tag:theconversation.com,2011:/us/topics/defamation-9323/articlesDefamation – The Conversation2024-02-02T13:18:37Ztag:theconversation.com,2011:article/2225742024-02-02T13:18:37Z2024-02-02T13:18:37ZDoes Trump actually have to pay $83.3 million to E. Jean Carroll? Not immediately, at least<figure><img src="https://images.theconversation.com/files/572933/original/file-20240201-27-sjgsi6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">E. Jean Carroll, center, and her lawyers leave a Manhattan federal courthouse following the conclusion of the civil case against former president Donald Trump on Jan. 26, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/jean-carroll-and-her-lawyer-roberta-kaplan-leave-manhattan-news-photo/1963507121?adppopup=true">Michael M. Santiago/Getty Images </a></span></figcaption></figure><p><em>Former President Donald Trump has <a href="https://thehill.com/regulation/court-battles/4439443-trump-interviewing-new-lawyers-e-jean-carroll-case-appeal-attacks-judge/">vowed to appeal</a> journalist E. Jean Carroll’s major legal victory over him on Jan. 26, 2024, when a Manhattan jury determined that Trump must pay her US$83.3 million for repeatedly defaming Carroll.</em> </p>
<p><em>The jury awarded Carroll US$7.3 million for damage to her reputation, $11 million for emotional harm and $65 million for punitive damages.</em></p>
<p><em>Another jury in the New York City borough previously held the former president liable for <a href="https://www.usatoday.com/story/news/politics/2024/01/29/donald-trump-rape-e-jean-carroll/72295009007/">sexual abuse</a> and defamation against the writer in May 2023, and <a href="https://apnews.com/article/trump-rape-carroll-trial-fe68259a4b98bb3947d42af9ec83d7db">awarded her $5 million</a> in damages. Trump allegedly <a href="https://www.usatoday.com/story/news/politics/2024/01/29/donald-trump-rape-e-jean-carroll/72295009007/">sexually abused Carroll</a> in a department store dressing room in 1996.</em> </p>
<p><em>But even as Trump says <a href="https://www.businessinsider.com/donald-trump-law-firms-e-jean-carroll-appeal-2024-1">he is looking for new lawyers</a> to help him appeal the jury’s latest decision to make him pay Carroll tens of millions of dollars, does he still need to pay Carroll some money in the meantime?</em> </p>
<p><em>The Conversation U.S. spoke with civil procedure scholar <a href="https://www.brooklaw.edu/Contact-Us/Ressler%20Jayne/Writings">Jayne Ressler</a> to understand what happens now that the jury has announced its award to Carroll.</em> </p>
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<a href="https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Donald Trump wears a long, black jacket and red tie and walks in a New York City street." src="https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572937/original/file-20240201-29-fixhgf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Former President Donald Trump arrives at a news conference in New York after leaving the second day of his defamation trial involving E. Jean Carroll on Jan. 17, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/former-president-donald-trump-arrives-for-a-press-news-photo/1940812359?adppopup=true">Michael M. Santiago/Getty Images</a></span>
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<h2>What exactly does ‘punitive damages’ mean?</h2>
<p>Punitive damages are intended to really punish and deter a person from doing whatever acts are in question – in this case, continuing to speak publicly about and <a href="https://www.cbsnews.com/news/trump-e-jean-carroll-defamation-damages-reputation/">defame Carroll</a>. They are also meant to send a message to other people – that if you act like this, you are going to be in trouble, too. </p>
<p><a href="https://www.law.cornell.edu/wex/punitive_damages">Punitive damages</a>, like the $65 million in this case, are not awarded frequently. Research has shown that about <a href="https://centerjd.org/content/fact-sheet-punitive-damages-rare-reasonable-and-limited-2011">5%, or sometimes less, of civil cases</a> wind up having punitive damages rewarded. </p>
<p>Punitive damages are separate from <a href="https://www.law.cornell.edu/wex/compensatory_damages">compensatory damages</a> – meaning, the amount of compensation that Carroll should be rewarded because of direct harm to her. </p>
<p>With punitive damages, a jury is basically saying, “What you did is so egregious that we are going to punish you above and beyond what the actual compensatory amount is.”</p>
<h2>Does Trump need to pay these damages immediately?</h2>
<p>Punitive damages are almost always appealed. Defendants don’t say, “Cool, here is a check for whatever amount.” It is a long appeal process that happens with these damages. </p>
<p>Trump has said he will appeal the decision, and he will likely first argue that the compensatory damages are too high. He will likely then argue that punitive damages should not be awarded, and second, that the punitive damage amount is excessive and is based on animus against him. </p>
<p>He doesn’t have to pay anything until the process is done.</p>
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<a href="https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="E. Jean Carroll walks through a crowd of people and photographers, including a person holding up a sign that says 'Trump is guilty.'" src="https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/572935/original/file-20240201-27-bl57u8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">E. Jean Carroll leaves a Manhattan federal courthouse in May 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/magazine-columnist-e-jean-carroll-leaves-after-her-civil-news-photo/1488653406?adppopup=true">Alexi Rosenfeld/Getty Images</a></span>
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<h2>How does a jury reach a specific amount when determining punitive damages?</h2>
<p>There is no exact accounting behind the dollar amount of these damages in general. That’s different from damages for something like a breach of contract on the purchase of a house, for example, where the complainant comes with a specific amount of money lost if a sale was agreed upon but did not go through. </p>
<p>When you are punishing someone, it is not really based on someone’s assets and how much money they have, as much as it is about the <a href="https://www.reuters.com/legal/trump-deck-testify-e-jean-carroll-trial-2024-01-25/">egregiousness of what the person has done</a> and how much money it would take for this particular person to stop. </p>
<p>The U.S. Supreme Court has not set out an exact ratio to say when punitive damages are too excessive, in accordance with compensatory damages. But <a href="https://www.scotusblog.com/2021/05/punitive-damages-and-rejected-pleas/">it has suggested</a> that there should be some correlation between the compensatory damages and the punitive damages. </p>
<h2>Assuming that Trump reaches the end of an appeals process and is still ordered to pay this full $83.3 million, how would that be enforced?</h2>
<p>If Trump’s appeal is turned down, he could simply pay the judgment. Or the next thing he could do is say he doesn’t have the assets to pay. </p>
<p>The court would then have to do a deep dive into what his assets are. If the court determines he does have the assets and he still does not pay, he would be held in contempt of court. That has <a href="https://www.reuters.com/legal/judge-upholds-donald-trump-contempt-order-sanctions-new-york-civil-probe-2023-02-14/">already happened to Trump</a> in other civil cases. It means he could be fined or given actual jail time. Or, if he says he doesn’t have the funds and he clearly does, then the court can seize his assets. </p>
<p>With Trump in particular, who is well known for drawing out legal processes, the appeals process could take a long time. It just depends. It could take years. </p>
<h2>Are there downsides to awarding such a high amount of punitive damages?</h2>
<p>For the average person to see something like $83.3 million, it can make you say, “Wow, what kind of court system is this?” No one is saying that Carroll was harmed at an amount that is equivalent to $83.3 million. And the $65 million of punitive damages, in particular, is not about how much Carroll was harmed. It is about punishing Trump’s bad behavior and getting him to stop doing it.</p><img src="https://counter.theconversation.com/content/222574/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jayne Ressler does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Before Donald Trump delivers any amount of monetary damages to E. Jean Carroll, he could engage in a long appeals process.Jayne Ressler, Associate Professor of Law, Brooklyn Law SchoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2218412024-01-25T13:18:34Z2024-01-25T13:18:34Z‘Strife in the courtroom’ − a former federal judge discusses Trump’s second trial for defaming E. Jean Carroll<figure><img src="https://images.theconversation.com/files/571243/original/file-20240124-25669-pmcgvu.jpeg?ixlib=rb-1.1.0&rect=3%2C3%2C1234%2C822&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge Lewis Kaplan, right, admonishes Donald Trump and his attorney Alina Habba in court.</span> <span class="attribution"><span class="source">Elizabeth Williams/AP</span></span></figcaption></figure><p><em>Former President Donald Trump is in court again, this time in his second trial for defamation of writer E. Jean Carroll. In the first trial, which ended in May 2023, a federal jury found Trump had “<a href="https://www.npr.org/2023/05/09/1174975870/trump-carroll-verdict">sexually abused</a>” her and defamed her when he denied her allegations and ordered him to pay US$5 million in damages. A jury in this trial will determine whether he needs to pay more for additional defamation, and how much.</em></p>
<p><em>U.S. District Judge Lewis Kaplan has spoken to both Trump and Alina Habba, Trump’s chief lawyer in this case, about their conduct in the courtroom – Trump for <a href="https://www.washingtonpost.com/national-security/2024/01/21/trump-carroll-judge-kaplan-witness/">speaking out loudly from the defense table</a> and Habba for <a href="https://www.businessinsider.com/e-jean-carroll-judge-bench-slaps-trump-attorney-alina-habba-2024-1?op=1">apparently disregarding general principles</a> of practicing law.</em></p>
<p><em>To understand more about what’s going on in this courtroom, The Conversation U.S. spoke with John E. Jones III, the president of Dickinson College, who is a <a href="https://www.dickinson.edu/homepage/1494/dickinson_college_president">retired federal judge</a> appointed by President George W. Bush and confirmed unanimously by the U.S. Senate in 2002.</em></p>
<h2>How does a judge handle either lawyers or defendants who don’t know or don’t follow the rules?</h2>
<p>Typically in civil cases you wouldn’t see the client acting out. That’s anomalous. Generally, the client adheres to the instructions that the court and their attorney give. One of the worst things any litigant can do when there’s a jury in the box is speaking out loudly – not even a stage whisper but actually speaking out and talking directly to the judge. </p>
<p>Most judges find that pretty intolerable, because when somebody’s represented by counsel, they’re not supposed to be addressing the judge directly – and certainly not making statements that are not under oath that the jury can hear, as is happening in New York.</p>
<p>What you want as the presiding judge is for the trial to unfold in a way that’s fair. You’re on edge all the time as the judge trying to guard the record. When you’ve got a defendant who’s talking back to you, and an attorney who’s not listening, intentionally or otherwise, and blowing through all the guidance that you’re trying to give her, it’s headache-inducing for the judge.</p>
<h2>How does the fact that one of the parties in this case is an extremely prominent political candidate play into the judge’s mindset?</h2>
<p>I had the occasion to have a couple of elected officials in Pennsylvania in criminal cases in front of me. It’s a curiosity when you first see it, but for a practiced trial judge like Judge Kaplan – I hate to say it this way – Trump just becomes another difficult litigant. </p>
<p>Kaplan is aware of the fact that it’s the former president of the United States. He can see the Secret Service members in the courtroom, but the fact of the matter is, it’s his domain. </p>
<p>Trump is there as a litigant, not as the former president. All persons stand equally before the law. That’s not an empty phrase. Kaplan has to do his best to make sure that both E. Jean Carroll and Trump get an even shake in court, despite the fact that, frankly, Trump may be annoying the hell out of Kaplan. You just have to go with it.</p>
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<a href="https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in an overcoat waves while standing in front of a row of American flags." src="https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571259/original/file-20240124-27-wjl7n3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Donald Trump waves to supporters after a news conference in New York City on Jan. 17, 2024.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/TrumpColumnistLawsuit/feb6bef6c1bc4f5993258a379d3dd5c9/photo">AP Photo/Frank Franklin II</a></span>
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<h2>What do you think about the exchange where Kaplan said he might have to throw Trump out of the courtroom, and acknowledged Trump would probably like that, and Trump said, “<a href="https://themessenger.com/politics/trump-e-jean-carroll-judge-kaplan-defamation-trial">I would love it</a>”?</h2>
<p>That was a telling comment by Trump. I never had a civil litigant that was that difficult. It’s unusual. I did have criminal litigants who would talk back, talk over me, create havoc and chaos. Of course Kaplan has admonished Trump. </p>
<p>You can forfeit your right to be present, whether it’s a criminal or civil case. What I’m impressed by is that Kaplan hasn’t pulled the trigger. Some judges would have a shorter fuse, and they’d take the bait. </p>
<p>The MAGA world, I think, would love to see him get tossed by a federal judge and would think that means he’s standing up to this judge and asserting himself. He martyrs himself by getting thrown out of court. I think that’s the last thing that Kaplan wants to do. </p>
<h2>Overall, what are your general thoughts about this case?</h2>
<p>It’s going to be very interesting to see where this jury comes down. If my experience holds fast and is instructive, they are not looking favorably on Habba. It’s not just Trump, it’s also Habba. </p>
<p>Juries generally feel connected to the trial judge. The trial judge is their friend, is their keeper, is the person who sends them out to the jury room, who gives them instructions, who greets them every day, who communicates. Most trial judges are able to really manage juries well. They respect that juries don’t want to sit too long without a break.</p>
<p>Habba may be winning with Trump and making him happy because she’s such a disrupter – but I suspect that she’s alienating the jury.</p>
<p>When you have <a href="https://www.businessinsider.com/e-jean-carroll-judge-bench-slaps-trump-attorney-alina-habba-2024-1?op=1">14 interruptions</a>, every one of them holds up the trial. They have a sense that Habba is doing something wrong. </p>
<p>The jury members typically get very uncomfortable when there’s strife in the courtroom, and that can be reflected in the verdict. </p>
<p>What fascinates me about the case is that on the one hand, you have Trump, who is using this as a campaign appearance and riling up his base by doing it. On the other hand, I can’t imagine he has enough insurance to cover any of this. I don’t know how liquid the guy is, but he could end up with a massive verdict against him that he’s going to have to pay. </p>
<p>There’s a real contradiction there: He riles up the MAGA base, but he maybe has to write a check for $50 million or $100 million. Who wants to do that? Like most things with Trump, who’s ever seen anything like this? I haven’t.</p><img src="https://counter.theconversation.com/content/221841/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John E. Jones III does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A retired federal judge sheds light on what’s going on in Judge Lewis Kaplan’s courtroom during the latest trial involving former President Donald Trump.John E. Jones III, President, Dickinson CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2206512024-01-08T19:17:20Z2024-01-08T19:17:20ZIndonesia is one of the world’s largest democracies, but it’s weaponising defamation laws to smother dissent<figure><img src="https://images.theconversation.com/files/568147/original/file-20240108-29-ygdop8.jpg?ixlib=rb-1.1.0&rect=17%2C1052%2C2969%2C2942&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/jakarta-indonesia-november-21-2022-east-2309158677">Shutterstock</a></span></figcaption></figure><p>Two former coordinators of one of Indonesia’s most prominent human rights organisations have escaped conviction in a defamation case brought by a powerful government minister. While their astonishing acquittal is welcome, the case marked a bleak new low for freedom of expression in one of the world’s largest democracies.</p>
<p>Haris Azhar and Fatia Maulidiyanti, who had coordinated the Commission for the Disappeared and Victims of Violence (KontraS), were accused of defamation by Coordinating Minister for Maritime Affairs and Investment, Luhut Binsar Pandjaitan. </p>
<p>Luhut’s statements made it clear the case was expressly intended to create a chilling effect and smother civil society criticism of the government.</p>
<p>So what is the case about, and why is it so important?</p>
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Read more:
<a href="https://theconversation.com/is-joko-widodo-paving-the-way-for-a-political-dynasty-in-indonesia-219499">Is Joko Widodo paving the way for a political dynasty in Indonesia?</a>
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<h2>A messy web of mining interests</h2>
<p>The case related to a 2021 <a href="https://www.youtube.com/watch?v=1xMlnuOtBAs">YouTube video</a> in which Haris and Fatia discussed a <a href="https://ylbhi.or.id/bibliografi/laporan/ekonomi-politik-penempatan-militer-di-papua/">report</a> published jointly by a group of Indonesian civil society organisations. In the video, the pair mentioned that Luhut was “implicated” or “involved” (<em>bermain</em>) in mining in Wabu Block, in the Intan Jaya district of what is now Central Papua Province.</p>
<p>The <a href="https://www.youtube.com/watch?v=Zf3YBmJ8324">details</a> are a bit complicated, but a key part of the dispute centred on this point about mining. </p>
<p>In 2016, Australian mining firm West Wits Mining <a href="https://announcements.asx.com.au/asxpdf/20161012/pdf/43bxf6v2rm9v2m.pdf">reported to</a> the Australian Stock Exchange (ASX) that its Indonesian subsidiary Madinah Quarataa’in had entered into an agreement with another company, Tobacom Del Mandiri. They wanted to develop the Derewo River Gold Project in Intan Jaya. </p>
<p>Tobacom Del Mandiri is owned by another major Indonesian firm, Toba Sejahtra. Luhut has acknowledged he <a href="https://www.cnnindonesia.com/nasional/20230608151000-12-959378/luhut-klaim-lepas-toba-group-sejak-jadi-menteri-saham-masih-pegang">holds</a> 99% of shares in Toba Sejahtra.</p>
<p>Representatives from both Indonesian companies <a href="https://www.republika.id/posts/42691/petualangan-perusahaan-luhut-di-papua">have since said</a> the partnership did not go ahead. But given his stock portfolio, the activists had a relatively firm basis for implying Luhut was “involved” in mining in Papua.</p>
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<p>Luhut objected to this.</p>
<p>He also objected to Haris and Fatia referring to him as a “villain” (<em>penjahat</em>) and “Lord Luhut”, a favourite moniker of Indonesians online. He got the nickname because President Joko “Jokowi” Widodo has entrusted him to oversee a <a href="https://bisnis.tempo.co/read/1739767/17-daftar-jabatan-luhut-dari-jokowi-terbaru-pengarah-mrpn">seemingly endless list</a> of strategic projects. </p>
<p>Haris and Fatia were charged with defamation under the Law on Electronic Information and Transactions (commonly known as the ITE law). Unlike in Australia, defamation is a criminal offence in Indonesia. They also faced secondary fake news charges and defamation charges under the Criminal Code. </p>
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Read more:
