I have often wondered whether to say that you defame a person is to actually defame that person.
And, as law is ultimately a practical subject, there is really only one way to find out.
So, at obvious and very considerable personal risk, I now make the following four statements:
I hereby defame Uri Geller
I hereby defame George Galloway
I hereby defame Trafigura
I hereby defame The Church of Scientology
I want to see (a) whether any of these defamed parties will threaten to sue (or complain to my host); and (b) what their clever lawyers will seek to claim is the defamatory meaning of my clearly defamatory statement.
It will not be until I receive this claimed defamatory meaning, of course, that I will know finally whether my best defence will be fair comment, justification, or privilege.
(As a control sample, I also hereby defame Simon Singh, who I do not believe will sue me.)
Over time, we may even be able to analyse and compare the different approaches of the libel solicitors instructed by the defamed parties
So lets see what now happens.
*Claimant solicitors are invited to send their letters before action (which should comply FULLY with the pre-action-protocol) to jackofkent @ gmail.com. Please assume I will plead justification until I receive your client's claimed meaning. I reserve the right to publish such letters, notwithstanding any confidentiality or "not for publication" provision you may wish to impose.*
COMMENTS MODERATION
No purely anonymous comments will be published; always use a name for ease of reference by other commenters.
Friday, 19 March 2010
Subscribe to:
Post Comments (Atom)
Posts
45 comment(s):
I defame Jack of Kent.
Er ... you haven't defamed them.
See Berkoff v Burchill,
"This appeal raises questions as to the meaning of the word "defamatory" and as to the nature of an action for defamation."
I would think that the word "defamation" is merely a generic concept which lacks practical content until somebody supplies it by making a statement along the lines of "X is a murderer" or "Y is a sex-addicted alcoholic" etc. The practical content is the material which bases the action because it lowers the person in the estimation of right-thinking members of society - Sim v Stretch 1936.
I don't think you can do that. I'm fairly certain I once saw Galloway in a tutu on TV. The man's undefamable.
To quote an old comedy show:
"Here come de judge...."
To defang someone is to remove their teeth. In the same way, if you defame someone, they cease to be famous. Yesterday, I defamed Paul Crawford. If you haven't heard of him, then by defaming was a success.
Jack, I don't see why you should expect this to be defamatory.
After all, by saying "I hereby murder Gordon Brown", I am not in fact murdering him (nor would anyone think that I am). What I am doing is merely lying.
Same for any other crime I can think of.
Seriously though, your question is whether "defame" is performative or descriptive. According to the OED, the verb "defame with" or "defame of" could once be used to raise an imputation of a specific offence. This would seem open to performative use. That is, if I were to say "I defame Jack of Kent with knavery", then my saying so defames Jack of Kent. (Not that I would dare do such a thing).
However, it is characteristic of such performative verbs that the same word can be used to report that a speech act of a certain kind took place. ("I promise to pay you" is a performative "You promised to pay me" a description). It seems to me, however, that, whether with promises or defamation, the performative must involve some specific thing promised or defamed. In other words, if you, bolder than I, were to say "I defame Uri Geller of using his psychic powers to render me impotent", you would thereby defame him. But if you simply say "I defame Uri Geller", the speech act is incomplete (unsaturated, in technical terms), unless some concrete defamation is supplied.
If I say "I made a promise yesterday," when I promised nothing, I make a complete assertion, albeit a false one. If I say "I promise that..." then my speech-act is left incomplete. If you say "Do you promise to pay me." and I say "Yes, I so promise", then it would constitute a complete speech act, because the content of the promise has been so supplied.
So, I do not think that you succeeded in defaming Uri Geller by writing "I defame Uri Geller."
A final analogy I will note. It is well-known that statements such as "This sentence is false" are problematic for logicians. There are also problems with "This sentence is true": what is it that is true? Saul Kripke attempted to resolve both these problems with a theory that truths must be grounded. In Kripke's terminology, "I defame Uri Geller" is ungrounded, whereas if I were to say "I defame Uri Geller with causing my impotence", it would be grounded.
