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Holocaust defamation

OK, it’s time to do some serious thinking about free speech and defamation. Who should prove what and how?

Just a little bit of background, especially for the non-lawyers: I’ve been reading Deborah Lipstadt‘s book about the defamation suit brought against her by the (in)famous Holocaust-denier David Irving. He didn’t appreciate being called a Holocaust denier and a crappy historian. (I’m paraphrasing. The exact language complained of is summarised by the Judge here.) Now being called those things obviously has the effect of reducing one’s reputation “in the eyes of right-thinking members of society”, so little argument was made about whether or not they were defamatory. Instead, the crux of the case was whether the defendants (prof. Lipstadt and her publisher, Penguin) could prove justification on the grounds of substantial truth. In other words, you’re allowed to ruin people’s reputations, as long as you speak the truth doing so. (Or if you do so as part of court proceedings, as fair comment, in Parliament, etc.) Now obviously, in this case justice was done, given that the Judge unhesitatingly held for the defendants, but the question remains whether this is the right way to sort out these kinds of problems. Was it really just for prof. Lipstadt to be dragged all the way from Atlanta to the Law Courts in London to defend her statements? Shouldn’t the law have given her the benefit of the doubt, instead of forcing her to spend millions of pounds and years of her life arguing with such an odious man?

Before we get to the human rights of the story, let’s start with the analytical logic of who claims what. After all, it is a legal rule of ancient provenance that parties have to prove what they claim. (In good Latin: Ei incumbit probatio qui dicit, non qui negat. Cf. Digest 22.3.2.) So who claims what, exactly? Well, the key thing to remember is that the tort of defamation is not about lying, but about damaging someone’s reputation. It follows that the plaintiff claims and proves that the offending statements can indeed be attributed to the defendant, and that the statements in question are defamatory, i.e. tending to lower the plaintiff’s reputation in the eyes of right-thinking members of society. This is where the first loopholes come in. The “right-thinking” part is only a little one; this is where the courts can step in and say that being called a homo is not defamatory, because only idiots would think less of you if you were gay. The big loophole is that by law statements of opinion are not defamatory. Much as my saying that David Irving is a creep might hurt his reputation, given how much value other people attach to my opinions, the offending statement has to allege actual facts in order to be capable of being defamatory. The reason for this is undoubtedly a mixture of the desire to protect people’s freedom to express their opinions and the notion that opinions without allegations of fact do not/should not affect the plaintiff’s reputation. How can an ipse dixit without any reference to concrete facts hurt someone’s reputation? In actual practice, of course, it can, but for the purposes of the tort of defamation, it cannot.

The defendant, in turn, can claim and prove that the plaintiff didn’t have much of a reputation to begin with, that the offending statements were in one way or another privileged (parliament, court, press, fair comment) or that they are true.

Now in the US they have turned this wonderfully crafted common law approach upside down, by making the falsity of the statement an element of the tort. In other words, they’ve pretended that the plaintiff is complaining that he was lied about. Of course, this is not really true. People tell lies about other people all the time, but it doesn’t become defamation unless it hurts someone’s reputation. The lie is just incidental to the tort. The reason why the tort was framed this way has nothing to do with the actual posture of the case, and everything with the First Amendment to the United States Constitution:

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While defamatory statements are not covered by the Amendment, it was felt that the definition of the tort should be as narrow as possible so as to avoid chilling speech that was protected. (As a side note: earlier this month, in United States v. Alvarez, the United States Supreme Court somehow managed to leave everyone in confusion about whether or not knowing falsehoods can ever be protected speech. Reading between the lines, however, the better view is probably that there is no blanket First Amendment exception for knowing falsehoods. In any event, there is certainly no blanket exception for negligent falsehoods. Personally, I think that at least false statements of fact that are made in the knowledge of their falsity, with actual malice or with reckless disregard for the truth should never be protected speech.)