<a href="https://theconversation.com/a-twist-in-indonesias-presidential-election-does-not-bode-well-for-the-countrys-fragile-democracy-216007">A twist in Indonesia's presidential election does not bode well for the country’s fragile democracy</a>
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<h2>Making an example of activism</h2>
<p>Under Jokowi, there has been a dramatic escalation in abuse of the Electronic Information and Transactions Law to target activists, human rights defenders, journalists, and ordinary citizens.</p>
<p>According to Indonesian digital rights organisation SAFEnet, <a href="https://safenet.or.id/id/2023/11/koalisi-serius-mendesak-penundaan-pengesahan-revisi-kedua-uu-ite/">89 people</a> were
reported under the law between January and October 2023.</p>
<p>Public anger over the arbitrary way the law has been applied led the government to publish <a href="https://nasional.kompas.com/read/2021/06/23/19085041/skb-pedoman-uu-ite-resmi-ditandatangani-ini-isinya">guidelines</a> for law enforcers on its implementation. </p>
<p>According to the guidelines, defamation charges should not be brought when assertions are based on analysis, opinion or facts. </p>
<p>Luhut reported Haris and Fatia to police just three months after these guidelines were published.</p>
<p>The trial ran from April 2023 through to January 8 2024. During the trial, Luhut complained that being called names was <a href="https://www.cnnindonesia.com/nasional/20230608121926-12-959228/luhut-ngaku-kenal-lama-dengan-haris-saya-ingin-selesaikan-baik-baik">“deeply hurtful”</a>.</p>
<p>Delivering the court’s decision, <a href="https://www.cnnindonesia.com/nasional/20240108105148-12-1046633/haris-azhar-divonis-bebas-dalam-kasus-lord-luhut">Judge Muhammad Djohan Arifin said</a> the YouTube conversation between Haris and Fatia constituted opinion and analysis of a civil society study and their use of the word “lord” was not defamatory. </p>
<p>Prosecutors have said they will <a href="https://www.thejakartapost.com/indonesia/2024/01/08/two-activists-cleared-of-defaming-luhut.html">consider appealing</a> the decision. </p>
<p>Luhut claimed he reported the activists to defend his reputation. Other statements he made during the trial left no doubt as to his real motivations. </p>
<p>Luhut said he wants the case to serve as a “<a href="https://www.kompas.id/baca/polhuk/2023/06/08/luhut-bantah-tuduhan-punya-bisnis-tambang-di-papua">lesson</a>”. </p>
<p>The prosecution concluded its sentencing demand with <a href="https://www.cnnindonesia.com/nasional/20231113191500-12-1023701/jpu-kasus-lord-luhut-kutip-politikus-pengacara-haris-azhar-nilai-lucu">a quote</a> from a minor politician, Teddy Gusnaidi, stating: </p>
<blockquote>
<p>If using the label ‘activist’ means you are immune from prosecution, criminals will form NGOs (non-government organisations) to avoid consequences for their crimes.</p>
</blockquote>
<p>Luhut also claimed that he <a href="https://www.cnnindonesia.com/nasional/20230608163900-12-959440/luhut-saya-mau-audit-semua-lsm-dapat-dana-dari-mana">wanted to conduct</a> an “audit” of all non-government organisations in Indonesia to determine where they get their funding. </p>
<p>This is disingenuous. </p>
<p>Indonesian civil society organisations already need government approval to
receive donor funds, and most openly publish their list of donors in their public annual reports. </p>
<p>The government also regularly subjects foreign donors to interrogation from everyone from police to intelligence agencies, about their planned activities.</p>
<h2>Increasingly authoritarian tactics</h2>
<p>Appealing to nationalistic sensibilities and raising questions about civil society organisations like this is a <a href="https://www.fidh.org/en/issues/business-human-rights-environment/laws-against-foreign-agents-the-multi-functional-tool-of">classic technique</a> of authoritarian governments. It undermines organisations critical of government and <a href="https://www.tandfonline.com/doi/full/10.1080/13642987.2018.1492916">redirects focus</a> from the issues at hand.</p>
<p>Legal attacks like the one against Haris and Fatia are designed to <a href="https://experts.arizona.edu/en/publications/you-can-beat-the-rap-but-you-cant-beat-the-ride-bringing-arrests-">wear civil society down</a>. Fronting up in court every week is time consuming, emotionally draining, and takes activists away from their work. </p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/C0MfKbzyxG1/?img_index=1","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p>
<p>Further, the use of judicial harassment to target activists, in contrast to cruder tactics such as cyberattacks or physical violence, is designed to lend an <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1540-5893.2012.00515.x">air of legitimacy</a> to government repression.</p>
<p>Luhut has made it clear that the goal of the case against Haris and Fatia is to silence dissent. He appears to be succeeding.</p>
<p>There is already evidence that abuse of the Electronic Information and Transactions Law is having a chilling effect in Indonesian society, with a 2022 survey finding <a href="https://nasional.tempo.co/read/1580168/survei-indikator-politik-indonesia-629-persen-rakyat-semakin-takut-berpendapat">62.9% of Indonesians</a> were afraid of openly expressing their opinions.</p>
<p>Indonesian pro-democracy groups have long been willing to speak out against the state, even under the most challenging conditions. Yet repeated charges and arrests will eventually result in self-censorship and behavioural change.</p>
<p>In the face of mounting pressure, the government finally passed a <a href="https://icjr.or.id/wp-content/uploads/2023/12/Compile-RUU-ITE.pdf">revised version</a> of the law on December 5 2023.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/myanmar-crisis-highlights-limits-of-indonesias-quiet-diplomacy-as-it-sets-sights-on-becoming-a-great-regional-power-209291">Myanmar crisis highlights limits of Indonesia's 'quiet diplomacy' as it sets sights on becoming a 'great regional power'</a>
</strong>
</em>
</p>
<hr>
<p>Activists have complained that, like other regressive laws enacted in Indonesia over recent years, deliberations on the revision were conducted largely <a href="https://safenet.or.id/id/2023/07/revisi-uu-ite-harus-terbuka-serius-menjawab-permasalahan-dan-tidak-boleh-terburu-buru/">behind closed doors</a>. </p>
<p>The revised law does include some improvements, including that statements made in the public interest or to defend oneself cannot be prosecuted. The maximum sentence for defamation has also been decreased to two years, yet it remains longer than provisions on defamation in the <a href="https://peraturan.bpk.go.id/Details/234935/uu-no-1-tahun-2023">new Criminal Code</a>, which will come into force in 2026.</p>
<p>Activists have argued for a complete dropping of criminal charges for online defamation. Given they have proven such an effective tool for smothering dissent, there was never any chance legislators were going to simply give up this weapon. </p>
<p>Haris and Fatia may be the highest profile Indonesians charged under the Electronic Information and Transactions Law, but they will not be the last.</p><img src="https://counter.theconversation.com/content/220651/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tim Mann does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two human rights activists have been acquitted of defaming a powerful government minister. It’s the latest in a string of concerning authoritarian uses of Indonesian law.Tim Mann, Associate Director, Centre for Indonesian Law, Islam and Society, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2146352023-10-04T20:30:38Z2023-10-04T20:30:38ZAre We Dating The Same Guy? Online groups toe the line between protecting women and defaming men<figure><img src="https://images.theconversation.com/files/551207/original/file-20230929-19-y6jzfd.jpg?ixlib=rb-1.1.0&rect=100%2C90%2C6609%2C4376&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Social media sites have given many the potential to reach millions of people instantly. With that reach, the risks and impacts of defamation can be far greater.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/are-we-dating-the-same-guy-online-groups-toe-the-line-between-protecting-women-and-defaming-men" width="100%" height="400"></iframe>
<p>Infidelity and deception have always been part of dating and relationships. Traditionally managed privately between the parties or through legal processes, these issues have recently been co-opted by online vigilante communities that <a href="https://medium.com/sexography/are-we-dating-the-same-guy-has-become-a-hate-group-to-slander-innocent-men-a5f3a575585c">shame daters</a> — men in particular — who behave badly. </p>
<p>But are these online communities about more than shaming? Do they also safeguard women from getting exploited or hurt? </p>
<p>These questions are being debated in London, Ont., where a man featured on the Facebook group “Are We Dating the Same Guy? London, Ontario” <a href="https://www.cbc.ca/news/canada/london/are-we-dating-the-same-guy-facebook-group-london-ontario-1.6937007">launched a defamation lawsuit</a> against one of its administrators alleging he was called names, accused of sending lewd photos and labelled a bad parent.</p>
<p>As scholars who specialize in dating culture and defamation, this case is intriguing to us for the legal precedent it may set. It could also have far-reaching implications for people in the online dating world and anyone using social networking platforms.</p>
<p>Social media sites enable users to potentially reach millions of people instantly. With that reach, the risks and impacts of defamation can be far greater.</p>
<p>As university educators working in environments where online dating is widespread and incidents of gender-based and sexual violence <a href="https://ontariosuniversities.ca/student-voices-on-sexual-violence-survey">occur often</a>, we’re also interested in what this case could mean for university students.</p>
<h2>Are We Dating The Same Guy?</h2>
<p>The first group was launched on Facebook in New York in 2022 by women who wanted to protect one another from men who cheat, are violent or exploit them financially. </p>
<p>Since then, groups have sprouted up in hundreds of cities across <a href="https://mashable.com/article/are-we-dating-the-same-guy-facebook">North America</a>, <a href="https://www.radiofrance.fr/franceinter/podcasts/veille-sanitaire/veille-sanitaire-du-vendredi-02-juin-2023-4425553">Europe</a>, the <a href="https://www.standard.co.uk/insider/are-we-dating-the-same-guy-inside-the-facebook-group-where-women-vet-men-they-re-talking-to-dating-apps-b1058726.html">United Kingdom</a> and <a href="https://www.news.com.au/lifestyle/relationships/dating/inside-wild-dating-groups-exposing-australian-men/news-story/616da5fa9c3335d4af90cff25811b531">Australia</a>. Men in Toronto have retaliated by also creating their own Facebook page: <a href="https://streetsoftoronto.com/are-we-dating-the-same-girl-facebook-group-toronto/">Are We Dating the Same Girl?</a></p>
<p>Members of the women’s groups post information about “red flag” men using screenshots of dating app profiles, text exchanges and sometimes memes. <a href="https://www.vice.com/en/article/dy375q/are-we-dating-the-same-guy-facebook-groups">Many posts</a> are anonymous, contain trigger warnings and are difficult to read because they detail awful instances of coercion, assault, racism, extortion and abuse.</p>
<p>However, the degree to which these groups actually protect women is up for debate and so is the purpose they serve. In some instances, these groups may be used to make <a href="https://www.bendsource.com/news/are-we-dating-the-same-guy-yes-19906004">false claims</a> about men. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A smartphone display with different dating app icons" src="https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/551210/original/file-20230929-29-bmdb1b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Online dating has proliferated in recent years and groups have popped up to highlight daters who behave badly.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Online dating groups</h2>
<p>Online posts stating that someone has behaved poorly in the dating context could be considered defamatory. Men whose reputations suffer from the information featured in the groups <a href="https://theintercept.com/2023/07/22/metoo-defamation-lawsuits-slapp/">could sue</a> the people posting and the group administrators for defamation, especially if they are of high social or professional standing and have a lot to lose.</p>
<p>Post-writers might <a href="https://doi.org/10.3138/cjwl.34.1.03">defend themselves</a> against accusations of defamation through the defence of “truth.” The rationale for this defence is that a person cannot sue for reputational harm if the statement made about them is in fact true. </p>
<p>However, this defence would require posters to prove their allegations are true. We know from <a href="https://doi.org/10.3138/cjwl.22.2.397">decades of experience</a> that this can be especially difficult in stereotypical “<a href="https://doi.org/10.1350/ijep.2009.13.4.329">he said/she said</a>” situations. </p>
<p>Post-writers might also raise a “qualified privilege” defence. This protects someone against civil liability for defamatory statements made to <a href="https://www.canlii.org/en/on/onsc/doc/2013/2013onsc4796/2013onsc4796.html?autocompleteStr=vanderkooy&autocompletePos=1">protect the interests</a> of another party, a common interest or the public interest. </p>
<p>Although these groups were established to protect women from toxic or dangerous men, it’s unclear whether group members have a legal or moral duty to share and receive this information, which is the hallmark of qualified privilege.</p>
<p>If any information is shared with malice or includes statements that exceed what is necessary to protect someone’s interests, the post-writers cannot rely on this defence. This means that vitriolic statements or gratuitous complaints about someone’s dating behaviour aren’t protected by qualified privilege. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A women on a laptop with a pensive look on her face." src="https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/551208/original/file-20230929-17-kdrt13.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Posters can defend themselves by saying their comments are truthful. But that can often be hard to prove in court.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
</figcaption>
</figure>
<h2>Gender-based violence on campus</h2>
<p>Online dating, social media posting and defamation have unique implications for university campuses where additional dynamics are at play. </p>
<p>Students who experience distressing dating experiences, including gender-based and sexual violence, may post the names and photos of the perpetrators online to call out violence and protect fellow students. However, in doing so they could be vulnerable to defamation suits if they cannot legally prove that the statements are true. </p>
<p>Individuals labelled offenders could <a href="https://yorkspace.library.yorku.ca/server/api/core/bitstreams/cc69509d-8744-4ad6-a7aa-493332530f4b/content">bring defamation claims</a> or complaints against their accusers under student codes of conduct. </p>
<p>This happened at Yale University when a former <a href="https://apnews.com/article/yale-rape-acquittal-colleges-sexual-assault-1d74bbe89517db23c49a4a098186bd89">student was sued for defamation</a> after she reported that a fellow student had raped her. In 2018, a fired Yukon College instructor also <a href="https://www.yukon-news.com/news/fired-yukon-college-instructor-sues-student-over-sex-assault-allegations/">sued a student</a> who accused him of sexual assault and posted about it online.</p>
<p>Such cases could escalate campus tensions regarding safety issues and make it harder for people to <a href="https://doi.org/10.1108/GM-07-2022-0228">come forward about sexual assault</a>, which are already infrequent due to fears of being disbelieved, shamed by peers or reliving the traumas related to the events. </p>
<h2>More safeguards needed</h2>
<p>The romantic escapades of celebrities once dominated news headlines, but in our digital society, anyone’s dating life can be thrust into the spotlight. Are We Dating the Same Guy? groups highlight the thorny social and legal implications of posting what could be considered defamatory content. </p>
<p>The proliferation of these groups across the globe means we must reflect on the complicated world of online dating, where there is little protection for daters and few ramifications for people who behave badly. </p>
<p>The potential for students to be pulled into similarly complex legal battles is equally important to consider. To safeguard students, universities should ensure they are able to come forward about abuse, whether to file formal complaints or to obtain other supports. </p>
<p>Universities should also consider distributing information about online dating and social media issues so students better understand their rights and risks when it comes to gender-based and sexual violence, dating and <a href="https://doi.org/10.1016/j.emospa.2023.100975">campus safety</a>.</p><img src="https://counter.theconversation.com/content/214635/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Social media groups have emerged designed to protect women from bad dating experiences. Those who use them could be liable to being sued for defamation.Treena Orchard, Associate Professor, School of Health Studies, Western UniversityErika Chamberlain, Professor and Dean, Faculty of Law, Western UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2122422023-08-31T12:23:04Z2023-08-31T12:23:04ZMichael Oher, Mike Tyson and the question of whether you own your life story<figure><img src="https://images.theconversation.com/files/545972/original/file-20230901-21-zovk4b.jpg?ixlib=rb-1.1.0&rect=17%2C26%2C2977%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michael Oher and his family celebrate his selection by the Baltimore Ravens at the 2009 NFL Draft. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/baltimore-ravens-draft-pick-michael-oher-poses-for-a-news-photo/86217296?adppopup=true">Jeff Zelevansky/Getty Images</a></span></figcaption></figure><p>What if you overcame a serious illness to go on to win an Olympic medal? Could a writer or filmmaker decide to tell your inspiring story without consulting you? Or do you “own” that story and control how it gets retold?</p>
<p>Michael Oher, the former NFL player portrayed in the 2009 blockbuster “<a href="https://www.imdb.com/title/tt0878804/">The Blind Side</a>,” has sued Michael and Anne Leigh Tuohy, the suburban couple who took him into their home as a disadvantaged youth.</p>
<p>In his official complaint, Oher claims that through forgery, trickery or sheer incompetence, the Tuohys enabled 20th Century Fox to acquire the exclusive rights to his life story. </p>
<p>The Tuohys, Oher continues, received millions of dollars for a “story that would not have existed without him,” while he claims that he received nothing.</p>
<p>Just a year earlier, former heavyweight champion Mike Tyson was <a href="https://www.cnn.com/2022/08/08/media/mike-tyson-hulu-series/index.html">similarly incensed</a> when he learned that Hulu had created <a href="https://www.imdb.com/title/tt14181914/">a miniseries dramatizing his career</a> without seeking his permission. </p>
<p>“They stole my life story and didn’t pay me,” Tyson charged <a href="https://www.instagram.com/p/Cg7JRAeLY9B/?utm_source=ig_embed&ig_rid=8c5ce5bc-6faf-4c49-b355-4b25d72418b8">in an Instagram post</a>.</p>
<p>Oher and Tyson – not to mention countless influencers and wannabe celebs – share the conviction that they own, and can monetize, their life stories. And given regular <a href="https://www.ibtimes.com/kurt-warner-movie-20th-century-fox-acquires-rights-former-qbs-life-story-plans-film-adaptation">news stories about studios buying</a> “life story rights,” it’s not surprising to see why. </p>
<p>As law professors, we’ve studied this issue; <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4480628">our research shows</a> that there is no recognized property right under U.S. law – or the laws of any other country of which we are aware – to the facts and events that occur during someone’s life.</p>
<p>So why are Oher, Tyson and others complaining? And why do publishers and studios routinely pay large sums to acquire rights that don’t exist?</p>
<h2>No monopoly on the truth</h2>