I defame Spartacus!
Although it may be non-trivial to determine whether this is in any way actionable, I'm pretty sure you're safe here. Based on my extensive background in not-law, I'd guess that you have to actually say something defamatory in order to defame a person, and so saying "I hereby defame X" without an accompanying defamatory assertion is simply incorrect. You've claimed to defame them, but actually you haven't. That's how I'd interpret it, at least.
In other words, does "I defame X" constitute a performative speech act (like "I hereby declare you to be man and wife")?
I suspect not. For "I hereby marry you" to count, the speaker has to fulfil certain conditions (like being licensed to marry people). I strongly suspect that defamation requires real content in order to count as defamation, However, I may well be wrong. You, after all, are the lawyer.
If it were determined that these defamations are valid and if the parties thus defamed chose not to take action to protect their reputation, could that be used as a defence later by anyone else they did choose to sue? Eg is one's reputation already accepted as impuned and therefore unable to be further tarnished?
Also, how cheaply could 2 amenable parties progress such a case through the courts simply to establish the answer to your question - eg if they represented themselves and each offered practically no case except presenting the basic facts?
I fame Simon Singh, negating your earlier de-famation.
I wonder how many Simon Singh's there are in the world (or at least with standing to sue for defamation in English courts, which seems to be the same thing).
Perhaps I could find one of the "others" and offer to help fund his defamation suit?
What a bunch of tossers. Why don't you all go and do something constructive????
I think your experiment may have a flaw. If you were to be sued over this post, you would not be judged on the phrase "I defame X" in isolation.
A reasonable person might read something into how you have selected the people/organisations to "defame". The later contrast with Simon Singh makes things worse.
As usual with libel, it is not the definition of words that matters so much as the overall effect of the writing.
In my view, the entire blog post is mildly defamatory. If you *are* sued, I hope it is by Simon Singh. It would be exceedingly annoying if any if the others made money from you.
I heard a story, which may be aprocryphal, that someone once wrote a book in which they horribly defamed a character who bore many striking resemblances to Saul Kripke. But they also included another character who was perfectly unobjectionable, and who they named "Saul Kripke". In order to sue for libel, Kripke would have had to deny his own theory of naming, which holds that a proper name refers to the same person in all possible worlds...
I think if you believe there is anything you can say about Uri Geller that's not justified, you may be able to claim insanity, if that's any help?
Edited version of comment left by Stuart Brown
Edited with his consent.
I’m going to defend Jack’s right to consider himself to have defamed Uri Geller. It’s tenuous, but maybe good enough for Eady J.
First to note is that, by the use of the adverbial “hereby”, it certainly is intended to be a performative. It may, however, be defective. Arguments that it is defective because performatives require certain kind of ritualized investiture are misconceived: it may be that our prototypical unambiguous performative—the act of marrying a couple—requires this, but there are plenty of performatives, such as “promise” that don’t.
Performatives also, in general, require context. The problems besetting the poor Twitter-bomber are because his jovial comment was interpreted as a promise-type performative (we can promise to do something by simply using the future tense); it is clear to all non-CPS employees, however, that the context—Twitter, FFS!—rendered this invalid as a performative; just as a vicar cannot marry couples outside a church. However, for defamation the legal definition of context spreads to anything that is published in the UK.
The thing then turns on the apparent absence of a complementizer that-clause; (e.g. “I promise [that I shall write my chapter by Monday]”, or “I defame Stuart [that he has not written his chapter, and is procrastinating on Jack of Kent’s blog]”.) Now we do not need such that-clauses to be overtly expressed in the performative, for instance “Do you promise to become resident in the UK?” “I promise.” So a performative can be syntactically well-formed without an overt that-clause. But do we need an implied one?
