I often read, when cases of libel arise, that English libel laws have the burden of proof the wrong way round. i.e. if someone is accused of libel it is up to them to prove themselves innocent rather than for the accuser to prove guilt.
However, suppose someone writing in the public domain accuses another person (person X) of having 'an unhealthy interest in children' (to use an emotive example), and is then sued by person X for defamation.
Should the burden of proof be on person X to prove that the author was lying (or published without proof) or should it be on the author to prove that what he claimed is in fact true?
To me it looks like the English libel law has it the right way round: if a person makes a claim they should be able to back it up!
Or is there another way of looking at this?
I assume (I don't know much about law etc.) that other systems use the burden of proof the other way.
I'm just wondering whether JoK, or anyone else knowledgeable on the subject, could clarify things a bit.
It's just that as a skeptic, when people make claims, I always place the burden of proof on the person making the claim and it looks like the English libel laws do the same. Perhaps all the other systems are wrong!
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If the case was about prosecuting someone for "having an unhealthy interest in children" then it would be up to the accuser (generally the police) to prove it. However, if the case is about suing someone for libel, then surely it should be up to the accuser of libel to make the case.
Essentially, English libel law does not exist to proptect ordinary people against untrue allegations, it exists to protect the rich and powerful against true allegations.
In JJ's example, how exactly would you go about proving that you "dont have an unhealthy interest in children"? The same way you would prove there is no god maybe, er no wait...Originally Posted by Trinoc
skb
ETA: As far as I am aware in English law it is the accuser that must prove guilt, so for example in a murder case it is up to the prosecutor to prove the guilt of the defendant. In libel law it is up to the accuser to prove the guilt of the defamed
Last edited by skbuncks; 21st August 2009 at 08:48 AM.
Suppose I accused you of stealing rare birds eggs and making an endangered species extinct? An activity that is illegal and an accusation that is likely to set "activists" onto you. Should you have to prove that you didn't do it, to stop the daily protests, letter bombs, etc? Or should I have to prove that you did do it? How could you prove that you didn't do it? Meanwhile leaflets are being handed around at animal rights meetings, by people unknown to either of us, with your name, address and phone number. All because I invented a false story about you.
It would seem to me that in this case the burden of proof should be on me, not you. If it were on you then you'd never manage to clear your name.
So, can I assume that the skeptical movement has changed sides and now supports the BCA against Simon Singh?
Are you saying that you did steal the eggs?
If you are falsely accusing me of a criminal offence then that is a criminal offence in itself. If you are simply impugning my reputation, then I should have to prove to you that I have a reputation and that you had materially damaged it -- a civil law issue.
Is there any Bacon, Black Pudding or Sausage with these eggs, if so I'm in.
Getting briefly back on topic ...
I think we are missing the distinction between a criminal trial and a civil trial. In a criminal trial someone is being accused of something against the law and will be punished if found guilty, so obviously it should be up to the accuser to prove the case beyond reasonable doubt, with the accused not obliged to prove innocence. In a civil trial, generally both sides must make a case and the result depends on the balance of probabilities.
The problem with the libel law is not that it requires the defendant to make a case for the libel not having occurred, but that this is the only case that needs to be made. The claimant simply has to accuse someone of libel and then sit back and wait for the defendant to try to prove them wrong. A fairer libel system would require both sides to put forward a reasonable case, and there would be solid protections about freedom of speech, open scientific debate etc.
Unusually, I think we can look to the American idea of libel as a good model for improving our own laws here.
Well I don't ride bandwagons, skeptical or otherwise. I've stated elsewhere on here that I think Simon's problem is that he said the BCA "happily promotes" bogus treatments. So I think he's going to have great difficulty in defending his case as, unlike what skeptics like to believe, it's more about the words "happily promotes" than it is about the word "bogus".
But my main question was about whether the English libel laws are back to front and place the burden of proof in the wrong place. I'm still not convinced that this is so, but I think there's obviously a lot of history behind their purpose and this makes them rather unfair (favourable to the rich and wealthy organizations).
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My first thoughts were that the English libel laws are back to front, but after thinking about it more and more over the last few months, now I'm not so sure.
The reasoning for the English libel laws being as they are seems fairly sound (the defendant is the accuser, the plaintiff the accused, therefore the defendant should prove his accusation) but it is clear that the libel system is not fair and favours greatly the rich.
The problem may not be with the law being "back to front" but with the way in which the system works towards defendants. There should perhaps be more controls in place to ensure that defendants can afford to defend themselves or to ensure that rich organisations cannot put too much undo pressure on the defendants to give in. How this could be achieved, if at all, I don't know, though as Trinoc said, having both sides present evidence of their stance would seem to be fairer.
I think that the Simon Singh case muddies the waters re the above. Not only does it raise several areas for further review/change/debate (need for scientific debate, libel laws, cost to defend, free speech, reliance on one persons interpretation of statement) but the case seems to revolve around the interpretation of "happily promotes" as suggesting that the BCA were being dishonest. I don't read it as that (and Simon has stated that he didn't mean that either).
A lot of psychics believe they can talk to the dead and are not deliberately trying to defraud anyone. They believe. They could be noted as "happily promoting bogus abilities". This does not necessarily infer that they are being dishonest.
Of course other people could read it that way which would make a lawsuit possibly valid...
I wish Simon luck in his case as I think the BCA's argument is too thin and I don't think Simon's article has defamed the BCA "in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them."
I think the BCA's subsequent actions have done more harm to themselves than Simon's article ever could have.
Anyway, I'm still in two minds about the English libel law as I can see the benefits (and pitfalls) of both (US or English). And neither seems a clear winner. Yet.
I think we need a Jack of Kent opinion here, but last I saw he was going into seclusion to write a book ... but it can't be too secluded because he is also setting up a second London Skeptics in the Pub (in Westminster, concentrating more on social and political issues). If I spot him at the next SitP, assuming he hasn't posted in the meantime, I'll try to nudge him in the direction of this thread.
I've just stumbled upon this.
Interesting.The Ministry of Justice has announced a review of UK libel laws, proposing to update them and make the laws more relevant to Web publishing.
http://www.techwatch.co.uk/2009/09/1...-internet-age/
This has recently appeared on The Guardian's site.
http://www.guardian.co.uk/uk/2009/no...bel-law-reformIntimidating and out-of-date laws are silencing free speech and scientific inquiry, a report claims, amid increasing controversy over England's status as "the libel capital of the world".
The report, released today after a year-long inquiry, says libel law needs fundamental reform to move away from its origins defending the rich and powerful.
"English libel law is preventing not only the media, but also medical science and research, NGOs and others from holding the powerful to account," said John Kampfner, chief executive of free speech organisation Index on Censorship.
There's an interesting twist to this with respect to fraud. In order for fraud to be shown, the perp has to knowingly represent something as true which they know to be false, for their own gain. In the case of alternative medicine, it then seems that ignorance of the facts is actually a defence against fraud charges.
In that situation, all the Woo merchants have a vested interest in their own scientific ignorance. It also provides a weird twist on the chiropractor libel case too. How can they knowingly be supporting bogus treatments if they themselves are ignorant of the science? Again, it seems that their ignorance might be an ironic defence.
It does beg the question then of how they can claim any interest in evidence. The ignorance defence would be one they would want to avoid for obvious reasons. You can already see the Mitchell & Webb sketch taking shape
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