<p>In most states, the commercial use of an individual’s name, image and likeness is protected by the so-called “<a href="https://rightofpublicityroadmap.com/">right of publicity</a>.” But that right generally applies to merchandise, apparel and product endorsements, not facts and actual events. So you can’t sell a T-shirt with Mike Tyson’s face on it without his permission, but writing a book about his rise to fame is fair game.</p>
<p>In the U.S., the freedom to describe historical events is rooted in <a href="https://constitution.congress.gov/browse/essay/amdt1-7-1/ALDE_00013537/">the free speech clause</a> of the First Amendment, and it’s a fundamental principle that no one – whether it’s a news agency, political party or celebrity – holds a monopoly on the truth.</p>
<p><a href="https://www.nytimes.com/2016/03/19/business/media/gawker-hulk-hogan-verdict.html">The law doesn’t sanction the invasion of privacy</a>, so an investigative journalist who uncovers some unsavory detail of your past can’t publish it unless there is a legitimate public interest in doing so. Nor does it condone the dissemination of false information, <a href="https://www.nytimes.com/live/2023/04/18/business/fox-news-dominion-trial-settlement">which can lead to defamation lawsuits</a>. </p>
<p>The First Amendment, however, does allow authors and film producers to truthfully depict factual events that they have legitimately learned about. They are not required to receive authorization from or pay the people involved.</p>
<h2>The origin of life story ‘rights’</h2>
<p>Film producers, however, are accustomed to paying for the right to repackage or use existing content. </p>
<p>Copyright licenses are required to commission a script based on a book, to depict a comic book character in a film and to include a hit song on a movie soundtrack. Even showing an architecturally distinctive building often requires the consent of a copyright owner, which is why the video game “Spider-Man: Miles Morales” <a href="https://www.ign.com/articles/spider-man-miles-morales-doesnt-have-the-chrysler-building-due-to-copyright-issues">had to remove the Chrysler Building</a>.</p>
<figure class="align-center ">
<img alt="Manhattan skyline with art deco skyscraper in the foreground." src="https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545622/original/file-20230830-24-kgtp41.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Studios hoping to include a shot of the Chrysler Building in their films might have to pony up.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/the-chrysler-building-stands-in-midtown-manhattan-january-9-news-photo/1079651514?adppopup=true">Drew Angerer/Getty Images</a></span>
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</figure>
<p>Along with these other rights and permissions, Hollywood studios have paid individuals for their life stories for at least a century. </p>
<p>Yet, unlike copyright clearances, life story deals do not involve the acquisition of known intellectual property rights. Life story “rights” are not rights at all. Instead, they bundle together a set of contractual commitments: the subject’s agreement to cooperate with the studio, not to work on a similar project, and to release the studio from claims of defamation and invasion of privacy. </p>
<p>By packaging these commitments under the umbrella of “life story rights,” studios can signal to the market that they have acquired a particularly juicy story. </p>
<p>For example, Netflix’s quick deal with convicted fraudster <a href="https://theconversation.com/how-scammers-like-anna-delvey-and-the-tinder-swindler-exploit-a-core-feature-of-human-nature-177289">Anna Sorokin</a>, the subject of the popular streaming series “<a href="https://www.imdb.com/title/tt8740976/">Inventing Anna</a>,” seems to have <a href="https://www.bbc.com/news/world-us-canada-56113478">deterred competing adaptations</a> of Sorokin’s story.</p>
<p>What’s more, the acquisition of life story rights has become so common that it is viewed, in many cases, as a de facto requirement for film financing and insurance coverage and thus part of the standard clearance procedure for many projects.</p>
<h2>Exceptions don’t make the rule</h2>
<p>As always with the law, though, there are exceptions. </p>
<p>Notably, the producers of the 2010 film “The Social Network” <a href="https://perma.cc/SN4H-UXAP">did not obtain the permission</a> of Facebook founder Mark Zuckerberg before dramatizing the origin story of his company. In moving forward with the project, they risked a defamation or publicity suit by Zuckerberg and others depicted in the film. But their gamble paid off: Zuckerberg, while <a href="https://perma.cc/SN4H-UXAP">critical of his depiction</a>, didn’t sue.</p>
<p>Nevertheless, other subjects who have been depicted in dramatic features without their authorization have sued to recover a share of the profits. </p>
<p>Silver screen legend Olivia de Havilland, for example, <a href="https://casetext.com/case/de-havilland-v-fx-networks-llc-1">sued FX Studios</a> for briefly depicting her in a miniseries about Hollywood rivals Bette Davis and Joan Crawford. She won at trial, though an appeals court reversed her victory, citing the producers’ First Amendment rights. </p>
<p>Lawsuits can even be brought when the characters’ names and story details have been changed. U.S. Army Sgt. Jeffrey Sarver, the bomb-defusing expert who inspired the Oscar-winning film “<a href="https://www.imdb.com/title/tt0887912/?ref_=nv_sr_srsg_0_tt_8_nm_0_q_the%2520hurt%2520locker">The Hurt Locker</a>,” <a href="https://casetext.com/case/sarver-v-chartier">sued the film’s producers</a> for violating his right of publicity. He lost.</p>
<p>Lawsuits like these are not the norm. But many producers hope to get ahead of a flimsy lawsuit and bad publicity by acquiring nonexistent rights.</p>
<h2>History is in the public domain</h2>
<p>Ultimately, there is nothing wrong – and much that is right – with paying individuals to cooperate with the production of features about themselves. Doing so can convey respect toward the subject and make the production go more smoothly. </p>
<p>But the fact that life story acquisitions have entered the popular consciousness has spurred the widespread belief that any portrayal of a factual series of events entitles those depicted to a lucrative payday. This expectation increases production costs and the risk of litigation, thereby deterring otherwise worthwhile projects and depriving the public of meaningful content that is based on true stories.</p>
<p>What could be done about this situation?</p>
<p>One idea <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4480628">that we’ve written about</a> would prevent right of publicity laws – the basis for many life story lawsuits – from being used against works that convey ideas and tell a story, such as books, films and TV shows.</p>
<p>Perhaps the most important thing that can be done, though, is educating people that they don’t have a right to cash in on every description of the events of their lives. </p>
<p>Collective history, in our view, belongs in the public domain.</p><img src="https://counter.theconversation.com/content/212242/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Publishers and studios routinely pay large sums to acquire ‘life story rights.’ Two law scholars explain why the phrase is misleading.Jorge L. Contreras, James T. Jensen Endowed Professor for Transactional Law and Director, Program on Intellectual Property and Technology Law, University of UtahDave Fagundes, Baker Botts LLP Professor of Law and Research Dean, University of Houston Law CenterLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2105142023-07-27T17:43:42Z2023-07-27T17:43:42ZGiuliani claims the First Amendment lets him lie – 3 essential reads<figure><img src="https://images.theconversation.com/files/539651/original/file-20230726-29-edulow.jpg?ixlib=rb-1.1.0&rect=11%2C11%2C7600%2C5055&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rudy Giuliani admits to lying but says the Constitution protects him.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GeorgiaElectionMisinformation/83aaf5c10aaf4da08f8f5e15cc5a21e2/photo">AP Photo/Patrick Semansky</a></span></figcaption></figure><p>In his response to a lawsuit filed by two Georgia election workers who said Rudy Giuliani harmed them by falsely alleging they mishandled ballots in the 2020 presidential election, <a href="https://www.nytimes.com/2023/07/26/us/politics/giuliani-georgia-election-workers.html">Giuliani has admitted lying</a>. But he says the women suffered no harm – and claims that his lies are protected by the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> to the U.S. Constitution.</p>
<p>The Conversation U.S. has published several articles by scholars explaining what the First Amendment – which, broadly speaking, protects freedom of speech and the press – does and doesn’t say. That includes how it can and can’t be used to protect speech about political controversies, and whether speech that harms or threatens to harm another person is protected. Here is a selection from among those articles.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A group of people stand nearby while a U.S. flag burns." src="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/507967/original/file-20230202-16618-otink6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It may be upsetting to see – but that’s part of the point of burning a flag, and a key reason it’s protected by the First Amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/members-of-the-communist-party-usa-and-other-anti-fascist-news-photo/1230698352">Michael Ciaglo/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. Not all speech is protected</h2>
<p>The First Amendment’s protections are not absolute, wrote <a href="https://lynngreenky.com/">Lynn Greenky</a>, a communications scholar at Syracuse University.</p>
<p>“When the rights and liberties of others are in serious jeopardy, speakers who provoke others into violence, wrongfully and recklessly injure reputations or incite others to engage in illegal activity <a href="https://theconversation.com/what-the-first-amendment-really-says-4-basic-principles-of-free-speech-in-the-us-197604">may be silenced or punished</a>,” she wrote.</p>
<p>“People whose words cause actual harm to others can be held liable for that damage,” she noted. That’s what the Georgia election workers are claiming in their lawsuit.</p>
<p>Lying about people and bullying them can have consequences despite free-speech protections, Greenky explained: “Right-wing commentator Alex Jones found that out when courts ordered him to pay more than US$1 billion in damages for his statements about, and treatment of, parents of children who were killed in the 2012 Sandy Hook Elementary School shooting in Newtown, Connecticut.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-the-first-amendment-really-says-4-basic-principles-of-free-speech-in-the-us-197604">What the First Amendment really says – 4 basic principles of free speech in the US</a>
</strong>
</em>
</p>
<hr>
<h2>2. Defaming someone can be costly</h2>
<p>Jones is not the only defamation defendant who has found lying costly. Dominion Voting Systems sued Fox News for spreading lies about its voting machines in the wake of the 2020 presidential election. Rather than go to trial, Fox settled for $787 million. </p>
<p>But communication scholar <a href="https://comm.osu.edu/people/kraft.42">Nicole Kraft</a>
at The Ohio State University warned that if the case had gone to trial, proving defamation might have been difficult. </p>
<p>“<a href="https://theconversation.com/defamation-was-at-the-heart-of-the-lawsuit-settled-by-fox-news-with-dominion-proving-libel-in-a-court-would-have-been-no-small-feat-203741">To be considered defamation</a>, information or claims must be presented as fact and disseminated so others read or see it and must identify the person or business and offer the information with a reckless disregard for the truth,” she wrote.</p>
<p>Another key question, she observed, is the amount of damage the statements do. “Defamation happens when someone publishes or publicly broadcasts falsehoods about a person or a corporation in a way that harms their reputation to the point of damage,” she wrote.</p>
<p>In his recent court filing, Giuliani appears to be saying the election workers weren’t harmed by his statements.</p>
<p>But they are claiming they were harmed, including that they <a href="https://apnews.com/article/giuliani-georgia-election-workers-lawsuit-false-statements-afc64a565ee778c6914a1a69dc756064">received threats and hateful and racist messages</a> from people in the wake of Giuliani’s allegations.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/defamation-was-at-the-heart-of-the-lawsuit-settled-by-fox-news-with-dominion-proving-libel-in-a-court-would-have-been-no-small-feat-203741">Defamation was at the heart of the lawsuit settled by Fox News with Dominion -- proving libel in a court would have been no small feat</a>
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</p>
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<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large, columned white building at the top of a grand, white set of stairs." src="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/505664/original/file-20230120-12-33u2r3.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The U.S. Supreme Court has ruled that some false statements are ‘inevitable if there is to be open and vigorous expression of views.’</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtDisabilitiesEducation/c46b6b0bf6ab45a4b6600360efe3083c/photo?Query=U.S.%20Supreme%20Court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=8325&currentItemNo=19">AP Photo/Manuel Balce Ceneta, File</a></span>
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<h2>3. The case could be easier</h2>
<p>It’s not clear whether Giuliani has claimed to have been a politician at the time he made the false statements about the Georgia election workers. But he was <a href="https://www.nytimes.com/2023/07/26/us/politics/giuliani-georgia-election-workers.html">functioning as a personal attorney and representative</a> of Donald Trump, who is definitely a politician.</p>
<p>Allowing politicians to lie with impunity can be dangerous for democracy, warned Drake University constitutional scholar <a href="https://scholar.google.com/citations?user=aIWyIH8AAAAJ&hl=en&oi=ao">Miguel Schor</a>:</p>
<p>“<a href="https://theconversation.com/george-santos-a-democracy-cant-easily-penalize-lies-by-politicians-197267">The First Amendment was written</a> in an era when government censorship was the principal danger to self-government,” he wrote. “Today, politicians and ordinary citizens can harness new information technologies to spread misinformation and deepen polarization. A weakened news media will fail to police those assertions, or a partisan news media will amplify them.”</p>
<p>Schor found a potential solution in a 2012 opinion by Supreme Court Justice Stephen Breyer, which said laws and courts should be able to penalize not just the harms caused by speech but also “false statements about easily verifiable facts.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/george-santos-a-democracy-cant-easily-penalize-lies-by-politicians-197267">George Santos: A democracy can't easily penalize lies by politicians</a>
</strong>
</em>
</p>
<hr>
<p><em>Editor’s note: This story is a roundup of articles from The Conversation’s archives.</em></p><img src="https://counter.theconversation.com/content/210514/count.gif" alt="The Conversation" width="1" height="1" />
To what degree can the First Amendment be used to protect someone from the consequences of lying?Jeff Inglis, Politics + Society Editor, The Conversation USLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2071022023-06-08T15:28:30Z2023-06-08T15:28:30ZWhy a federal judge found Tennessee’s anti-drag law unconstitutional<figure><img src="https://images.theconversation.com/files/530696/original/file-20230607-25-wckg1a.jpeg?ixlib=rb-1.1.0&rect=22%2C0%2C5051%2C3395&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A drag show in Nashville, Tenn., during Day One of Nashville Pride 2022. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/general-view-of-drag-performances-on-the-equality-stage-news-photo/1405156791?adppopup=true">Mickey Bernal/Getty Images</a></span></figcaption></figure><p>The drag shows will go on. At least for now.</p>
<p>On June 2, 2023, Judge Thomas Parker, a Trump-appointed federal district court judge in western Tennessee, ruled that Tennessee’s “Adult Entertainment Act” <a href="https://storage.courtlistener.com/recap/gov.uscourts.tnwd.98391/gov.uscourts.tnwd.98391.91.0.pdf">violated the First Amendment’s free speech protection</a>. </p>
<p>The <a href="https://www.capitol.tn.gov/Bills/113/Amend/HA0011.pdf">act had been passed</a> by the Tennessee Legislature and signed into law by Tennessee Gov. Bill Lee in March 2023. The law gained <a href="https://www.cnn.com/2023/03/02/politics/tennessee-ban-drag-show-performances-governor/index.html">national attention</a> because it appeared designed to limit drag performances through regulation of “male and female impersonators.”</p>
<p>Parker provided several grounds for concluding that the law is unconstitutional. Using <a href="https://clasprofiles.wayne.edu/profile/hf1190">my experience as a First Amendment scholar</a>, below I explain how Judge Parker reached those conclusions and what they mean for Tennessee’s law. </p>
<h2>Speech protections</h2>
<p>The <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a> of the U.S. Constitution protects, among other things, free speech. </p>
<p>As Parker noted at the beginning of his opinion, “Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.” </p>
<p>Freedom of speech protects more than just speech, in the colloquial sense. It also protects many other ways that people express themselves, such as by waving a flag, marching in a parade or dancing. </p>
<p>Drag shows typically consist of various forms of protected speech, like dancing, acting, lip-syncing, telling jokes and wearing elaborate outfits designed to send messages. Thus, any law seeking to limit drag performances raises important questions about whether that law violates the First Amendment.</p>
<p>Not all speech is protected by the First Amendment. Freedom of speech does not include the right to engage in, for example, perjury, defamation or threats of violence. </p>
<p>Freedom of speech also doesn’t protect the narrow category of legally defined obscenity. <a href="https://tile.loc.gov/storage-services/service/ll/usrep/usrep413/usrep413015/usrep413015.pdf">According to the Supreme Court</a>, something is legally obscene only if, applying contemporary community standards, a reasonable person would find that the work, when viewed holistically, appeals to prurient interests, contains patently offensive content, and lacks any serious literary, artistic, political or scientific value. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A gray-haired man in a dark blazer, white shirt and red tie." src="https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530698/original/file-20230607-29-q5kmka.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Tennessee Gov. Bill Lee signed the drag ban legislation that was overturned by a federal judge.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DragBanTennessee/8fcbde14c72e49c9a02f145a10459f6b/photo?Query=Bill%20Lee%20Tennessee%20drag&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=2&currentItemNo=0">AP Photo/George Walker IV, File</a></span>
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</figure>
<p>Thus, as Parker noted, “there is a difference between material that is ‘obscene’ in the vernacular, and material that is ‘obscene’ under the law,” and the law imposes “an exceptionally high standard” for what counts as legally obscene. </p>
<p>The clearest example of sexually explicit material that does not receive First Amendment protection is <a href="https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-child-pornography">child pornography</a>. But the precise boundaries of what counts as legal obscenity are vague. Many kinds of sexually explicit material are not deemed legally obscene because it has often been relatively easy for litigants to convince modern courts that the material in question has serious literary, artistic, political or scientific value. </p>
<h2>Tennessee’s anti-drag law</h2>
<p>Tennessee’s <a href="https://www.capitol.tn.gov/Bills/113/Amend/HA0011.pdf">Adult Entertainment Act</a> would have made it a crime “to perform adult cabaret entertainment” on “public property” or anywhere it “could be viewed by a person who is not an adult.” </p>