Well, I’m going to argue that, whilst as far as I know, given UK law does not require a defamatory statement to be a false/falsifiable assertion, it does require it to be such as would lower the reputation of the individual in the eyes of—what is it?—“right-thinking people”. Now, I’m going to suggest that Jack of Kent naturally considers himself to be trustworthy, and that his views be such as “right-thinking people” can take summary statements on trust; that therefore in the statement “I hereby defame Uri Geller” is the presupposition that Jack considers Uri Geller worthy of defamation.
This is, in effect, a consequentialist view of the matter. It sees defamation—and I believe this reflects the way UK law currently operates—as ultimately residing in the ends (the intention to lower a reputation), and not the usually necessary means (the statement of a purported fact).
I think we can illustrate this best with an example of a potential following statement. Let us use the statement “Uri Geller claims to be capable of telepathy, dowsing, bending, moving compasses, erasing computer tapes and sprouting seeds, all with the power of his mind.” Set alone, this statement is surely not defamatory, being as it is a precis of some info on his website (and I had a laugh and a half getting it, I can tell you). However, let us imagine Jack were to say [DELETION].
I would argue that this is defamation, carrying the implication that Jack doubts the sincerity or accuracy of Geller’s claims. The defamation cannot lie in the that-clause itself, as it is such as Geller himself presumably would not question. The defamation must, therefore, simply lie in the intent to defame. The actual content of the apparently defamatory proposition is, ultimately, redundant.
For the avoidance of doubt, the above paragraph is entirely hypothetical. I have absolutely no idea as to whether or not Jack considers Geller to be [DELETION].
I hearby [DELETION] myself. I expect to settle for a large amount, covered by my insurance. Now I must go and deflame the cat, which has been playing with matches.
(ps:Jack didn't edit this)
Given Jack's publicly stated views on philosophy (judgement of meaning: were references to philosophy students intended to be restricted to undergrads or indicative of philosophers per se?) I think those commenting on the nature of speech actions are much closer to being defamed than the Scientologists.
On a matter of law. If one defamed a whole group ie "I hereby defame all Scientologists" as opposed to
"I hereby defame The Church of Scientology" would the resulting suit come from each Scientologist individually or would it come from the Church? What about cases where the representative body is less clear "I hereby defame all Scotsmen" etc?
Stuart, I don't see how your final example gives us a "pure" defamation. I can guess what the deleted word may have been, but let's say that it was "liar." In that case, by saying "Liar", Jack would have defamed Uri as a liar. If he said "Wimp" he would have defamed him as a wimp, etc. (Of course, Jack has said no such thing as far as any of us know).
I think we would all agree that defamation is a speech-act that can be, and usually is, performed without making use of "defame" as a performative - otherwise, it would be very easy to avoid prosecution. Furthermore, the usage recorded in the OED it defaming someone of or with an offence, rather than defaming that, so there is no reason to suppose that the content of the defamation in your example would have to be the content of the that-clause.
There is another tactic I can see: you suggest that if Jack says someone is worthy of defamation, he thereby defames them. So, let's invent a new word, "defame-worthy." If Jack were to say "Uri Geller is defame-worthy" it sounds more like an incitement to defamation than an actual defamation. He would be saying that, contrary to what Oz Digger seems to think, defaming Uri Geller is a worthwhile way to spend one's time.
I might also say "It would be a good thing to libel Uri Geller." Clearly, this is not a libel - if I say "Uri Geller is not a liar, but it would be good to publish an article claiming he was", that would not be libel, since I have stated that he is not a liar. A libel must be presented as true, but in inciting you to libel, I am clearly implying the untruth of what I incite you to publish. Incitement to defamation is not like this: I could incite you to engage in honest defamation. Still, the example suggests that incitement to a criminal speech-act is separate from the actual performance of that speech-act.