We will leave to one side, for now, the fact that in the US the case of Irving v. Lipstadt and Penguin would have been dealt with under the precedent of New York Times v. Sullivan, which gives an even greater degree of protection for speech about public figures like Irving. Instead, the interesting question is how this difference in the rules of the game works out in practice, and how it should work out in practice. The first inkling that things are not so black and white appeared already in one of the first sentences of this post, when I talked about the offending statements being *substantially* true. While this criterion is defined further in the case law, it is obviously an important safety valve for preventing injustice, and it is important that the courts use it. The same goes for the question of whether something is a statement of fact or an opinion. Just because something sounds like a statement of fact, doesn’t mean that it is, as we saw in the Dutch All Cops Are Bastards case, where the court didn’t even bother to explain why this wasn’t a case of defamation. Likewise, a number of the statements listed by the court as being potentially defamatory strike me as statements of opinion instead, most importantly the first part of the second statement of the six that the Judge distilled from the material (par. 2.15):

Irving is one of the most dangerous spokespersons for Holocaust denial, (…)

The rest of that sentence does of course contain numerous claims of fact:

[Irving] has on numerous occasions denied that the Nazis embarked upon the deliberate planned extermination of Jews and has alleged that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such extermination;

On the whole, it is clear that prof. Lipstadt made some potentially very damaging allegations, especially statement iii:

Irving, in denying that the Holocaust happened, has misstated evidence; misquoted sources; falsified statistics; misconstrued information and bent historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs;

and it is right and proper that she should be asked to support those claims with evidence, as indeed she did. (Incidentally, like the Judge, I don’t think it matters very much why he did the things alleged here. What is damaging for his (professional) reputation is that he did. He’s a crappy historian because he just makes stuff up. The whole story about the extent to which Irving was himself an antisemite is beside the point. Adhering to one political ideology or another is not a fact that is of itself capable of being defamatory, under the above-mentioned ”right-thinking” loophole.)

So how do we prevent frivolous lawsuits that are brought for no other reason than to bully the defendant into settling? How do we avoid chilling too much speech?

In the Irving case, the most important mechanism for preventing such shenanigans failed: the losing side paid some of the defendants’ costs, but not nearly all of them. More importantly, while Irving was more or less bankrupted as a result, he wasn’t so bankrupted that he couldn’t still travel around the world. A functioning system of cost orders for losing plaintiffs is essential for preventing frivolous suits.

A second part of the solution is in the American Supreme Court cases of Twombly and Iqbal. In those cases, the Supreme Court dialled up the pleading standard in certain civil cases, i.e. the level of detail and plausibility that the plaintiff has to observe in his initial pleadings in order to avoid having his case thrown out under Rule 12(b) of the Federal Rules of Civil Procedure. Quoting Iqbal:

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. … Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying plead­ings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal con­clusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach.

Whether such a thing is possible under English law as it stands, I do not know, but either through statute law or through case law England has to create a means of filtering unmeritorious cases earlier in the process. That still means letting cases like prof. Lipstadt’s go to trial, but it at least allows the judge to cut down on the range of things that the defendant needs to prove if they’re relying on a defence of substantial truth.

An entirely separate thing that needs fixing is the international rules about jurisdiction in defamation cases. In today’s globalised world, this can only be done through a treaty. A strict choice limiting the number of possible fora needs to be made. So far not even the European Union, working under its Regulation 44/2001, has been able or willing to make such a choice. In that Regulation, the court of the jurisdiction where the tort was committed still has jurisdiction to hear the case (art. 5(3)), and in cases of (internet) defamation, that can be anywhere. The CJEU concluded in eDate v. X and Martinez v. MGN, the most important case in this area so far, that:

[T]he person who considers that his rights have been infringed has the option of bringing an action for liability, in respect of all the damage caused, either before the courts of the Member State in which the publisher of that content is established or before the courts of the Member State in which the centre of his interests is based. That person may also, instead of an action for liability in respect of all the damage caused, bring his action before the courts of each Member State in the territory of which content placed online is or has been accessible. Those courts have jurisdiction only in respect of the damage caused in the territory of the Member State of the court seised.

In other words, there are two courts that have jurisdiction to award damages for the whole word, and every other court with an internet connection can award damages for their particular Member State. Instead, what we need is a hard and fast worldwide rule, enacted by treaty, that limits the jurisdiction over on-line torts and all defamation cases to the court of the jurisdiction where the defendant is habitually resident. It should not be possible to sue prof. Lipstadt or dr. Rachel Ehrenfeld anywhere other than in the United States, not even by adding their English publisher as a co-defendant. At the moment, there is some room for keeping out truly outrageous cases of forum shopping by using the forum non conveniens doctrine, but that is in no way enough. National solutions, like the abhorrently-named SPEECH Act, are tragic cases of – in this case – American jingoism that do little to solve the underlying problem. Limiting enforcement is at best a second-best solution, especially for defendants with substantial assets abroad. Instead, the foreign case against them shouldn’t be brought in the first place.

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