<p>The act defined “adult cabaret entertainment” to include performances by “male or female impersonators” that are deemed “harmful to minors.” The act’s definition of “harmful to minors” came from <a href="https://codes.findlaw.com/tn/title-39-criminal-offenses/tn-code-sect-39-17-901/">existing Tennessee legal code</a>. That code was based on the U.S. Supreme Court’s criteria for legal obscenity.</p>
<p>However, that Tennessee legal code modified the standard of legal obscenity so that it applied specifically “for minors.” So, for example, rather than designating as obscene certain speech that lacked “serious literary, artistic, political or scientific value,” full stop, Tennessee’s standard applied to certain speech that lacked “serious literary, artistic, political or scientific value for minors.” </p>
<p>On March 31, Parker <a href="https://www.nbcnews.com/nbc-out/out-news/judge-halts-tennessees-drag-ban-law-rcna77743">temporarily blocked</a> the law from taking effect. His final ruling on June 2 permanently barred enforcement of it in Tennessee’s Shelby County on the grounds that it was an unconstitutional violation of the First Amendment. The reason his ruling applied only to Shelby County is that the sole defendant at that stage in the case was Shelby County’s district attorney, whose authority to enforce the law is limited to that county. </p>
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<a href="https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A person with fist raised, speaking in public outside a columned building." src="https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/530699/original/file-20230607-27-to3dri.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Drag artist Vidalia Anne Gentry at a news conference held by the Human Rights Campaign to draw attention to anti-drag bills in the state Legislature, Feb. 14, 2023, in Nashville, Tenn.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/DragBanTennessee/b8a90a53e4d0486f85acda4375d5d73b/photo?Query=tennessee%20legislature&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=464&currentItemNo=1">John Amis/AP Images for Human Rights Campaign via AP, File</a></span>
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<h2>Unconstitutional restriction</h2>
<p>Parker determined that the law targeted more than just legally obscene speech; it also targeted speech protected under the First Amendment.</p>
<p>The Supreme Court has set very high standards for when regulation of protected speech can discriminate based on <a href="https://constitution.findlaw.com/amendment1/content-and-viewpoint-based-regulation-of-speech.html">the speech’s content or viewpoint</a>. </p>
<p>Content discrimination restricts speech based on subject matter. Viewpoint discrimination restricts speech based on the position taken. So, for example, a ban on speech about elections would discriminate based on content, while a ban on speech that is negative about a particular political candidate would discriminate based on viewpoint.</p>
<p>Parker concluded that the Tennessee law discriminated based on both the speech’s content and its viewpoint. </p>
<p>He concluded that it discriminated based on content because it specifically targets “adult-oriented performances that are harmful to minors” and discriminates based on viewpoint because it specifically targets the speech of “male and female impersonators.”</p>
<p>To make the point that the law discriminated based on viewpoint, Parker used an example of two Elvis impersonators dressed in revealing but nonobscene outfits. If one performer were male and the other female, the law would have made it more likely that the female Elvis impersonator would be subject to prosecution than the male Elvis impersonator. That discriminates against certain expressions of gender identity.</p>
<p>Laws that discriminate based on viewpoint are subject to the highest standard of judicial review, known as strict scrutiny, which requires laws to be “narrowly tailored” and “well defined.” Parker concluded that the law was neither. On this basis, he also concluded that it failed to meet the high standard of review and was unconstitutional. </p>
<p>He noted instead that on any plausible reading of the law, it “criminally sanctions qualifying performers virtually anywhere,” including those performing in “private events at people’s homes or arguably even age-restricted venues.” He also wrote that the law appeared designed for the “impermissible purpose” of “chilling constitutionally-protected speech.”</p>
<h2>Vague and overbroad</h2>
<p>A <a href="https://www.law.cornell.edu/wex/vagueness_doctrine">vague law can violate a person’s rights</a> because it can be hard to tell if one is breaking the law.</p>
<p>Parker found the “harmful to minors” standard unconstitutionally vague because what is harmful for different minors can change drastically depending on the minor. Consider, for example, the differences between a 5-year-old and a 17-year-old. He also concluded that the law was overbroad because it covered, or could reasonably be interpreted to cover, many types of protected speech.</p>
<h2>Looking ahead</h2>
<p>Parker’s ruling barred enforcement of the law only in Shelby County. However, his reasoning regarding the unconstitutionality of the law would apply equally well to any challenge brought against the law anywhere in Tennessee. Parker’s reasoning may also prove persuasive to judges assessing other anti-drag laws in other states.</p><img src="https://counter.theconversation.com/content/207102/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Satta does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The law passed by Tennessee legislators that banned many drag performances violated the First Amendment. A legal scholar explains the judge’s decision in the case.Mark Satta, Assistant Professor of Philosophy, Wayne State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2067492023-06-02T02:53:04Z2023-06-02T02:53:04ZAustralian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story<p>On Thursday, Justice Anthony Besanko of the Federal Court dismissed defamation proceedings brought by former Special Air Service soldier Ben Roberts-Smith against several Australian news outlets. </p>
<p>The court found that reporting by Nick McKenzie, Chris Masters and David Wroe had satisfactorily established the truth of several serious imputations against Roberts-Smith. These included claims he committed war crimes during his service in Afghanistan. </p>
<p>The judgement is a landmark moment in Australian military history, with implications for the investigation and potential prosecution of other Australians suspected of war crimes. The explosive evidence heard in the case also underlines the need for the Army, the broader defence community and the Australian public to reckon fully with the conduct of Australian forces in the Afghanistan campaign.</p>
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Read more:
<a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?</a>
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<h2>Standards of proof and evidence</h2>
<p>Roberts-Smith could conceivably face criminal prosecution for the alleged murders at a future war crimes trial. This case was a civil proceeding, meaning the imputations only needed to be proven true on the balance of probabilities, a substantially lower requirement than proof beyond a reasonable doubt, which would be required in a criminal trial.</p>
<p>Because of the different standards of proof, it is not certain Roberts-Smith would be found guilty in a war crimes trial, assuming all the same evidence was called. Prosecutors will be concerned, moreover, that the outcome of the high-profile defamation trial might influence a future war crimes proceeding. </p>
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<p>It is likely any criminal trial for Roberts-Smith will be held before a judge, without a jury. It is not unusual for a war crimes trial to be held without a jury; past Australian trials were held before a panel of three to five judges, all of whom were military officers.</p>
<p>Another way to overcome the problem of the defamation outcome poisoning a future criminal trial in Australia would be for the government to hand Roberts-Smith over to the International Criminal Court in the Hague, a court with long experience in dealing with very high profile war crimes cases. However, doing so would probably be deeply unpopular and signal to the world that Australia cannot dispense its own military justice.</p>
<h2>Contextual truth</h2>
<p>Some imputations against Roberts-Smith were not substantiated at the defamation trial. However, Justice Besanko found that these defamatory statements, which concerned threatening a fellow soldier and domestic violence, were nonetheless contextually true. This ruling means the newspapers are not liable for these imputations because the more injurious claims, including war crimes, were found to be true, so the defendant would suffer no further reputational damage.</p>
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<h2>Broader implications</h2>
<p>It remains to be seen what the full reaction to Thursday’s judgement will be. Roberts-Smith still holds the Victoria Cross, the country’s highest military honour. He received financial support for the case from Kerry Stokes – who, from 2015 to 2022, was chair of the Australian War Memorial. Stokes allegedly referred to McKenzie and Masters as “<a href="https://www.smh.com.au/business/companies/seven-billionaire-kerry-stokes-blasts-scumbag-journalists-over-roberts-smith-coverage-20221110-p5bx6g.html">scumbag journalists</a>”. </p>
<p>While the memorial as an institution did not support Roberts-Smith with the case, <a href="https://www.theguardian.com/australia-news/2021/apr/12/kerry-stokes-to-remain-war-memorial-chair-despite-criticism-of-his-support-for-ben-roberts-smith">Stokes remained as chair</a> even after his role was publicly questioned. The interpretation from some quarters that reporting on Roberts-Smith constitutes unfair criticism of a war hero will persist. Others, of course, will see it as exactly the job investigative reporting is meant to do.</p>
<p>The Australian Defence Force has taken the allegations brought forward by journalists and other sources seriously. It commissioned Paul Brereton’s Afghanistan inquiry and appears to accept that the conduct of some Australian personnel was potentially illegal.</p>
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Read more:
<a href="https://theconversation.com/why-investigating-potential-war-crimes-in-afghanistan-just-became-much-harder-and-could-take-years-171412">Why investigating potential war crimes in Afghanistan just became much harder – and could take years</a>
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<p>While the findings in the defamation case support the ADF’s position that an inquiry was needed, the case was not a “<a href="https://www.reuters.com/world/asia-pacific/australian-defamation-court-proxy-war-crimes-trial-nears-judgement-2023-05-30/">proxy war crimes trial</a>”. It does not deliver justice for alleged war crimes. Only properly convened war crimes trials can answer the questions that hover over Australian conduct in Afghanistan, <a href="https://theconversation.com/why-australian-commanders-need-to-be-held-responsible-for-alleged-war-crimes-in-afghanistan-151030">including the role of commanding officers</a>.</p>
<p>War crimes trials, however, take significant institutional momentum to convene and sustain: they are costly, long-running and controversial. The challenge for the ADF now is to continue to support the thorough investigation of alleged war crimes and to pursue criminal prosecution where it is warranted. </p>
<p>Since the second world war, Australia has positioned itself internationally as a champion of the laws and proper conduct of war. Australian forces have been deployed to many difficult conflicts, where they have largely been trusted operators. </p>
<p>The judgement in this case ought to have minimal impact on Australian forces who are deployed overseas, as following the rules of war is assumed to be part of any mission they undertake. If the case does come as a wake-up call to some, then the ADF will have to further assess its training on the laws of war, its leadership, and its culture. </p>
<p>The Roberts-Smith case, the finding against him and the graphic detail in the publicly available evidence made headlines around the world. If public faith in the ADF is to be restored, together with its international reputation, there must now be an exhaustive process of investigation and prosecution of any war crimes committed in Afghanistan.</p><img src="https://counter.theconversation.com/content/206749/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dean Aszkielowicz has previously received funding from The Army Research Scheme.</span></em></p><p class="fine-print"><em><span>Paul Taucher does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The explosive evidence heard in the case also underscores the need for the Army and the Australian public to reckon fully with the conduct of Australian forces in the Afghanistan campaign.Dean Aszkielowicz, Lecturer, Murdoch UniversityPaul Taucher, Lecturer, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1915032023-06-01T08:28:50Z2023-06-01T08:28:50Z‘Dismissed’: legal experts explain the judgment in the Ben Roberts-Smith defamation case<p>Today, Federal Court Justice Anthony Besanko <a href="https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-loses-defamation-case-with-judge-saying-newspapers-established-truth-of-some-murders">handed down</a> his long-awaited judgment in the <a href="https://www.theage.com.au/national/110-days-41-witnesses-and-15-key-questions-to-answer-what-the-ben-roberts-smith-case-was-about-20230209-p5cjdp.html">defamation case</a> that Ben Roberts-Smith, Australia’s most decorated living former SAS soldier, brought against the Age, the Sydney Morning Herald and the Canberra Times.</p>
<p>The civil trial ended in July 2022 after an astonishing 110 days of evidence and legal submissions. The case was also interrupted by COVID lockdowns.</p>
<p>Besanko determined the newspapers did establish the “substantial truth” of some of the allegations, though not of others. He concluded that in light of these findings, “each proceeding must be dismissed”.</p>
<p>In his judgment, the judge said he was satisfied the most serious imputations were proven on the balance of probabilities, which is the test in such civil cases.</p>
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Read more:
<a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?</a>
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<p>This included allegations Roberts-Smith, in an area known as Darwan in 2012, <a href="https://www.theage.com.au/national/ben-roberts-smith-under-police-investigation-for-kicking-handcuffed-afghan-off-small-cliff-20190910-p52pys.html">kicked</a> a handcuffed prisoner over a cliff and ordered other soldiers to shoot him.</p>
<p>Justice Besanko also found the papers established substantial truth in the <a href="https://www.theguardian.com/australia-news/2023/may/30/the-ben-roberts-smith-allegations-war-crimes-domestic-violence-defamation-case-trial">allegations</a> that in 2009 in the village of Kakarak, Roberts-Smith carried a man with a prosthetic leg to a place outside the Whiskey 108 compound and shot him dead. </p>
<p>Further claims were made that Roberts-Smith had <a href="https://www.theage.com.au/national/ben-roberts-smith-case-live-updates-commonwealth-application-seeks-to-delay-historic-defamation-judgment-involving-former-australian-sas-soldier-20230601-p5dd37.html">forced</a> a young recruit to execute an unarmed elderly man as a form of “blooding”, which Besanko also found to be substantially true.</p>
<p>All of these allegations were particularly galling to a man who had been awarded the <a href="https://cove.army.gov.au/article/highest-honour-39-ben-roberts-smith-james-rogers">Medal of Gallantry</a> for his actions in Afghanistan in 2006, the <a href="https://www.awm.gov.au/collection/C1270259">Victoria Cross</a> for his bravery in Tizak in 2010, and a <a href="https://www.awm.gov.au/collection/C2087814">Commendation for Distinguished Services</a> for his outstanding leadership in more than 50 high-risk operations in 2012.</p>
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<h2>Substantial and contextual truth</h2>
<p>The legal battle began after a series of articles were published in the Sydney Morning Herald, the Canberra Times and the Age in 2018, alleging that Roberts-Smith, a patrol commander with the Special Air Service Regiment, was a war criminal. </p>
<p>The allegations were based upon witnesses’ accounts of events that took place in Afghanistan between 2006 and 2012. </p>
<p>The newspapers also alleged he had bullied, harassed and intimidated soldiers under his command, and that he committed an act of domestic violence in 2018. </p>
<p>Besanko also found allegations of <a href="https://www.theguardian.com/australia-news/2023/jun/01/ben-roberts-smith-loses-defamation-case-with-judge-saying-newspapers-established-truth-of-some-murders">bullying</a> by Roberts-Smith to be substantially true, but did not find that the newspapers had established the substantial truth of the domestic violence allegations.</p>
<p>The allegations of domestic violence and threats were held to warrant the defence of “contextual truth”. That is, given the newspapers had proved the most serious allegations were substantially true, they could rely on the defence of “contextual truth”. This meant Besanko was satisifed the domestic violence allegations would not further harm Roberts-Smith’s reputation, even though the claims weren’t proven to be substantially true.</p>
<p>The “contextual” truth changes came in a push to have uniformity in defamation laws back in 2005.</p>
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<p>According to Australian common law, a statement is defamatory if it exposes a person to hatred, contempt or ridicule, or would tend to make right-minded observers shun or avoid that person. Saying a decorated soldier is a war criminal invariably drew the papers deep into potentially defamatory territory.</p>
<p>The papers had to establish a defence, and their defence was that all of what they had reported was true. </p>
<p>Under the law, they needed only to show the “substantial” truth of what they had alleged. A defendant is thus given some leeway; they do not have to prove every last item is completely true.</p>
<p>Because the papers were able to establish the substantial truth of key aspects of the reporting, Roberts-Smith’s case failed.</p>
<p>Roberts-Smith’s lawyers, who were <a href="https://www.smh.com.au/national/stokes-funded-ben-roberts-smith-s-defence-out-of-public-company-funds-20210412-p57iia.html">funded by Seven West Media chairman Kerry Stokes</a>, claimed that some of the witnesses’ testimonies could not be relied upon. </p>
<p>In one case, the lawyers argued this was because the claims were framed in jealousy and based upon an “<a href="https://www.abc.net.au/news/2022-03-17/soldier-denies-trying-to-blacken-ben-roberts-smith-name/100917076">obsession</a>” with their leader, and in another case that witnesses were “<a href="https://www.smh.com.au/national/hero-or-psychopath-the-stark-binary-at-the-heart-of-the-ben-roberts-smith-case-20210607-p57ywa.html">fabulists</a>” and “fantasists”.</p>
<p>However, the imputations supported by the oral evidence of nearly all the witnesses were held to be reliable by Besanko.</p>
<h2>What happens next?</h2>
<p>It will now be up to the judge, in a further hearing, to determine how much the newspapers will be able to claim back from Roberts-Smith for their reasonable legal costs.</p>
<p>The newspapers requested three weeks to consider how much to seek for costs and third-party costs.</p>
<p>There’s little doubt that both sides have each spent millions on their respective legal teams. The issue of costs may prove just as interesting for observers as the defamation case itself.</p>
<p>Roberts-Smith’s barrister has already raised the possibility that <a href="https://twitter.com/Kate_McClymont/status/1664130451869663232">he will appeal</a>.</p>
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Read more:
<a href="https://theconversation.com/friday-essay-why-soldiers-commit-war-crimes-and-what-we-can-do-about-it-185391">Friday essay: why soldiers commit war crimes – and what we can do about it</a>
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<img src="https://counter.theconversation.com/content/191503/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is an office bearer with the SA Labor Party.