Still, having introduced the concept of being defame-worthy, one could say "I defame Uri Geller as being a defame-worthy person." There is, indeed, already a way of sailing close to the wind here, "If I were to publish what I know to be true but cannot now prove about N, N would sue me for defamation of character." Would this constitute defamation? Or what of "If I were to publish what I know to be true but cannot now prove about N, N would have grounds to sue for defamation of character," the latter not implying that N is a litigous character. This kind of innuendo is a particularly vicious way of slurring someone's character. Perhaps I know that N is sometimes a messy eater, and in particular, has a habit of leaving the table with a messy beard. But by indicating that I know something bad about N, but leaving the contents unstated, I let the listener imagine something far worse.
So, earlier I argued that to describe someone as defame-worthy is incitement to defamation rather than actual defamation, but I can see that this is a tricky question, and let us suppose that "N is defame-worthy" constitutes an actual defamation.
So, did Jack defame Uri as defame-worthy when he said, "I defame Uri Geller". This is where it becomes really interesting.
When Jack published the original statement, the word "defame-worthy" did not exist. I invented it because I was not aware of any English word that expresses the very concept that was required. Jack could argue, in court, that thought depends on language, calling on a philosopher as an expert witness. He could not have defamed someone with a concept that he did not have the linguistic resources to express. On the other hand, the new word came into being precisely because we were trying to make sense of Jack's comments: perhaps the concept of being defame-worthy was implicit in what he said, called into being by his intentions, so to speak.
@OrbiterJ
My real name is Y, I would sue but as I actually am "a sex addicted alcoholic", I would lose.
@Ben Murphy
I am very sorry to here of your impotence. Was this due to an unfortunate bending incident and is this why you blame Mr Geller?
@Ben Murphy: you are broadly accurate in interpreting my post as indicating that I was suggesting the utterance “I hereby defame Uri Geller” was thereby claiming that Geller is defame-worthy and therefore itself a defamation.
You are incorrect in what you think the deleted text I hypothetically ascribed to Jack was, which is a shame as I think it would help the matter. The point oriented around the fact that there could be a proposition which was totally anodyne, a simple statement of fact about X which was uncontested by all parties, but which, if prefaced with the words “I hereby defame X:” would therefore constitute libel. A safer example which Jack hopefully won’t have to censor could be that John considers himself to be the Son of God. He has said so, in public and in print. There therefore can be nothing defamatory about the statement “John considers himself to be the Son of God”. But the statement “I defame John, that he considers himself to be the Son of God” is clearly defamatory. The libelous nature could not lie in the proposition itself, so must lie in the intent to have others consider that you, justifiably, consider X worthy of libel — “defame-worthy”.
Whilst a philosopher could — and indeed many have — argue that thought is dependent upon language (a proposition generally referred to as the Sapir-Whorf hypothesis), an equal number have rejected this claim, for exactly the reasons that are obvious from your post. There clearly is a concept of somebody being worth of defamation, pre-existing your neologism “defame-worthy”, in that I managed to write about it then (and just now) without using any such a neologism. My point was that, if libel results from an intention to defame, simply stating that you defame somebody — given some Gricean-style maxims concerning you expecting to be taken seriously, and considering yourself to be a trustworthy person — suffices to be the intent to defame.
I cant help feeling that silly blog like this is a fair representation of the whole Singh ordeal and the limp wristed support. He who said the wrong thing in public about a powerful organisation seemingly to pucker up his little book.
Gentlemen and token lady grow up and show some internal fortitude...ie backbone. sigh
Dr M.
@Dr M.
Congratulations for managing on your second attempt to post a comment in accordance with the non-anonymity policy of this Blog.
Richard's Kripke-theory-dependent-Kripke-libel reminds me of a G E Moore story (possibly also apocryphal). Trying to prove the existence of an external world to a philosophical idealist he slapped the guy on the face. It put the idealist in a nice dilemma: accept the assault or accept that there was an external world to get slapped in.
