxxxx> wrote in message
> >> > news:pan.2005.12.21.14.45.32.135541@xxxxxxxxxxxxx
> >> >> On Wed, 21 Dec 2005 06:20:13 -0800, it was decided that Richard
> >> >> Forrest should write:
> >> >>
> >> >> > Cyde Weys wrote:
> >> >> >> nmp wrote:
> >> >> >> > On Wed, 21 Dec 2005 08:53:31 -0500, it was decided that Jason
> >> >> >> > Spaceman should write:
> > <snip>
> >
> >> > Here are the considerations:
<snip>

Forgot one: the subject must be personally identifiable. "All realtors
are crooks" doesn't libel any particular realtor.

> >> > Was the statement false? (Opinions and insults aren't true or false.
> >> > In this case, if "Liar!" is a statement of fact, there's plenty of
> >> > evidence that it's not true.)
> >>
> >> Un-checked. It is irrelevant, in deciding whether a statement is
> >> defamatory, whether it is true or false; truth is a defence to the claim,
> >> and falsehood is not a necessary constituent of the claim.
> >
> > Different in the US. Truth is an absolute defense against defamation.
>
> As here; but it is a *defence*, rather than falsehood being a necessary
> constituent of the tort. The main relevance is as to the burden of proof;
> it is for the Defendant to prove truth, rather than for the Claimant to
> prove falsehood.

Again, different in the US. The tort of defamation requires falsehood.
You can still get in trouble for revealing private embarrassments that
are true, but it's a different tort.

>
> > If it's true, it may hurt, but it's not tortuous.
> >
> >> > Did the speaker know it was false? (Only counts for public figures,
> >> > and the judge is ex officio, one of those.)
> >>
> >> This is one of the ways in which malice can be shown, and you require
> >> malice in a claim brought by a public figure.
> >>
> >> >
> >> > Was the statement believable? (If a reasonable person wouldn't have
> >> > believed the speaker, then he's off the hook.)
> >>
> >> Goes only to the level of damages. If the statement lowers the target in
> >> the estimation of right-thinking people, then it's defamatory. If only a
> >> few right-thinking people will believe it, then the degree of damage to
> >> reputation is less. Note that "right-thinking" doesn't mean
> >> "intelligent and reasonable", although there is overlap between the
> >> concepts.
> >>
> >
> > Different in the US. If the mythical reasonable person would not have
> > believed the statement, then it's not defamatory. In Falwell v. Flynt,
> > Falwell claimed that Flynt libeled him by claiming that Falwell's first
> > sexual encounter had been a three-way with his own mother and a goat.
> > The jury ruled that the statement wasn't defamatory because no one
> > in his right mind, let alone a reasonable person, would have believed it.
> > They awarded Falwell damages for emotional pain, but the Supreme
> > Court reversed, saying no defamation, no damages.
>
> I think this is a little more subtle than you present it, having read the
> decision. The Supremes accepted the Court of Appeal's views on the
> defamation issue, and the decision was essentially on the tort of
> intentional infliction of emotional distress. As I understand the
> decision, what is said is that parody is protected; if the publication
> could not reasonably be taken as alleging true facts about the public
> figure, then there is no claim. It doesn't deal with a publication which
> could be reasonably so taken.

I may not be making my point clearly enough. Believability in the US
is a gate that turns the defamation on or off; it doesn't calibrate the level
of damage. If the statement is not believable, then there is no defamation
and no damages, including damages for related torts like infliction of
emotional distress.

> >
> >> >
> >> > Was the statement damaging? (Only necessary for an award. But if the
> >> > judge
> >> > can't show he was hurt, he may win the suit but no money. Do
> >> > Buckingham's statements carry any weight?)
> >>
> >> Relevant (here, at least, but I think the same is true in most of the US)
> >> only in most cases of slander. Imputations of criminality, unchastity,
> >> VD (STI) or disparagement in office, profession, calling etc do not
> >> require
> >> proof of special damage. Libel requires no such proof.
> >
> > Yes. Some things are libel per se. They're considered so damaging
> > that the plaintiff doesn't have to present evidence of harm.
> >
> >> > Can the burden of proof be met? (It's "preponderance of evidence,"
> >> > i.e., the
> >> > majority. The law varies from state to state, but for slander (oral)
> >> > the plaintiff usually carries the burden; for libel (written), the
> >> > defendant may.)
> >>
> >> Certainly in England & Wales, the claimant carries the burden of
> >> establishing defamation and (where relevant) damage; the defendnat then
> >> bears the burden of establishing any defence (justification (truth), fair
> >> comment on a matter of public interest etc) relied upon.
> >>
> >> The standard of proof is generally balance of probabilities (or, as you
> >> put it, preponderance of evidence); but certainly here that can be skewed
> >> where, for example, a defendant relies upon justification of a statement
> >> imputing criminality.
> >
> > Yes. Defendants can get a thumb on their side of the scales if they spoke
> > or wrote from a privileged position, one of which is the promotion of the
> > public good, like honest court testimony or reports to the police.
>
> That is a different issue.

Ooops! Sorry. I didn't read carefully enough.

> Such a publication attracts privilege, qualified
> or absolute; qualified privilege requires the Claimant to prove malice.

We're getting out of my depth, but I think it's the same in the US. There
are also a very few absolute privileges, e.g., a legislator on the floor of
Congress.

>
> What I was referring to is that, in English courts at least, while the
> standard of proof in tort is on the balance of probabilities, that standard
> is more strict where what is alleged also constitutes a criminal offence.
> If a Defendant wishes to rely upon a defence of justification of a claim of
> criminality - that is, argue that the published fact was true - he'd better
> be able to prove it to a very high standard.

We're still out of my depth, but I think in the US a charge of criminality
is just another libel per se. But assume <standard disclaimer>.

>
> >> <include standard disclaimer>
>
> --
> Robin Levett
> rlevett@xxxxxxxxxxxxxxxxxxxxxx (unmunge by removing big blue - don't yahoo)
>

.

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