</span></em></p><p class="fine-print"><em><span>Ricardo Villegas does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In his judgment, the judge said he was satisfied the most serious imputations were proven on the balance of probabilities, which is the test in such civil cases.Ricardo Villegas, Senior Lecturer of Law, University of South AustraliaRick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2067592023-06-01T06:08:12Z2023-06-01T06:08:12ZA win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?<p>At the heart of the spectacular defamation trial brought by decorated Australian soldier Ben Roberts-Smith were two key questions. </p>
<p>Had the Age, the Sydney Morning Herald and the Canberra Times damaged his reputation when they published in 2018 a series of explosive stories accusing him of murder and other crimes while in Afghanistan? </p>
<p>And could the newspapers successfully defend their reporting as true?</p>
<p>Today, in Sydney, Federal Court Justice Anthony Besanko found the newspapers were indeed able to establish the “substantial truth” of key allegations around killing of unarmed Afghan male prisoners. </p>
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<p>An <a href="https://twitter.com/Kate_McClymont/status/1664130451869663232">appeal</a> may still be on the cards, but this is a high-profile loss for a very prominent person. The costs will be substantial. The usual rule is that the losing party pays their own costs and those of the winning party.</p>
<p>So, even though people say defamation law in Australia has a reputation for favouring plaintiffs, this case shows even plaintiffs do sometimes lose defamation cases in Australia.</p>
<p>More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation. Once a case begins, you never can control what will be said in court.</p>
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Read more:
<a href="https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143">Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations</a>
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<h2>What was this case about?</h2>
<p>The case centred on several defamatory meanings (or, as they’re known in defamation law, “<a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/ben-roberts-smith">imputations</a>”) that Roberts-Smith said the papers had made against him.</p>
<p>Among these were that he’d <a href="https://www.theage.com.au/national/110-days-41-witnesses-and-15-key-questions-to-answer-what-the-ben-roberts-smith-case-was-about-20230209-p5cjdp.html">killed</a> unarmed Afghan male prisoners and ordered junior soldiers to execute others in Afghanistan between 2006 and 2012.</p>
<p>Roberts-Smith denied wrongdoing, but the newspapers had pleaded a defence of truth. That means to win this case, they needed to prove the meanings conveyed by their reporting – even if those meanings were unintended – were true.</p>
<p>Besanko, reading a summary judgment today, said the newspapers were able to establish the substantial truth of some of the most serious imputations in the case. </p>
<p>For other imputations, Besanko found the newspapers were able to establish “contextual truth”. </p>
<p>Substantial truth means what is sounds like – that the allegation published was, in substance, true. Defamation law does not require strict, complete or absolute accuracy. Minor or inconsequential errors of detail are irrelevant. What matters is: has the publisher established what they published was, in substance, true?</p>
<p>Contextual truth is a fallback defence. The court has to weigh what has been found to be true against what has been found to be unproven. If the true statements about the plaintiff were worse than the unproven statements, then the plaintiff’s reputation was not overall damaged by the unproven statements, and the publisher has a complete defence.</p>
<p>In other words, Besanko found most of the imputations to be true. And, when considered against those which were not proven to be true, the remaining unproven imputations did not damage Roberts-Smith’s reputation.</p>
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Read more:
<a href="https://theconversation.com/lachlan-murdoch-could-well-have-won-his-crikey-lawsuit-so-why-did-he-drop-it-204279">Lachlan Murdoch could well have won his Crikey lawsuit, so why did he drop it?</a>
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<h2>What does this case tell us about defamation in Australia?</h2>
<p>The court heard several explosive claims during the course of this trial, including that evidence on USB sticks had been put into a <a href="https://www.theguardian.com/australia-news/2021/aug/13/court-hears-ben-roberts-smiths-ex-wife-dug-up-usb-sticks-from-family-backyard">lunchbox and buried</a> in a backyard and that Roberts-Smith had allegedly <a href="https://www.theguardian.com/australia-news/2022/may/13/woman-who-says-ben-roberts-smith-punched-her-sustained-an-injury-in-a-fall-earlier-on-same-night-defamation-trial-hears">punched a woman</a> in their hotel room.</p>
<p>Roberts-Smith said he didn’t bury the USBs or withhold information from a war crimes inquiry and denied that he had punched the woman. </p>
<p>But the fact this widely scrutinised case yielded such astonishing testimony, day in and day out, shows how risky it is to use defamation law to restore perceived injury to one’s reputation.</p>
<p>Defamation law is seeking to correct people’s views about the plaintiff. But it’s open to doubt that defamation law is actually any good at securing its own stated purpose of changing people’s minds about the plaintiff.</p>
<p>The problem is the law is a very blunt instrument. It’s very hard to get people to change their minds about what they think of you.</p>
<p>All litigation involves risk and defamation trials are even riskier. You never can control what can come out in court, as this litigation demonstrates so clearly.</p>
<p>Roberts-Smith has sued to protect his reputation, but in doing so, a range of adverse things have been said in court. And whatever is said in court is covered by the defence of absolute privilege; you can’t sue for defamation for anything said in court that is reported accurately and fairly.</p>
<h2>The 2021 defamation law reforms</h2>
<p>The law that applies in the Roberts-Smith case is the defamation law we had before major reforms introduced in July 2021 across most of Australia.</p>
<p>These reforms introduced a new defence known as the public interest defence. To use this defence, a publisher has to demonstrate that they reasonably believed the matter covered in their published material is in the public interest.</p>
<p>As this defence didn’t exist prior to 2021, the publishers in the Roberts-Smith case used the defence of truth.</p>
<p>If a case like this were litigated today following these reforms, it is highly likely the publisher would use the new public interest defence. </p>
<p>Given the <a href="https://theconversation.com/lachlan-murdoch-could-well-have-won-his-crikey-lawsuit-so-why-did-he-drop-it-204279">Murdoch versus Crikey</a> case was settled, we may yet wait some time to see what’s required to satisfy the public interest test in a defamation case.</p>
<p>But as today’s decision demonstrates, sometimes the truth alone will prevail.</p>
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Read more:
<a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages</a>
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<img src="https://counter.theconversation.com/content/206759/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph has received funding in the past from the ARC. </span></em></p>More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation. Once a case begins, you never can control what will be said in court.David Rolph, Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2053812023-05-10T02:01:31Z2023-05-10T02:01:31ZYou might think Trump being found liable for sexual abuse and defamation would derail his re-election campaign. But it’s not that simple<figure><img src="https://images.theconversation.com/files/525262/original/file-20230509-30091-7gs3xu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Charles Krupa/AP/AAP</span></span></figcaption></figure><p>The day after Donald Trump was inaugurated as President of the United States in 2017, women took to the streets in protest. In varying states of fury and disbelief, millions of women and their supporters participated in the first Women’s March. The seas of pink hats in streets across America, and the world, attempted to reclaim power and agency from a man who, the day before, had become one of the most powerful men in the world – and who had bragged, openly and unashamedly, about assaulting women. </p>
<p>To date, <a href="https://www.businessinsider.com/women-accused-trump-sexual-misconduct-list-2017-12">26 women</a> have accused the former and once again aspiring president of abuse. Overnight, for the very first time, five years after that first protest, Trump has been held accountable to one of them. </p>
<p>E. Jean Carroll first made her accusations against the president public in her <a href="https://us.macmillan.com/books/9781250215437/whatdoweneedmenfor">2019 memoir</a>. Carroll described meeting Trump at the Bergdorf Goodman department store in Manhattan the mid-1990s, where Trump had attacked and, she alleged, raped her in a dressing room. </p>
<p>The president accused her of fabricating the story in order to promote her book, and in response, she sued for defamation. Carroll sued him again in late 2022, this time over posts Trump had made on social media. This time, <a href="https://www.nytimes.com/live/2023/05/09/nyregion/trump-carroll-rape-trial-verdict">she won</a>. </p>
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<p>In New York – also the site of Trump’s recent indictment in a separate criminal case – a jury unanimously agreed that Trump was liable for sexual abuse and battery, and that he had also defamed Carroll. Importantly, the jury stopped short of finding Trump had raped her. Nevertheless, it did recommend she be awarded US$5 million (A$7.4 million) in damages – $2 million for the abuse, and $3 million for defamation. </p>
<p>Predictably, Trump has <a href="https://thehill.com/blogs/blog-briefing-room/3996357-trump-calls-e-jean-carroll-verdict-a-disgrace/">responded with all-caps fury</a> on his struggling social media platform, Truth Social. The former president claims this verdict is yet another part of a wide-ranging conspiracy against him, and that he will, of course, fight it. </p>
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<p>There’s no doubt he will, or that he will almost certainly use his tried-and-true tactics of delaying cases and threatening countersuits. Because it is Trump, this case will no doubt be folded in under the tent of the circus we have become so inured to since he first rode down the golden escalator in 2015. </p>
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<strong>
Read more:
<a href="https://theconversation.com/what-does-trumps-indictment-mean-for-his-political-future-and-the-strength-of-us-democracy-202231">What does Trump's indictment mean for his political future – and the strength of US democracy?</a>
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<p>Even then, as he announced his campaign for the presidency nearly a decade ago, Trump cavalierly spoke about sexual abuse, making the racist and false claim that Mexico was sending drugs, criminals and rapists to the United States. The incredulity that greeted that claim, and later, the recording of Trump saying that he could “grab ‘em by the pussy” whenever he wanted, still lingers. How could such a man be elected president of the most powerful country in the world? Today, the question isn’t all that different – could he do it again? </p>
<p>It is certainly possible that the second time around, the accusations of abuse and criminal misconduct – and now the finding of a jury in New York that Trump is liable for at least some of it – will hurt him politically. There is a creeping sense that the multitude of criminal and civil cases the former president is facing, and has managed to hold off for most of his life, are finally closing in; that a pincer movement of state, federal and civil suits might finally signal the end of his political career. </p>
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<img alt="" src="https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/525264/original/file-20230510-17-wf2cww.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Writer E. Jean Carroll leaves court after winning her civil case against Donald Trump on sexual abuse and defamation.</span>
<span class="attribution"><span class="source">John Minchillo/AP/AAP</span></span>
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<p>But, as always with Trump, there is much more at stake than his individual political fate. In 2017, millions of women took to the streets to protest the new president. They were also reacting to something much bigger – to an ongoing misogynist and racist assault on women’s rights and autonomy that, in the years since, Trump and the political movement that supports him have deliberately enabled. </p>
<p>In fact, much of the support that swept Trump into power in the first place was predicated on his promise to give conservatives the Supreme Court, as part of a generational project to undermine and overturn Roe v Wade – the 1970s court decision that protected women’s rights to abortion. </p>
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Read more:
<a href="https://theconversation.com/us-supreme-court-overturns-roe-v-wade-but-for-abortion-opponents-this-is-just-the-beginning-185768">US Supreme Court overturns Roe v. Wade – but for abortion opponents, this is just the beginning</a>
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<p>Many of the women and their supporters marching in 2017 knew that Trump’s gleeful boasting about abusing women and the broader, longstanding efforts to undermine women’s rights and autonomy, were two sides of the same coin. </p>
<p>Trump’s ability to get elected even in the face of 26 accusations of sexual assault were enabled by the structural conditions of American politics and culture. Those same structural conditions allowed the Supreme Court to overturn Roe v. Wade in the face of overwhelming democratic opposition, and continue to allow states to pass draconian and oppressive laws preventing women and minorities access to health care. </p>
<p>E. Jean Carroll’s victory over Trump is a significant one. But it is only one part of a much bigger fight against the racism and misogyny of American politics – a fight that is about, and has always been about, much more than just one obscene old man.</p><img src="https://counter.theconversation.com/content/205381/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Shortis is a member of the Independent and Peaceful Australia Network (IPAN).</span></em></p>As always with Trump, there is much more at stake than his individual political fate.Emma Shortis, Lecturer, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2052762023-05-09T11:36:33Z2023-05-09T11:36:33ZTrump found liable for assaulting, defaming E. Jean Carroll – after a trial where he relied on a discredited myth about how women should react to rape<figure><img src="https://images.theconversation.com/files/524957/original/file-20230508-29-z1thnn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">E. Jean Carroll arrives for the first day of her civil trial against former President Donald Trump on April 25, 2023. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1485108757/photo/jury-selection-begins-in-magazine-columnist-e-jean-carrolls-rape-allegation-trial-against.jpg?s=1024x1024&w=gi&k=20&c=mF1BZzhsE6ZNxGQyYMDP3R3xtl6ZV-U5Ia0QG7I6mnM=">Michael M. Santiago/Getty Images</a></span></figcaption></figure><p>A Manhattan jury has found that <a href="https://www.nytimes.com/live/2023/05/09/nyregion/trump-carroll-rape-trial-verdict">former President Donald Trump sexually abused journalist</a> E. Jean Carroll in the 1990s and defamed her by saying that she had lied about the assault. The jury, which announced its verdict on May 9, 2023, awarded Carroll US$5 million in damages.</p>
<p>Trump’s legal team ended its closing arguments in his rape trial on May 8 by saying that Carroll <a href="https://www.theguardian.com/us-news/2023/may/08/trump-e-jean-carroll-closing-arguments-rape-trial">was lying about the alleged decades-old assault</a>.</p>
<p>Carroll filed a <a href="https://www.reuters.com/world/us/closing-arguments-set-rape-defamation-suit-against-trump-2023-05-08/">lawsuit in 2022</a>, claiming that <a href="https://www.cnn.com/2023/05/08/politics/trump-carroll-closing-arguments/index.html">Trump had raped her and then defamed her</a> with his denials. </p>
<p>Trump has always denied <a href="https://www.theguardian.com/us-news/2023/may/08/trump-e-jean-carroll-closing-arguments-rape-trial">that the encounter with Carroll ever took place</a>.</p>
<p>While cross-examining Carroll, Trump’s attorney, Joseph Tacopina, suggested she only came forward with her allegations, in 2019, “<a href="https://www.pbs.org/newshour/politics/trump-lawyer-cross-examines-e-jean-carroll-at-rape-trial">because of her disdain</a> for Trump’s politics and because she wanted to sell copies of her book.”</p>
<p>Tacopina <a href="https://www.nytimes.com/2023/05/02/nyregion/trump-rape-trial-carroll-tacopina.html">also asked</a> Carroll, 79, why she did not scream, <a href="https://www.nytimes.com/2023/05/02/nyregion/trump-rape-trial-carroll-tacopina.html">call the police</a> or <a href="https://www.npr.org/2023/04/28/1172684266/trump-attorney-asks-e-jean-carroll-why-it-took-decades-to-accuse-his-client-of-r">recall</a> the date and time of the alleged assault, which she says took place in a Bergdorf Goodman department store dressing room in Manhattan in 1996.</p>
<p>“I’m telling you, <a href="https://www.nytimes.com/2023/04/27/nyregion/trump-e-jean-carroll-rape-trial.html">he raped me</a>, whether I screamed or not,” Carroll said in court on April 27.</p>
<p>As a <a href="https://scholar.google.com/citations?user=v5XJzfUAAAAJ&hl=en">researcher who has studied violence against women</a> for more than two decades, I can tell you that this line of questioning reinforced common myths about sexual assault that have been perpetuated in other high-profile sexual assault cases, such as those of comedian <a href="https://www.nytimes.com/2018/04/09/arts/cosby-trial-juror-protest.html">Bill Cosby</a> and Hollywood mogul <a href="https://www.latimes.com/california/story/2020-02-11/weinstein-defense-flips-the-narrative-he-didnt-abuse-accusers-the-accusers-used-him">Harvey Weinstein</a>.</p>
<p>It’s a common refrain, but one without merit.</p>
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<a href="https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An older woman wears a beige outfit and stands in the woods in front of a low lying house." src="https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524959/original/file-20230508-186646-j4lahj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">E. Jean Carroll, shown at her home in New York state in 2019.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1151914999/photo/e-jean-carroll-at-her-home-in-new-york-state.jpg?s=1024x1024&w=gi&k=20&c=IaIm1pgnbHtte-YIcR9_I5LQV4ugTvvA4H5bF3faq3E=">Eva Deitch for The Washington Post/Getty Images</a></span>
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<h2>Myths about responses to sexual assault</h2>
<p>Over several decades, researchers have documented myths about sexual assault – referred to as <a href="https://doi.org/10.1111/j.1471-6402.1994.tb00448.x">rape myths</a> – that are both common and persistently held.</p>
<p>Like the line of questioning directed at Carroll, rape myths imply that “real” sexual assault can be distinguished from false accusations based on how women responded to the assault.</p>
<p>For example, myths that “real” victims will fight back and call the police right away are common. Rape myths are so prevalent that they can even be detected among people with training on sexual assault, such as <a href="https://doi.org/10.1037/vio0000072">law enforcement officers</a> and <a href="https://doi.org/10.1177/0886260520951303">crime lab personnel</a>. In turn, rape myths have serious consequences for decision-making in cases, even in terms of whether or not <a href="https://doi.org/10.1080/15564886.2015.1046622">cases are dismissed</a>.</p>
<p>Contrary to myths, though, people respond in diverse ways when they experience traumatic events, including sexual assault. Certainly, some people fight back, as Carroll <a href="https://www.nytimes.com/2023/04/27/nyregion/trump-e-jean-carroll-rape-trial.html">testified she did</a>. However, other people may appear conciliatory or passive. The range of responses that people have during traumatic events, referred to as <a href="https://psycnet.apa.org/record/2015-30922-003">flight, fight or freeze</a>, can be affected by automatic processes, such as stress hormones that are released in response to threat. </p>
<p>People also vary in how they act after sexual assault, such as whether or not they call the police or seek medical care. <a href="https://www.nytimes.com/2023/05/02/nyregion/trump-rape-trial-carroll-tacopina.html">Carroll testified</a> on May 2, regarding her behavior, saying, “Women like me were taught and trained to keep our chins up and to not complain.”</p>
<p>“The fact that I never went to the police is not surprising for someone my age,” said Carroll, who was about 52 years old at the time of the alleged assault.</p>
<p>It’s actually not surprising for women of many ages. Indeed, a <a href="https://bjs.ojp.gov/content/pub/pdf/cv16.pdf">vast majority</a> of rapes go unreported to law enforcement, even though people <a href="https://doi.org/10.1177/0886260517742149">may disclose</a> what happened to friends, family or other informal support people in their lives.</p>
<h2>Myths about responses to disclosure</h2>
<p>Women have <a href="https://doi.org/10.1891/0886-6708.VV-D-18-00118">many reasons</a> for disclosing – or <a href="https://doi.org/10.1007/s10896-020-00141-9">not disclosing</a> – sexual harassment and assault, including to try to prevent others from being harmed, find safety or get help. </p>
<p>After all, research shows that sexual assault can <a href="https://ncvc.dspacedirect.org/handle/20.500.11990/503">take a serious toll</a> on all aspects of survivors’ lives, from their physical and psychological health to their careers and education. Despite the costs to survivors, those who seek monetary compensation are often met with suspicion. </p>
<p>In 2015, a <a href="https://journals-sagepub-com.du.idm.oclc.org/doi/full/10.1177/0886260515584342">team of researchers</a> considered responses to sexual assault in a court setting <a href="https://doi.org/10.1177/0886260515584342">by asking mock jurors</a> to read nearly identical summaries of a sexual assault trial.</p>
<p>The descriptions were the same, except for one important detail: About half of the participants also learned that the victim had filed a civil case to try to get monetary compensation. The mock jurors who read about the civil suit were less likely to say they would convict the defendant. </p>
<p>They also perceived the defendant as more credible, and the victim less so, seeing her instead as greedy and manipulative.</p>