I think Ben Murphy is right. The "I defame" is a little too easy to unpack and if we are to get to parodoxical libels we need to be a bit more subtle.
One such one may be that given by Oz Digger. Calling us a "bunch of tossers" and implying that we are not doing anything constructive is clearly defamatory. But then we'd all probably agree that we are a bunch of tossers totally wasting our time trying to tie liar paradoxes, non refering sentences and linguistic puzzles into our attitude to Uri Geller. But then we don't have to tell the judge that and can act all offended in court. But then I've just blown it by posting this. But then I might not be the one suing etc...
@Tony Lloyd
Well, certainly my justification of a complementless “I defame” was, as I said at the time, tenuous. But I think it is a mistake to think that these linguistic/phil of lang niceties are irrelevant. Law courts are, I would argue, one of the few places where such minutiae really matter. Linguistics—and pragmatics in particular—are essential to courts where back-interpretations from text to intention (both in legislation and case law) can mean the difference between a person’s liberty or punishment. OK, so in libel law there is a another text—that of the libel itself—in the mix, and Jack’s challenge (and my justification) was pushing the boundaries of what can be achieved by language, but it is precisely in the courts that these boundaries really matter. In day-to-day life we get by, language works well enough, and the holes and flaws are covered over by a generally Putnamish or Grician no-miracles pragmatism. But in day-to-day life the detail of an opinion on, for instance, the precise meaning of the word “bogus” does not mean months of uncertainty and huge personal expense!
I heard a story, which may be aprocryphal, that someone once wrote a book in which they horribly defamed a character who bore many striking resemblances to Saul Kripke. But they also included another character who was perfectly unobjectionable, and who they named "Saul Kripke". In order to sue for libel, Kripke would have had to deny his own theory of naming, which holds that a proper name refers to the same person in all possible worlds...
I love it. It would be even better if the defamation was that the character did not expound his theory of naming in good faith. Suing the author would automatically create a defence of justification.
I just happened upon this blog on a surf through the internets. As it pertains somewhat directly to the discussion at hand, anyone wanting to read a book-length treatment on whether Uri Geller has actually been defamed here should check out a book by philosopher J.L. Austin, appropriately entitled "How to Do Things With Words."
As a philosopher-in-training, I might be biased in thinking so, but it was actually kind of an interesting read!
Here's an Amazon link: http://www.amazon.ca/How-Do-Things-Words-Second/dp/0674411528
Oh dear.. You dared mention the wacked out freaks at the (not a) Church of Scientology. It was nice knowing you but I fear you shall now be kidnapped and tested on by Tom Cruise and his robot of a wife.
Fair well.
I feel that "I defame X" carries an imputation, albeit unspecified, that X is guilty of a deplorable act or acts. So while the performative nature of the speech act is uncertain, it functions as a coherent statement of fact. Or it could be interpreted as "I wish to defame X by drawing attention to the fact that X is susceptible to accusatory statements." So on rhetorical grounds (I know nothing of the legal ones)X could well send in the lawyers.
If you defame someone by saying you defame them, then surely you have a complete defence of justification, because the statement is true?
@Benjamin Gray
Doesn't that get you into the liar's paradox? If you say "I defame X" it means you're guilty of the crime of defamation, but if you saying it is a defence, then you're not guilty, so you haven't defamed them, so you dont have that defence...
It must be Friday afternoon. This is an almost definitively pre-weekend comment string. Come Monday you'll all wonder why any of these were posted.
Anyway, I'll take a real risk by saying I hereby defame the CPS.
I think so, but I've now managed to confuse myself in the process.
On a slightly pedantic note though, Libel is no longer a crime, just a tort.
It's only fair you counter my philosophical pedantry with legal pedantry.
But what if we move it away from the active first-person singular in the present tense?
If we do, then a claimant, by saying "you've defamed me", instantly wins. Though again, you'd have a complete defence of Volenti.