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<a href="https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man in a dark blue suit walks down a sidewalk, flanked by a woman in a beige jacket and another man in a suit." src="https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/524961/original/file-20230508-260774-qc2h0f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Joseph Tacopina, attorney for former President Donald Trump, appears outside a Manhattan courthouse on April 27, 2023.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1485756843/photo/e-jean-carrolls-rape-allegation-trial-against-donald-trump-continues-in-new-york-city.jpg?s=1024x1024&w=gi&k=20&c=KInEtVw5HNx-8HCjELM7i-4Rg1EktZraTiHcj_BPMdg=">Michael M. Santiago/Getty Images</a></span>
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<h2>Women rarely lie about sexual assault</h2>
<p>People <a href="https://doi.org/10.1002/sgp2.12011">routinely question</a> women’s credibility when they disclose sexual harassment and assault, <a href="https://doi.org/10.1007/s11199-018-0950-4">and imply</a> that women lie about assault. </p>
<p>However, evidence consistently shows that false reports of sexual assault are exceedingly rare. For example, two different research teams analyzed sexual assault reports made to the <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/lasr.12060">Los Angeles Police Department</a> and a large <a href="https://pubmed.ncbi.nlm.nih.gov/21164210/">university police department</a>. Using careful criteria for coding allegations and evidence, the teams estimated that only 4.5% to 5.9% of cases were false. </p>
<p>Yet, the vast majority of sexual assault cases reported to law enforcement do not result in convictions. According to research funded by the National Institute of Justice, only about <a href="https://www.wcwonline.org/2019/concerning-rates-of-attrition-for-sexual-assault-cases-new-study">6% of sexual assault cases</a> reported to the police led to a determination of guilt. </p>
<p>In 2017, when my <a href="https://journals.sagepub.com/doi/10.1177/0886260517742149">research team interviewed</a> more than 200 women who were sexually assaulted, we discovered that friends and family commonly responded to disclosures with negative reactions. They treated survivors differently, focused on how the assault affected them instead of the survivors, took control away from survivors and even blamed survivors for the assaults.</p>
<p>In 2019, when another research team pulled together <a href="https://doi.org/10.1016/j.cpr.2019.101750">51 studies</a> like ours on reactions to women’s disclosures, they found a consistent pattern – women who got more negative reactions when they disclosed their assaults had worse mental health outcomes, such as more severe post-traumatic stress disorder symptoms. This pattern suggests that when women disclose, they are trying to get help and support.</p>
<p>When those hopes for support are dashed by negative reactions instead, women’s psychological pain is worse. </p>
<p>Carroll <a href="https://www.npr.org/2023/04/26/1172290037/e-jean-carroll-testified-in-trial-that-trump-sexual-assaulted-her">put it this way</a> as she described the impact of negative reactions to her disclosure: “It hit me and it laid me low because I lost my reputation. Nobody looked at me the same. It was gone. Even people who knew me looked at me with pity in their eyes, and the people who had no opinion now thought I was a liar and hated me.”</p>
<p><em>This is an update to an <a href="https://theconversation.com/trumps-lawyer-accuses-e-jean-carroll-of-lying-relying-on-a-common-and-discredited-myth-about-how-women-are-supposed-to-react-to-rape-205276">article originally published on May 9, 2023</a>.</em></p><img src="https://counter.theconversation.com/content/205276/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne P. DePrince has received funding from the Department of Justice, National Institutes of Health, State of Colorado, and Center for Institutional Courage. She receives royalties for her book, "Every 90 Seconds: Our Common Cause Ending Violence against Women" and has received honoraria for giving presentations. She is an Advisory Group Member of the National Crime Victim Law Institute and a Senior Advisor to the Center for Institutional Courage.</span></em></p>Trump’s lawyers questioned E. Jean Carroll, a magazine columnist, about why she did not scream or call the police after, she alleged, Trump sexually assaulted her in the 1990s.Anne P. DePrince, Professor of Psychology, University of DenverLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2046832023-05-01T06:35:44Z2023-05-01T06:35:44ZWhy was Bruce Lehrmann given the all-clear to sue media for defamation? A media law expert explains<p>Former Liberal Party staffer Bruce Lehrmann has been given the all-clear to <a href="https://www.abc.net.au/news/2023-04-28/bruce-lehrmann-allowed-to-sue-journalists-media-outlets/102269362">continue with defamation proceedings</a> against several media outlets and journalists regarding reporting about Brittany Higgins’ rape allegations.</p>
<p>Lehrmann has always maintained his innocence, and no finding has been made against him. The rape trial was abandoned last year following juror misconduct, and a second trial was not pursued amid fears for Higgins’ mental health.</p>
<p>Lehrmann is suing the Ten Network and former presenter of The Project Lisa Wilkinson, as well as News Life Media (the publisher of news.com.au) and journalist Samantha Maiden.</p>
<p>In New South Wales since 2002, and across Australia since the beginning of 2006, the limitation period for defamation claims is one year. However, the court has the power to extend the limitation period for up to three years.</p>
<p>Lehrmann needed the court to extend the limitation period because both Maiden’s story on news.com.au, and Wilkinson’s interview with Higgins on The Project, took place in mid-February 2021. Lehrmann commenced his defamation proceedings in the Federal Court almost two years later.</p>
<p>On Friday, Justice Michael Lee of the Federal Court of Australia extended the limitation period in these two defamation proceedings brought by Lehrmann.</p>
<p>As Justice Lee observed at the outset of his judgement:</p>
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<p>Any sentient person with an interest in newsworthy events in Australia would be familiar with the general background to the present disputes.</p>
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<p>To have the limitation period extended, Lehrmann needed to persuade the court that it was “not reasonable in the circumstances” for him to have commenced his proceedings within the one-year limitation period.</p>
<p>If the court was persuaded, it would be required to extend the limitation period, although it had discretion as to the length of the extension.</p>
<p>Justice Lee was satisfied that it was “not reasonable in the circumstances” for Lehrmann to have commenced defamation proceedings within the one-year limitation period.</p>
<p>This was mainly because it was not reasonable to commence defamation proceedings while criminal allegations were unresolved. This was the legal advice Lehrmann received from the solicitor with criminal law expertise he consulted.</p>
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Read more:
<a href="https://theconversation.com/why-was-the-lehrmann-trial-aborted-and-what-happens-next-193382">Why was the Lehrmann trial aborted and what happens next?</a>
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<p>As Justice Lee stated:</p>
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<p>Whatever way one looks at it, for Mr Lehrmann to have started defamation proceedings absent the resolution of the criminal allegations would have been for him to take a step into the unknown. Everything might well have worked out, and all respondents may have been passive, but one cannot discount as misconceived advice that taking the risk of starting was imprudent and distracting while criminal allegations were unresolved.</p>
</blockquote>
<p>Justice Lee’s decision followed a decision of the Full Federal Court in Joukhador v Ten Network Pty Ltd in 2021.</p>
<p>In that case, the court stated that, in general, where a person is facing a criminal charge and the publication being sued upon raises an issue about the person’s guilt or innocence, it will ordinarily not be reasonable to commence defamation proceedings within the one-year limitation period.</p>
<p>Justice Lee therefore extended the limitation period in both of the proceedings.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1598570605775028224"}"></div></p>
<p>In April this year, Lehrmann also commenced defamation proceedings against the ABC. This concerned the broadcast of the National Press Club address by Higgins and Grace Tame in February 2022.</p>
<p>Justice Lee indicated that he was inclined to hear all three proceedings together.</p>
<p>Justice Lee also raised the prospect that the case may be an appropriate one for trial by jury. This is significant because civil trials in the Federal Court are presumptively heard by a judge sitting alone. However, the court has the power to order trial by jury if “the ends of justice appear to render it expedient to do so”.</p>
<p>The Federal Court has only ordered a jury trial in civil proceedings <a href="https://abcalumni.net/2021/05/29/whos-to-judge/">once before</a>. In 2009, Justice Rares ordered a jury trial in defamation proceedings brought against The Daily Telegraph for reporting about sexual servitude allegations (the matter then settled before the trial).</p>
<p>Justice Lee sought submissions from the parties as to whether there should be a jury trial in this case. Jury trials tend to take longer and are therefore costlier than trials by judge alone.</p>
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Read more:
<a href="https://theconversation.com/can-juries-still-deliver-justice-in-high-profile-cases-in-the-age-of-social-media-193843">Can juries still deliver justice in high-profile cases in the age of social media?</a>
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<p>If a defamation case is brought in a State Supreme Court (other than in South Australia), either party can elect to have trial by jury. Juries are not available in defamation cases in the territories.</p>
<p>The possible trial date is mid-November this year, lasting for approximately four weeks.</p><img src="https://counter.theconversation.com/content/204683/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Rolph previously received funding from the Australian Research Council that ended in 2014.</span></em></p>The trial is likely to go ahead in November this year, and last for around four weeks.David Rolph, Professor of Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2042792023-04-24T06:01:40Z2023-04-24T06:01:40ZLachlan Murdoch could well have won his Crikey lawsuit, so why did he drop it?<p>Late last week, Lachlan Murdoch <a href="https://www.fedcourt.gov.au/__data/assets/pdf_file/0008/108692/NSD673-2022-Notice-of-Discontinuance.pdf">dropped</a> his defamation claim against key figures behind online publication Crikey.</p>
<p>Murdoch had a strong case. So why would he choose to drop it?</p>
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Read more:
<a href="https://theconversation.com/why-fox-news-settlement-with-dominion-voting-systems-is-good-news-for-all-media-outlets-204095">Why Fox News' settlement with Dominion Voting Systems is good news for all media outlets</a>
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<h2>The facts of the case</h2>
<p>For those under a rock: Lachlan Murdoch is the son of Rupert. He is an Aussie-American-Brit leading News Corp and Fox Corporation. His empire includes Fox News in the US and Sky News in Australia.</p>
<p>Murdoch was suing over a June 2022 <a href="https://www.crikey.com.au/2022/06/29/january-six-hearing-donald-trump-comfirmed-unhinged-traitor/">article</a> on the subject of the January 6 insurrection at the US Capitol. The piece called Donald Trump a “traitor”, and Lachlan Murdoch Trump’s “unindicted co-conspirator” – a reference to <a href="https://www.nytimes.com/1974/06/07/archives/jury-named-nixon-a-coconspirator-but-didnt-indict-st-clair-confirms.html">Richard Nixon’s treatment</a> by a grand jury with respect to the Watergate scandal.</p>
<p>The underlying allegation was that Fox News had supported Trump’s “<a href="https://www.theguardian.com/us-news/ng-interactive/2023/mar/09/trump-big-lie-2020-election-republican-supporters-congress">Big Lie</a>” that the 2020 US presidential election was stolen, which led to the insurrection; and that Lachlan Murdoch was responsible for Fox’s role in spreading the Big Lie.</p>
<p>After the article was published, Murdoch sent the publishers of Crikey a “concerns notice”, essentially threatening to sue them.</p>
<p>In response, the publishers <a href="https://fortune.com/2022/08/24/lachlan-murdoch-suing-crikey-defamation-capitol-insurrection-new-york-times-advert/">almost dared Murdoch to sue</a>. They even went so far as to take out an ad in The New York Times. According to <a href="https://www.theguardian.com/media/2022/nov/30/lachlan-murdoch-alleges-crikey-hired-marketing-firm-to-turn-legal-threat-into-subscription-drive">Murdoch</a>, those behind Crikey used his defamation threat as part of marketing campaign to drive subscriptions.</p>
<p>Challenging a billionaire to a defamation fight may not have been the smartest move. In September 2022, Murdoch <a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/murdoch-v-private-media">commenced proceedings</a> in the Federal Court of Australia. He sued the company publisher of Crikey, its editor, and the article’s author. Later, he also <a href="https://www.fedcourt.gov.au/__data/assets/pdf_file/0003/107778/02.1-Amended-Statement-of-Claim-filed-31-January-2023.pdf">sued</a> the chair and chief executive of that company.</p>
<h2>Crikey’s defences may have failed</h2>
<p>The Crikey respondents were defending the case on a number of bases. Each of these defences relies on legal principles that excuse the publication of content that is defamatory for the sake of other important interests.</p>
<p>Perhaps their strongest defence was a new one: a statutory defence of “<a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/da200599/s29a.html">publication of matter in the public interest</a>”. The defence became law in 2021. It means a defamatory publication is defensible if two conditions are met.</p>
<p>First, the publication must concern an “issue of public interest” – which the Crikey article clearly did. Second, the publishers must have “reasonably believed” that the publication of the matter (the article) was in the public interest.</p>
<p>The case may have turned on this second element of the new defence. What did the publishers believe? Was their belief about the public interest, or driving subscriptions for Crikey? There was a decent risk a court would have gone with the second option, and the defence would have failed.</p>
<p>If the defences had have failed, Murdoch would have won. So why would he choose to <a href="https://www.fedcourt.gov.au/__data/assets/pdf_file/0008/108692/NSD673-2022-Notice-of-Discontinuance.pdf">discontinue</a> his case?</p>
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<h2>The backdrop of the Dominion v Fox case</h2>
<p>Just days ago, Murdoch’s Fox settled what would have been one of the <a href="https://www.nytimes.com/live/2023/04/18/business/fox-news-dominion-trial-settlement">biggest defamation case of all time</a>. Dominion Voting Systems had sued Fox in the US, seeking a whopping US$1.6 billion damages.</p>
<p>It is extremely difficult to succeed in a defamation case against a media company under US law. But if ever there was a case where it could happen, this was it.</p>
<p>Through pre-trial procedures, Dominion had uncovered a treasure trove of evidence from people at Fox – including from the likes of <a href="https://www.nytimes.com/2023/03/07/business/media/fox-dominion-2020-election.html">Tucker Carlson</a> and <a href="https://www.nytimes.com/2023/02/27/business/media/fox-news-dominion-rupert-murdoch.html">Rupert Murdoch himself</a>. </p>
<p>There was plenty of ammo for Dominion to argue Fox was deliberately spreading lies about Dominion, which would have been required for Dominion to succeed.</p>
<p>Just before the trial was about to start, Dominion agreed to put an end to the case in exchange for a <a href="https://www.theguardian.com/us-news/2023/apr/18/dominion-wins-but-the-public-loses-fox-settlement-avoids-paying-the-highest-price">US$787.5 million payment</a> from Fox.</p>
<p>This was a steep price for Fox to pay but a loss would have cost substantially more in damages. And it would have cost more than money.</p>
<p>If the case had proceeded to trial, it would have caused tremendous damage to the Fox brand and that of its talking heads, further alienating the audience on which they depend. The evidence already uncovered was ugly, but it was about to get even uglier.</p>
<h2>Discontinuing the defamation case was a sound decision</h2>
<p>If Lachlan Murdoch continued the Crikey case, then all of the dirty laundry that was to be aired in the Dominion case could have been aired in Australia.</p>
<p>According to the <a href="https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/10-fair-trial/open-justice/">principle of open justice</a>, that evidence would have been heard in open court, with the global media watching. </p>
<p>Fox’s key benefit of the Dominion settlement – making the story go away, and not having to uncover further evidence – would have been destroyed. It would have been a massive own goal.</p>
<p>It’s likely Lachlan Murdoch himself would have been cross-examined.</p>
<h2>There are other reasons Murdoch would want the case to end now</h2>
<p>Say the case continued, and Lachlan Murdoch won. This would mean the Crikey respondents failed in their reliance on the statutory defence of “publication of matter in the public interest”. </p>
<p>The resulting judgment could set a precedent undermining the value of the new defence. </p>
<p>It is in Lachlan Murdoch’s ultimate interest that the defence remains strong: it will protect News Corp rags from publishing defamatory articles, which they are prone to do. Laying down his weapons now avoids that scenario.</p>
<p>And there is a reason <a href="https://www.theguardian.com/media/2023/apr/21/lachlan-murdoch-drops-defamation-proceedings-against-independent-australian-publisher-crikey">Lachlan Murdoch has himself</a> given for ending his case: he does not want to give Crikey any more ammo for a marketing campaign to attract subscribers.</p>
<p>Murdoch insists he was confident he would have won his case. He may have won defamation damages but he could have lost far more.</p>
<p>Murdoch may end up having to pay the legal costs of the Crikey respondents. But this case was never really about money. <a href="https://www.afr.com/companies/media-and-marketing/ego-hubris-and-ideology-judge-blasts-crikey-v-murdoch-motives-20230404-p5cxwz">As the judge said a few weeks ago</a>, it was more about “ego and hubris”. Many defamation cases are.</p>
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<strong>
Read more:
<a href="https://theconversation.com/murdoch-v-crikey-highlights-how-australias-defamation-laws-protect-the-rich-and-powerful-189228">Murdoch v Crikey highlights how Australia's defamation laws protect the rich and powerful</a>
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<img src="https://counter.theconversation.com/content/204279/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Douglas is a consultant in a litigation firm, where he has worked on defamation matters and acted for plaintiffs. He has been a member of the ALP and the Australian Republic Movement. </span></em></p>After the article was published, Murdoch sent the publishers of Crikey a ‘concerns notice’, essentially threatening to sue them. In response, the publishers almost dared Murdoch to sue.Michael Douglas, Senior Lecturer in Law, The University of Western AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2037412023-04-17T12:43:03Z2023-04-17T12:43:03ZDefamation was at the heart of the lawsuit settled by Fox News with Dominion – proving libel in a court would have been no small feat<figure><img src="https://images.theconversation.com/files/520935/original/file-20230413-20-sbbnce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Election workers in Detroit test their equipment made by Dominion Voting Systems in August 2022.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1242162041/photo/us-vote-election-machines.jpg?s=1024x1024&w=gi&k=20&c=T4CDKTWzYJiLY4tkXMkYIu9nzlRmx3JR9zKjyAo0AJU=">Jeff Kowalsky/AFP via Getty Images</a></span></figcaption></figure><p>The aftershocks of the 2020 presidential election continue to reverberate in <a href="https://www.theguardian.com/us-news/2023/mar/17/trump-research-voter-fraud-claims-debunked">politics and the media</a> with Fox News Network’s April 18, 2023, US$787.5 million settlement with U.S. Dominion Inc. The settlement puts an end to Dominion’s defamation suit against the network.</p>
<p><a href="https://www.cnn.com/2023/04/13/media/fox-news-dominion-trial-jury/index.html">Ahead of opening arguments</a> that were slated to begin April 18, Fox News agreed to pay Dominion for alleged defamation. The lawsuit rested on whether false claims Fox hosts and their guests made about Dominion’s voting machines after President Joe Biden was elected were defamatory. <a href="https://www.npr.org/2023/04/14/1169858006/the-math-behind-dominion-voting-systems-1-6-billion-lawsuit-against-fox-news.">Dominion sued Fox</a> for $1.6 billion. </p>
<p>Fox News hosts said on air that that there were “voting irregularities” with Dominion’s voting machines – while privately saying that <a href="https://abcnews.go.com/Politics/fox-news-hosts-allegedly-privately-versus-air-false/story?id=97662551">such claims were baseless</a>. </p>
<p>The statements have already been proved false. Delaware Superior Court Judge Eric M. Davis <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=345820">ruled on March 31, 2023</a>, that it “is CRYSTAL clear that <a href="https://www.politico.com/news/2023/03/31/dominion-lawsuit-fox-trial-00090034">none of the Statements</a> relating to Dominion about the 2020 election are true.”</p>
<p>The question at hand was whether the statements harmed Dominion’s reputation enough to rise to the <a href="https://www.npr.org/2023/03/31/1167526374/judge-rules-fox-hosts-claims-about-dominion-were-false-says-trial-can-proceed">level of defamation</a>.</p>
<p><a href="https://comm.osu.edu/people/kraft.42">I am a longtime journalist and journalism professor</a> who teaches the realities and challenges of defamation law as it relates to the news industry. Being accused of defamation is among a journalist’s worst nightmares, but it is far easier to throw around as an accusation than it is to actually prove fault.</p>
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<a href="https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A blonde white woman stands facing an electronic voting booth." src="https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520937/original/file-20230413-18-yvvfzg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A voter in Atlanta takes part in midterm elections in November 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1244620086/photo/midterm-elections-in-us-state-of-georgia.jpg?s=1024x1024&w=gi&k=20&c=dPhcbNrHmc8c2rz3syqzycPN14uLGifdVdOz-DoR0cg=">Nathan Posner/Anadolu Agency via Getty Images</a></span>
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<h2>Understanding defamation</h2>
<p>Defamation happens when someone publishes or publicly broadcasts falsehoods about a person or a corporation in a way that harms their reputation to the point of damage. When the false statements are written, <a href="https://www.law.cornell.edu/wex/libel">it is legally considered libel</a>. When the falsehoods are spoken or aired on a live TV broadcast, for example, <a href="https://www.law.cornell.edu/wex/slander">it is called slander</a>.</p>
<p>To be considered defamation, information or claims must be presented as fact and disseminated so others read or see it and must identify the person or business and offer the information with a reckless <a href="https://www.law.cornell.edu/wex/defamation">disregard for the truth</a>. </p>
<p>Defamation plaintiffs can be private, ordinary people who must prove the reporting was done with negligence to win their suit. Public people like celebrities or politicians have a higher burden of proof, which is summed up as actual malice, or overt intention to harm a reputation.</p>
<p>The ultimate defense against defamation is truth, but there are others. </p>
<p>Opinion that is <a href="https://www.rcfp.org/journals/news-media-and-law-summer-2011/opinion-defense-remains-str/%5D">not provable fact is protected</a>, for example. </p>
<p>Neutral reportage – a legal term that means <a href="https://www.mtsu.edu/first-amendment/article/1002/neutral-reportage-privilege">the media reports fairly, if inaccurately</a>, about public figures – can legally protect journalists. </p>
<p>But Davis rejected both of those arguments <a href="https://www.washingtonpost.com/media/2023/03/31/dominion-fox-lawsuit-summary-ruling/">in the federal Dominion case</a>. </p>
<p>Davis determined Fox aired falsehoods when it allowed Trump supporters to claim on air that Dominion rigged voting machines to increase President Joe Biden’s number of votes. He also said that these actions harmed the Dominion’s reputation. </p>
<h2>Proving actual malice</h2>
<p>The primary question for the jury, which had already been seated, would have been whether Fox broadcasters knew the statements were false when they aired them. If they did, it would mean they acted with actual malice, the standard required to prove a case of defamation for a <a href="https://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-negligence">public person, entity or figure</a>. </p>
<p>The U.S. Supreme Court established actual malice as a legal criterion of defamation in 1964 when L.B. Sullivan, a police commissioner in Alabama, felt his reputation had been harmed by a civil rights ad run in The New York Times that <a href="https://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/new-york-times-v-sullivan-podcast">contained several inaccuracies</a>. Sullivan sued and was awarded $500,000 by a jury. The state Supreme Court affirmed the <a href="https://www.oyez.org/cases/1963/39">decision and the Times appealed</a>.</p>
<p>The U.S. Supreme Court <a href="https://www.oyez.org/cases/1963/39">ruled in 1964</a> that proof of defamation required evidence that the advertisement creator had serious doubts about the truth of the statement and published it anyway, with the goal to harm the subject’s reputation. </p>
<p>Simply put, the burden of proof shifted from the <a href="https://constitutioncenter.org/blog/an-important-date-in-supreme-court-history-for-the-press">accused to the accuser</a>.</p>
<p>And that is a hurdle most cannot overcome when claiming defamation.</p>
<h2>Why proving defamation is so hard</h2>
<p>It is incredibly hard to prove in court that someone set out do harm in publishing facts that are ultimately proved to be untrue.</p>
<p>Most times, falsehoods in a story are the result of insufficient information at the time of reporting. </p>
<p>Sometimes an article’s inaccuracies are the result of bad reporting. Other times the errors are a result of actual negligence. </p>
<p>This happened when Rolling Stone magazine published an article in 2014 <a href="https://www.bustle.com/articles/74322-where-to-read-rolling-stone-uva-article-a-rape-on-campus-now-its-been-deleted">about the gang rape</a> of a student at the University of Virginia. It turned out that many parts of the story were not true and <a href="https://www.nytimes.com/2016/11/05/business/media/rolling-stone-rape-story-case-guilty.html">not properly vetted</a> by the magazine. </p>
<p>Nicole Eramo, the former associate dean of students at the University of Virginia, sued Rolling Stone, claiming the story false alleged that she knew about and covered up a gang rape at a fraternity on campus. They <a href="https://www.npr.org/sections/thetwo-way/2017/04/12/523527227/rolling-stone-settles-defamation-case-with-former-u-va-associate-dean">reached a settlement</a> on the lawsuit in 2017.</p>
<h2>Not meeting the malice standard</h2>
<p>There are also some recent examples of a defamation lawsuit’s not meeting the actual malice standard.</p>
<p>This includes Alaskan politician Sarah Palin, who <a href="https://www.nytimes.com/2022/02/15/business/media/new-york-times.html">sued The New York Times</a> over publication of an editorial in 2017 that erroneously stated her political rhetoric led to a mass shooting. The jury said the information might be inaccurate, but she had not proved actual malice standard.</p>
<p>Long before he was president, Donald Trump had a 2011 libel suit dismissed after a New Jersey appeals court said <a href="https://www.hollywoodreporter.com/business/business-news/donald-trump-loses-libel-lawsuit-232923/">there was no proof</a> a book author showed actual malice when he cited three unnamed sources who estimated Trump was a millionaire, not a billionaire. </p>
<p>It is so difficult for public figures to meet the actual malice standard and prove defamation that most defamation defendants spend most of their legal preparation time trying to prove they are not actually in the public eye. Their reputations, according to the court, are not as fragile as that of a private person. </p>
<p>Private people <a href="https://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-negligence">must prove only negligence</a> to be successful in a defamation lawsuit. That means that someone did not seriously try to consider whether a statement was true or not before publishing it.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520938/original/file-20230413-16-a8t6uc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Protesters gather outside the Fox News headquarters in New York City ahead of the Dominion trial.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1247874462/photo/a-billboard-truck-seen-outside-fox-news-hq-members-of-the.jpg?s=1024x1024&w=gi&k=20&c=ntartb3dfI1g1-LfKcRYfnp37TM6EA82AW2Tg0nkSow=">Erik McGregor/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<h2>Defamation cases that went ahead</h2>
<p>Some public figures, however, have prevailed in proving defamation. </p>
<p>American actress <a href="https://www.nytimes.com/1981/03/27/us/carol-burnett-given-1.6-million-in-suit-against-national-enquirer.html">Carol Burnett won the first-ever</a> defamation suit against the National Inquirer when a jury decided a 1976 gossip column describing her as intoxicated in a restaurant encounter with former Secretary of State Henry A. Kissinger was known to be false when it was published.</p>
<p>Most recently, Cardi B won a defamation lawsuit against a celebrity news blogger who posted videos falsely stating the <a href="https://apnews.com/article/entertainment-music-arts-and-entertainment-lawsuits-celebrity-87ecf677d5bd7261d57dfd770ec139a9">Grammy-winning rapper used cocaine</a>, had herpes and took part in prostitution.</p>
<h2>The case of Dominion</h2>
<p>Fox’s payout to Dominion – though only half of what Dominion sued for – reportedly shows that the voting machines company <a href="https://www.politico.com/news/2023/04/18/why-fox-news-had-to-settle-the-dominion-suit-00092708">put together a strong case</a> that Fox acted with actual malice.</p>
<p>But Fox pundits have helped the plaintiff’s case by acknowledging they knew information was false before they aired it and leaving a copious trail of comments such as, “<a href="https://www.npr.org/2023/03/31/1167526374/judge-rules-fox-hosts-claims-about-dominion-were-false-says-trial-can-proceed">this dominion stuff is total bs</a>.”</p>
<p>Fox’s position was that despite knowing claims made by guests about Dominion were false, <a href="https://www.nytimes.com/2023/04/11/business/fox-news-dominion-trial.html">the claims were newsworthy</a>. </p>
<p>Does this qualify as actual malice or simply bad journalism?</p>
<p>The settlement seems to imply actual malice – and this could send shivers through the political media landscape for years to come. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/defamation-is-at-the-heart-of-dominions-lawsuit-against-fox-news-but-proving-it-is-no-small-feat-203741">article originally published on April 17, 2023</a>.</em></p><img src="https://counter.theconversation.com/content/203741/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicole Kraft does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s far easier to throw around accusations of damage to one’s reputation than it is to actually prove it in court. A journalism scholar explains the criteria that must be met.Nicole Kraft, Associate Professor of Clinical Communication, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2020832023-04-11T12:05:29Z2023-04-11T12:05:29ZAnyone can claim to be a journalist or a news organization, and publish lies with almost total impunity<figure><img src="https://images.theconversation.com/files/520033/original/file-20230410-26-4zi81a.jpeg?ixlib=rb-1.1.0&rect=0%2C0%2C3090%2C2046&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There are no standards for what it takes to be a journalist.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/participant-seen-holding-a-sign-outside-fox-news-hq-members-news-photo/1247874350?adppopup=true">Erik McGregor/LightRocket via Getty Images</a></span></figcaption></figure><p>Headlines in early March 2023 implied Fox News mogul Rupert Murdoch had <a href="https://www.npr.org/2023/02/28/1159819849/fox-news-dominion-voting-rupert-murdoch-2020-election-fraud">made a damning confession</a>. He had affirmed that some of his most important journalists were reporting that the 2020 presidential election was a fraud – even though they knew they were propagating a lie. </p>
<p>It was an admission during pretrial testimony in a libel lawsuit filed against Fox by a voting machine company that says it was defamed by the lie. For journalism practitioners and devotees, the admission should signal the end of the Fox News empire. </p>
<p>Nope. It didn’t.</p>
<p>Such a disgraceful demise would seem inevitable when journalists – professionally trained truth gatherers, employed by a news organization, which is an institution that exists to provide truthful information – choose not to do so. </p>
<p>Nope.</p>
<p>That’s because a business that calls itself a news organization actually does not have to be one - but it does have to be a business. <a href="https://ir.lib.uwo.ca/lawevents/4/">Businesses exist primarily to make a profit</a> and doing actual news isn’t essential. Adam Serwer, reporting for <a href="https://www.theatlantic.com/ideas/archive/2023/02/fox-news-dominion-voting-lawsuit-2020-election-conspiracy/673111/">The Atlantic</a>, wrote “sources at Fox told me to think of it not as a network per se, but as a profit machine.” </p>
<p>News businesses or profit machines can hire anybody who falls off a turnip truck and label them journalists because the job has <a href="https://www.bls.gov/ooh/media-and-communication/reporters-correspondents-and-broadcast-news-analysts.htm">no standardized requirements</a>. </p>
<p>The U.S. Bureau of Labor Statistics <a href="https://www.bls.gov/ooh/media-and-communication/reporters-correspondents-and-broadcast-news-analysts.htm">lists “None” as requirements</a> for work experience and on-the-job training for journalists but indicates a bachelor’s degree is typical. Accordingly, the Fox News business people could choose to spread election lies and insist, as court documents indicate, that it made good business sense to do so because much of their audience did not want the actual truth about that topic.</p>
<p>These are some of the troubling takeaways from Murdoch’s defense of his news business against <a href="https://www.documentcloud.org/documents/20527880-dominion-v-fox-news-complaint">a libel lawsuit filed by Dominion Voting</a> Systems, the company implicated by Fox’s election fraud allegations. Fox essentially admits to publishing false information about Dominion, but argues it is nonetheless protected from liability. It is a defense grounded in the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a>, which protects press freedom so robustly that it also protects the irresponsible use of that freedom. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men at a sports game, one younger and one older." src="https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=344&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=344&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=344&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=433&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=433&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520038/original/file-20230410-3948-1z66xz.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=433&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Lachlan Murdoch, left, and his father, Rupert Murdoch, lead the Fox corporation.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/rupert-murdoch-and-his-son-lachlan-murdoch-attend-the-news-photo/1027568416?adppopup=true">Jean Catuffe/GC Images</a></span>
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<h2>There’s lying … and there’s defamation</h2>
<p>Murdoch’s admission was contained in <a href="https://int.nyt.com/data/documenttools/dominion-fox-news/54e33f20f7fb6e8d/full.pdf">court documents</a> and was revealed in <a href="https://www.nytimes.com/2023/03/07/business/media/fox-dominion-2020-election.html">a New York Times story</a> published on March 7, 2023. The story was about the US$1.6 billion libel lawsuit <a href="https://www.documentcloud.org/documents/20527880-dominion-v-fox-news-complaint">filed against Fox News</a> by Dominion, the company Fox journalists repeatedly - and falsely - accused of rigging the 2020 presidential election to make sure Donald Trump lost. </p>
<p>Internal Fox communications, reported by the New York Times, revealed that network journalists and their news executive bosses knew the 2020 election was not fraudulent, yet continued to allow lies about the election - told by hosts and their guests - to be spread to the public. </p>
<p>Dominion claimed Fox’s audience recoiled when its journalists truthfully reported that Trump had lost the election. Dominion’s attorneys asserted that Fox feared the audience would switch their viewing allegiance to upstart conservative news organizations Newsmax and One America News.</p>
<p>In a March 31, 2023, ruling, the judge hearing the case cited examples of Fox’s internal communications that demonstrated how journalism values were supplanted by the <a href="https://www.documentcloud.org/documents/23736885-dominion-v-fox-summary-judgment">language and values of business</a>. Among them was this quote attributed to a Fox Corporation board member: “If ratings go down, <a href="https://www.nytimes.com/interactive/2023/02/27/business/media/dominion-fox-news.html">revenue goes down</a>.” The judge also referred to <a href="https://www.nytimes.com/2023/03/31/business/fox-dominion-defamation-case.html">Dominion’s claim</a> that Fox chose to publish the (false) statements to win back viewers. </p>
<p>Court documents show Dominion’s attorneys asked Murdoch: “What should the consequences be when Fox News executives knowingly allow lies to be broadcast?” Murdoch replied: “They should be reprimanded, maybe got rid of.”</p>
<p>That response aligns with <a href="https://www.nytimes.com/editorial-standards/ethical-journalism.html#introductionAndPurpose">principles</a> widely touted by professional news organizations and established in the <a href="https://www.wiley.com/en-us/The+Ethical+Journalist%3A+Making+Responsible+Decisions+in+the+Digital+Age%2C+3rd+Edition-p-9781119777489">ethical practice</a> of journalism. Although journalism scholars and practitioners vary in their definitions of what a <a href="https://www.cjr.org/special_report/disrupting-journalism-how-platforms-have-upended-the-news-intro.php">news organization is</a> and <a href="https://archives.cjr.org/behind_the_news/whos_a_journalist_zzzzzzzzzzzz.php">who can claim to be a journalist</a>, there is firm agreement that reporting facts, or at least making a good faith effort to do so, is an indispensable mandate for both. </p>
<p>Yet Murdoch has not indicated an intention to discipline en masse Fox News employees who violated that ethical principle. Nor is he required to. </p>
<p>Even the Society of Professional Journalists, the nation’s <a href="https://spj.org/">foremost advocate</a> for ethical journalism, <a href="https://www.spj.org/ethics-papers-code.asp">rejects punishments</a> for those who violate its principles. Its ethics code says in part: “The code is entirely voluntary. … It has no enforcement provisions or penalties for violations, and SPJ strongly discourages anyone from attempting to use it that way.” The organization concedes that news outlets can discipline their own journalists. Because journalists and their employers may be considered to be one entity, any disciplinary action is voluntary self-discipline. Neither journalists nor the news organizations they personify have to be truthful unless they want to. </p>
<p>Lying in the press is unethical but does not necessarily strip liars of the protections <a href="https://supreme.justia.com/cases/federal/us/567/709/">provided by the First Amendment</a>. There is an exception to this: the <a href="https://www.law.cornell.edu/wex/defamation">defamatory lie</a>, one that injures a person or organization’s reputation. That is what got Fox News sued.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A machine with the words 'Dominion Voting' on it, and a woman walking by in the background." src="https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520045/original/file-20230410-20-t0e1uv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The lawsuit filed by the maker of this voting machine, Dominion Voting Systems, charges that Fox News disseminated lies claiming that Dominion rigged the 2020 presidential election against Donald Trump.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/NotRealNews/4ef225a704cd42c383e7e24f7418b3a4/photo?Query=dominion%20lawsuit&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=38&currentItemNo=8">AP Photo/Ben Gray</a></span>
</figcaption>
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<h2>Assumptions fall</h2>
<p>Murdoch’s surprising statements were revealed in the lawsuit because his attorneys sought what’s called a “<a href="https://www.law.cornell.edu/wex/summary_judgment">summary judgment</a>” by the judge to decide the case without a trial, in order to avoid the prospect of facing a jury. That move makes sense given that some <a href="https://www.routledge.com/The-Law-of-Public-Communication/Lee-Stewart-Peters/p/book/9781032193120?gclid=EAIaIQobChMI7bmIi_-L_gIV3v_jBx0A-QzVEAAYASAAEgKm0fD_BwE">law scholars</a> have found that juries rule against media defendants three times out of four. </p>
<p><a href="https://www.law.cornell.edu/rules/frcp/rule_56">By law</a>, summary judgment is available only when the parties agree on the material facts of the case. </p>
<p>That meant Fox and Murdoch had to admit to Dominion’s most damning allegations, including confessing to broadcasting untrue statements and engaging in other unethical journalism practices. Even with those admissions, the <a href="https://www.mtsu.edu/first-amendment/article/889/actual-malice">First Amendment’s protection</a> could still give Fox a chance to win the lawsuit - particularly if a jury did not hear the case. </p>
<p>Without reaching trial or a verdict, the Dominion Voting Systems v. Fox News lawsuit has already produced some unsettling results. It has challenged journalism disciples’ assumption that news organizations exist to <a href="https://www.americanpressinstitute.org/journalism-essentials/what-is-journalism/purpose-journalism/">provide the public with truthful information</a> about the most important issues in their civic lives. It has shaken journalism’s faithful who assume that <a href="https://niemanreports.org/articles/good-journalism-can-be-good-business/">good journalism is never bad</a> for the business of journalism.</p>
<p>Neither assumption is necessarily valid at Fox or anywhere. Anyone can claim to be a journalist, irrespective of their actual function. Any business can claim to be a news organization. Functioning irresponsibly in either role is largely protected by the First Amendment and is therefore optional.</p>
<p>Ethics imposed by independent state bar associations and state medical boards have made professional attorneys and physicians accountable by law as a means of ensuring responsible behavior in their roles, which are considered essential to society. Journalism ethics, which are news organization ethics, are wholly voluntary and can be set aside if they compromise profits. </p>
<p>But if the ethics violations are defamatory, a successful libel lawsuit can impose accountability with a financial cost - money damages.</p><img src="https://counter.theconversation.com/content/202083/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John C. Watson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A news organization doesn’t have to publish or broadcast the facts or the truth. And there are no standardized requirements to be a journalist.John C. Watson, Associate Professor of Journalism, American UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1980492023-02-14T15:53:02Z2023-02-14T15:53:02ZBy policing history, Poland’s government is distorting the Holocaust<figure><img src="https://images.theconversation.com/files/509630/original/file-20230213-22-vsqclm.jpg?ixlib=rb-1.1.0&rect=37%2C113%2C3556%2C2549&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Monument to the Ghetto Heroes in Warsaw, Poland, commemorating the 1943 Warsaw Ghetto Uprising. History surrounding the Holocaust has become increasingly controversial in Poland in recent years.</span> <span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span></figcaption></figure><p>In January 2018, the Polish parliament <a href="https://www.amnesty.org/en/documents/eur37/7858/2018/en/">passed a law</a> that imposed prison terms of up to three years of anyone who claimed Poles had any responsibility for or complicity in crimes committed by the Nazis during the Holocaust. </p>
<figure class="align-left ">
<img alt="A banner for the event with Jan Grabowski" src="https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509895/original/file-20230213-16-kb2qti.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.sshrc-crsh.gc.ca/society-societe/icw-ca/index-eng.aspx">Prof. Jan Grabowski will talk about his research on the Holocaust in an interview with Ibrahim Daair, The Conversation Canada's Culture + Society Editor. Click here to join the event for free by registering.</a></span>
</figcaption>
</figure>
<p>The law was intended to silence historians, and indeed, it has created a chilling atmosphere within academia and beyond.</p>
<p><a href="https://iupress.org/9780253010742/hunt-for-the-jews/">My research</a> focuses on the relations between Polish Jews and the surrounding non-Jewish population.</p>