Again, if a judge says "you've defamed [claimant]", then presumably that statement makes the judgment automatically correct, and you would be unable to appeal. That might depend on whether you defame the claimant by virtue of the judge's statement (in which case absolute privilege may apply?) or if the judge's statement is what renders you the defamer, and the claimant the defamed. If it's the latter, would it ever be possible to appeal, as the circular basis is that the judge found as he did because of his findings.
Now, the more important question, who wants to be the test case here?
As an aside, what happens when the monocultural world of "reasonable thinking people" of the 1930s is fragmented, particularly among different types of belief and non belief.
As a simple example, if you call a traditional Christian gay this is defaming them (because in their community it is a sin) but if you call an atheist gay it is not.
In the Central African Republic the courts have a high case-load of witchcraft cases, meaning that the courts acknowledge at least the possibility that supernatural powers may be used to actively harm other people - and so an accusation of witchcraft is a real and strong defamation. If you accused me, in England, of the same witchcraft surely no such defamation would occur.
So what happens if you accuse Uri Geller of not exercising supernatural powers (not that anyone has, I hasten to add)? Could that be the thin edge of where different and unresolveable belief systems impinge on legal definitions. Perhaps language itself is not grounded when there is no one consensus of beliefs about the nature of reality among the users of that language.
"So what happens if you accuse Uri Geller of not exercising supernatural powers (not that anyone has, I hasten to add)"
Can I get away with saying that I have yet to see anything which Uri Geller has done where a similar act hasn't been convincingly performed by others without needing a supernatural explanation? Of course this is convincingly demonstrated to me - others mileage might vary as they say.
As Derren Brown might point out, the fact that these acts can be performed by other means does not mean that this is the only way of doing it.
Of course there are people who have stated that Uri Geller doesn't exercise supernatural powers; just nobody on this comment string (or at least none that have got past moderation).
@Mike There have been several cases (Liberace a famous one) that considered accusations of homosexuality a defamatory statement. Much of that, though, comes from the fact that at the time of the cases, it was a crime.
The test is not necessarily the literal meaning, but the precise defamatory meaning of the words (the "sting").
If I accused someone who held themselves out as holding supernatural powers (I have no idea if Uri Geller does) of not really having or exercising supernatural powers, that's not the sting of the libel. The sting is that he is a charlatan.
Similarly, if I accused someone like Fred Phelps (of "God Hates Fags" fame) of being gay, the sting isn't that he's gay, but that he's a hypocrite.
I am intrigued by the idea that a defence against a defamation suit is that the plaintiff is of such low character that reputation that he or she cannot possibly be defamed.
The word we are looking for is infamous.
I would imagine that this defence has been a rare source of entertainment in the dry and dusty chambers of the legal world: feel free to provide further reading material on this matter.
In the meantime, I suppose that I should have some 'skin in the game' and, for good measure, that I should be forced to test my own Ideas as well at the Learned Mr. J.Kent.
I hereby defame all Syphilis patients who refuse to fill in the contacts slip.
@Benjamin Gray
I think I have the key to the paradox. If I say 'I defame X' I'm stating by implication that there is something dodgy about X. But merely stating or implying that there is an unspecified dodginess about X's moral character doesn't make it true; the case still has to be made. Therefore, since the statement's truth value is not established outside the court of law, where the accusation can be upheld or dismissed, there can be no circularity and the statement thus is meaningful.
Possibly...
JackOfKent,
As legal representative of my clients The Church of Scientology, Trafigura, George Galloway and Uri Geller, I am writing to request that you remove Jack's Defamation Challenge from your site.
Each of my clients feel that you have defamed them by placing them with the other three disreputable (and overly-litigious) people or organisations that are listed.
Each of them feels that their reputation will suffer harm by being presented as somehow similar to the others. Yes. Even the Church of Scientology.
Demetrius said...
To quote an old comedy show:
"Here come de judge...."
Surely that's "Here come de fame..."?
Post a Comment