<p>In my case, the Polish government (acting directly or through proxies) has decided to use civil litigation. <a href="https://www.cbc.ca/news/canada/ottawa/university-of-ottawa-professor-wins-libel-case-1.6143539">I have been sued for libel</a> and Polish organizations have requested my removal from my position as professor of history at the University of Ottawa. </p>
<p>More recently, I have been questioned by Poland’s <a href="https://www.abw.gov.pl/en">Internal Security Agency</a> and <a href="https://twitter.com/ziobropl/status/1427525611019546634">the country’s justice minister has expressed outrage</a> about my work. </p>
<p>These are just some of the legal and extra-legal challenges related to writing the history of the Holocaust in Poland today.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/poland-is-trying-to-rewrite-history-with-this-controversial-new-holocaust-law-91774">Poland is trying to rewrite history with this controversial new holocaust law</a>
</strong>
</em>
</p>
<hr>
<figure class="align-center ">
<img alt="A statue of a man carrying a child with other children following behind." src="https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&rect=0%2C10%2C3464%2C2664&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=464&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=464&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=464&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=583&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=583&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509565/original/file-20230211-22-klk8sb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=583&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A memorial to Janusz Korczak, who died in the gas chamber of the Treblinka death camp in 1942, together with the children of the Jewish orphanage that he ran in the Warsaw Ghetto.</span>
<span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span>
</figcaption>
</figure>
<h2>History and nationalism</h2>
<p>The notion of wartime complicity by segments of Polish society in the Holocaust has long been considered a taboo subject.</p>
<p>In 2015, the far-right <a href="https://www.bbc.com/news/world-europe-34631826">Law and Justice party came to power in Poland</a>. Defending the <a href="https://www.macleans.ca/news/world/as-poland-re-writes-its-holocaust-history-historians-face-prison/">good name</a> of the nation has become one of the focal elements of its political platform and a sure way to consolidate its electoral base.</p>
<p>As a result, independent historians and educators, <a href="https://www.tvp.info/52369152/dalej-jest-noc-historyk-dr-piotr-gontarczyk-engelking-padla-ofiara-wlasnej-metodologii">myself included</a>, have become targets of vicious hate campaigns in state-owned and state-controlled media.</p>
<p>There is a saying among scholars of the Holocaust: “I did not choose to study the Holocaust, it chose me.”</p>
<p>Trained as a historian of the 17th and 18th centuries, I came to the study of the Holocaust rather unexpectedly, at the turn of the century, while on a trip to Warsaw visiting <a href="https://www.newyorker.com/news/our-columnists/the-historians-under-attack-for-exploring-polands-role-in-the-holocaust">my ailing father, a Holocaust survivor</a>.</p>
<p>With some time on my hands, I did what most historians do: I went to the local archives. That’s when I stumbled upon thousands of files of the German courts from occupied Warsaw.</p>
<p>What made me curious was the fact that hundreds of files concerned Jews from the <a href="https://www.yadvashem.org/holocaust/about/ghettos/warsaw.html">Warsaw Ghetto</a>. I found out that the Germans prosecuted them for the breaches of various Nazi regulations: Refusing to wear <a href="https://www.bl.uk/learning/histcitizen/voices/info/yellowstar/theyellowstar.html">prescribed armbands with the star of David</a>, for leaving the ghetto without permission, for violating curfews, for buying and smuggling food from the “<a href="https://encyclopedia.ushmm.org/content/en/article/aryan-1">Aryan</a>” side to the ghetto or for “slandering the good name of the German nation” — which usually meant telling jokes about the occupation.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Flowers next to a grave stone with a star of david." src="https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509564/original/file-20230211-713-yg8q94.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A memorial in Wojslawice, Poland, to the 60 Jews executed in the town during the Holocaust.</span>
<span class="attribution"><span class="source">(AP Photo/Czarek Sokolowski)</span></span>
</figcaption>
</figure>
<h2>The Holocaust’s ‘bystanders’</h2>
<p>The eminent scholar on the Holocaust, Raul Hilberg, divided the human scenery of the Holocaust into three categories: <a href="https://www.publishersweekly.com/978-0-06-019035-4">perpetrators, victims and bystanders</a>. Over the years, we have learned much about the Holocaust’s German perpetrators and Jewish victims, but much less about the ill-defined last category.</p>
<p>Who were the bystanders? Were they people who knew nothing about the ongoing Jewish catastrophe? Or people who were conscious of the event but who chose indifference?</p>
<p>Poland was an epicentre of the Holocaust. It was a place where the Nazis built death camps, and where <a href="https://www.yadvashem.org/holocaust/about/fate-of-jews/poland.html">most of the Jewish population was murdered</a>. In my research, I found that it was simply impossible — I saw that very clearly — for people to remain distant or aloof from the genocide.</p>
<p>Not all the Jewish ghettos (<a href="https://encyclopedia.ushmm.org/content/en/article/ghettos-in-poland">and there were hundreds of ghettos in Poland</a>) were isolated from the outside world. Most of the ghettos were either open (no walls), or with flimsy fences that did not prevent contact between the Jews and other Poles.</p>
<p>Then, in 1942, the liquidation actions began. The Germans, together with local helpers, rounded up the Jews and drove Jewish families towards the nearest railway station, where they were placed on <a href="https://encyclopedia.ushmm.org/content/en/article/german-railways-and-the-holocaust">death trains</a> destined for the death camps of Treblinka, Bełżec, Sobibór and Auschwitz.</p>
<p>All of this happened in plain view of the surrounding non-Jewish population. Once the masses of Jews had been deported to their deaths, the emptied ghettos became the sites of massive robbery. Tens of thousands of houses, apartments and furniture were all for the taking.</p>
<p>That is when uncounted thousands of Jews who chose to hide in <a href="https://www.dw.com/en/surviving-the-holocaust-uncovering-secret-hideouts/video-60539431">ingenious hideouts</a> under and inside their houses were detected, pulled out and delivered into the hands of the Germans for immediate execution.</p>
<p>Some Jews fled the ghettos altogether, seeking shelter in the forests, most often, with locals who offered assistance either for a fee or for altruistic reasons.</p>
<p>During this last, final stage of the Holocaust — one which the Germans called Judenjagd or “hunt for the Jews” — the hidden Jews, from the German standpoint, became largely invisible. During this last phase (which continued until the end of the war), it was often one’s non-Jewish neighbours who decided who lived and who died.</p>
<p>It was my research into this stage of the Holocaust that led me to believe that being a bystander in Eastern Europe and, most of all, in Poland, was simply impossible. The whole idea of “bystanding” needed to be re-examined, questioned and perhaps even dismissed.</p>
<p>My research generated discussion among historians but, at the same time, in Poland, <a href="https://www.cbc.ca/news/canada/ottawa/jan-grabowski-holocaust-hate-campaign-1.4169662">it also raised ire and anger among nationalists</a>.</p>
<h2>Night Without End</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Red and black book cover with the words: Night without end, the fate of Jews in German-occupied Poland." src="https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=850&fit=crop&dpr=1 600w, https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=850&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=850&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1068&fit=crop&dpr=1 754w, https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1068&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/509563/original/file-20230211-25-n022k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1068&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Night Without End by Jan Grabowski and Barbara Engelking.</span>
<span class="attribution"><span class="source">(Indiana University Press)</span></span>
</figcaption>
</figure>
<p>It was within such a political context that <a href="https://iupress.org/9780253062864/night-without-end/"><em>Night Without End</em></a>, a book that I co-wrote and co-edited, was published in 2018. The two-volume, 1,600-page study is a specialized inquiry into the fates of Jews in selected areas of wartime Poland. We looked at the Jewish struggle for survival and German genocidal policies.</p>
<p>We also tried to understand the attitudes of the surrounding Polish society to the Jewish catastrophe. The results were grim: the results of many years of research pointed to the fact that at least two-thirds of Jews who went into hiding had either been murdered or betrayed to the Nazis by their Polish neighbours.</p>
<p>The reaction of the authorities was swift and furious. My co-author and I have been <a href="https://www.tvp.info/52288441/kiedy-historyk-boi-sie-babci">denounced in the press</a>. An unprecedented campaign of hate, followed by civil lawsuits and criminal accusations, ensued.</p>
<p>Attacks on historians and on history itself go hand in hand with attacks on other vital parts of open and democratic society. The defence of history and the struggle to preserve our right to know what has happened are among the foundations of the democratic system. </p>
<p>“Who controls past, controls the future,” <a href="https://www.britannica.com/topic/Nineteen-Eighty-four">George Orwell wrote</a> in <em>Nineteen Eighty-Four</em>. His words have never rang more true.</p><img src="https://counter.theconversation.com/content/198049/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jan Grabowski does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Holocaust has become a contentious issue in Poland in recent years. And those challenging the government’s historical narrative have faced condemnation and lawsuits.Jan Grabowski, Professor, Department of History, L’Université d’Ottawa/University of OttawaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1966632022-12-25T20:42:04Z2022-12-25T20:42:04ZYou can say you wish King Charles would die, but you can’t urinate on your back tyre: 8 common myths about Australian law<p>We’ve all been at a work or family gathering when someone has offered a seemingly authoritative statement about the way the law operates.</p>
<p>Without some knowledge of the field of law, listeners may simply nod their heads sagely and tut-tut about the perceived inadequacies and injustices that have been revealed.</p>
<p>But there are many misconceptions about the law. Here are eight common falsehoods.</p>
<h2>1. If people laugh at my joke then it’s not sexual harassment</h2>
<p>This is not correct. Sexual harassment <a href="https://humanrights.gov.au/our-work/sexual-harassment-workplace-legal-definition-sexual-harassment">is defined</a> as any unwelcome sexual behaviour that makes a person feel offended or humiliated, where that reaction is reasonable in the circumstances.</p>
<p>A <a href="https://humanrights.gov.au/time-for-respect-2022">survey by the Australian Human Rights Commission</a> found over the past five years, one in three workers experienced sexual harassment in their workplace. The survey found reporting of workplace sexual harassment remains alarmingly low, at only 18%.</p>
<p>Women (41%) were far more likely than men (26%) to experience harassment. More than three-quarters of harassers <a href="https://humanrights.gov.au/about/news/media-releases/time-respect-one-third-workers-say-they-have-experienced-sexual">were men</a>.</p>
<p>In November, the federal parliament passed the Respect@Work bill which creates a positive duty on all employers to implement measures to prevent sexual harassment.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1589563828354052097"}"></div></p>
<h2>2. I don’t have to give my name and address to police, as I have a right to silence</h2>
<p>The right to remain silent when questioned by police is a fundamental protection provided by the common law. However, this right is <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1991/34.html">not absolute</a>, and does not mean you don’t have to give them certain personal information. </p>
<p>Legislation in every Australian jurisdiction gives police the right to ask for details that will assist their enquiries. For example, <a href="https://lawhandbook.sa.gov.au/ch03s01s01s01.php">in South Australia</a>, you must provide your full name, date of birth and address if a police officer has reasonable cause to suspect you have committed or are about to commit an offence, or if you may be able to assist in the investigation of an offence.</p>
<p>It’s an offence to refuse to give police your personal details, or if you provide <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/soa1953189/s74a.html">false or misleading information</a>. Police can also ask you to <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/sa/consol_act/soa1953189/s74ab.html">identify drivers</a> of motor vehicles in which you’re travelling. But they can’t demand that you answer any further questions, and must give you a caution that anything you might say may be later used in evidence.</p>
<p>Where there has been a violent arrest, or the arrested person is unable to appreciate or understand their rights, the caution must be repeated once the arrested person has settled down or sobered up.</p>
<h2>3. My boyfriend moved in with me a year ago and left last week, so now I have to give him half of my assets</h2>
<p>For a person in a de facto relationship to be successful in any property settlement, they must satisfy the Family Court that:</p>
<ul>
<li><p>the relationship has lasted at least two years</p></li>
<li><p>or the parties have had a child together</p></li>
<li><p>or the relationship was registered under a state or territory relationship registration scheme</p></li>
<li><p>or one party has made substantial financial or non-financial contributions to the other party and that serious injustice would result <a href="https://search.informit.org/doi/abs/10.3316/agispt.20220120060588">if an order were not made</a>.</p></li>
</ul>
<p>Also, there’s no presumption of a 50:50 split in Australian family law. In determining a just and equitable division of property, the court will consider the parties’ respective assets, the contributions each party has made to the relationship, and each party’s future needs.</p>
<h2>4. I’m not responsible for things others write on my Facebook</h2>
<p>While it may be hard to believe, you may still be liable for things others post on your social posts, even if you don’t know about them.</p>
<p>In 2021 <a href="https://eresources.hcourt.gov.au/downloadPdf/2021/HCA/27">the High Court ruled</a> that media companies could be liable for <a href="https://theconversation.com/craig-mclachlan-defamation-and-getting-the-balance-right-when-sexual-harassment-goes-to-court-91223">defamatory comments</a> made by readers on their <a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">Facebook posts</a>. The ruling extends beyond Facebook and likely applies to any social media platform including Instagram, TikTok, Twitter and LinkedIn.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages</a>
</strong>
</em>
</p>
<hr>
<p>It also extends beyond media companies and covers businesses and private individuals, including those running online community groups and forums, such as administrators of <a href="https://www.theguardian.com/law/2021/oct/29/lawyers-use-voller-defamation-case-to-demand-facebook-group-admins-remove-posts">Facebook groups</a>.</p>
<p>But watch this space – state and territory attorneys-general have just given <a href="https://ministers.ag.gov.au/media-centre/standing-council-attorneys-general-communique-09-12-2022">in-principle agreement</a> to amend defamation laws to protect “internet intermediaries” such as social media administrators. The details are yet to emerge but are not likely to defend egregious comments that should have been noticed and removed by a person posting on their own social media platforms.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Hand holding a phone with Facebook open" src="https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/502031/original/file-20221220-26-x7dzft.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Under current case law, you’re responsible for what others write on your social media posts.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>5. I can leave my kids in the car for a few minutes so long as I leave a window open</h2>
<p>This is not true. While every jurisdiction in Australia <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-1998-157#sec.231">has slightly different laws</a>, it’s generally <a href="https://www.abc.net.au/news/2017-11-14/can-you-leave-your-child-in-the-car-while-you-pay-for-fuel/9144304">an offence</a> to leave a child unattended in a car regardless of whether they suffer any distress or injury.</p>
<p>Any police attention, and charges that may flow from that, will depend on the circumstances of the alleged neglect, including the ambient temperature, the extent of child distress (if any), and the proximity of the driver including the time taken for them to, for example, pay for fuel.</p>
<p>Opening a car window <a href="https://raisingchildren.net.au/toddlers/safety/car-pedestrian-safety/never-leave-children-in-cars">does not negate</a> criminal charges.</p>
<h2>6. I can urinate in public if it’s on my back tyre</h2>
<p>If this was once the law with horses and drays, it is no longer the law today. Any such displays in public (especially in a built up area) can amount to “<a href="https://www.criminaldefencelawyers.com.au/blog/is-urinating-in-public-a-crime/?utm_source=mondaq&utm_medium=syndication&utm_term=Criminal-Law&utm_content=articleoriginal&utm_campaign=article">offensive behaviour</a>” and can be prosecuted. </p>
<p>However it’s entirely contextual. For example, marathon runners who receive urgent calls from Mother Nature would be unlikely to be prosecuted.</p>
<h2>7. Saying you wish Charles would cark it so William can be king is treason</h2>
<p>The offence of treason still exists, but one must do more than declare disparaging (or even treacherous) thoughts about the reigning monarch to excite the authorities into prosecuting. </p>
<p>The Commonwealth <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/cca1995115/sch1.html">Criminal Code section 80.1</a> sets out what amounts to treasonous behaviour. You really have to be serious about acting on your declarations before the treason threshold is reached.</p>
<h2>8. Australian consulates overseas are Australian territory</h2>
<p>This is a common misconception. Article 31 of the <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=III-6&chapter=3">Vienna Convention on Consular Relations</a> provides some protection to consular premises from outside intrusion. </p>
<p>This includes a rule that the police of the host state can’t enter consular premises without the consulate country’s permission, unless it’s an emergency. But this doesn’t turn the consulate into Australian territory.</p><img src="https://counter.theconversation.com/content/196663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre is an office bearer in the Dunstan sub-branch of the SA Labor party.</span></em></p><p class="fine-print"><em><span>Sarah Moulds receives occasional funding from the Law Foundation of South Australia Australia. She is the Director of the volunteer-based Rights Resource Network of South Australia and a member of the Law Society of South Australia. </span></em></p><p class="fine-print"><em><span>Juliette McIntyre, Lisa Cooper, and Michelle Fernando do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>We’ve all been at a work or family gathering when someone has offered a seemingly authoritative statement about the way the law operates. Without some knowledge of the field of law, listeners may simply…Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South AustraliaJuliette McIntyre, Lecturer in Law, University of South AustraliaLisa Cooper, Lecturer in Law, University of South AustraliaMichelle Fernando, Senior Lecturer in Law, University of South AustraliaSarah Moulds, Senior Lecturer of Law, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1948262022-12-02T13:03:04Z2022-12-02T13:03:04ZCorruption in South Africa: new book lifts the lid on who profits - and their corporate enablers<figure><img src="https://images.theconversation.com/files/496463/original/file-20221121-26-3p10v6.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Wikimedia Commons</span></span></figcaption></figure><p>The new <a href="https://jacana.co.za/product/the-unaccountables/">book</a> The Unaccountables: The Powerful Politicians and Corporations who Profit from Impunity is welcome for the way it contextualises corruption. It shows how politicians and bureaucrats could not implement corruption without their corporate and professional enablers – the accountants, auditors and advocates who make it all possible.</p>
<p>The book is the result of a decade of research by <a href="https://www.opensecrets.org.za/">Open Secrets</a> and other NGOs. It is edited by Michael Marchant, Mamello Mosiana, Ra’eesa Pather and Hennie van Vuuren (a blend of investigative journalists and activists) and has 11 named contributors. Analytically, it covers four overlapping issues:</p>
<ul>
<li><p>crimes such as stealing public funds and evading tax </p></li>
<li><p>culpable negligence by professionals such as auditors </p></li>
<li><p>serial failure by regulatory authorities </p></li>
<li><p>moral and political issues such as inequality and corporate tax avoidance.</p></li>
</ul>
<h2>Corporate corruption</h2>
<p>Readers who are diligent in taking in the daily media will remember most of the high profile cases summarised in this book. But not all. It reveals that the <a href="https://theconversation.com/the-deaths-of-144-mentally-ill-patients-and-south-africas-constitutional-democracy-91433">Life Esidemeni tragedy</a>, in which 144 patients died after being placed in inadequate facilities run by NGOs in 2015, had one apartheid precedent. During the 1960s the <a href="https://www.britannica.com/topic/National-Party-political-party-South-Africa">National Party</a> regime outsourced the psychiatric care of 11,000 patients (9,000 of them black) to the British company Intrinsic Investments: 207 died (p.50). </p>
<p>The book fills some gaps in media reports. These tend to focus on those who are despised by the plutocratic, wealthy establishment – the ruling African National Congress politicians and their cronies. The media are comparatively reluctant to cover crimes committed by fellow denizens of their plutocratic stratosphere, such as auditors, accountants and advocates. For example, global media coverage of Hong Kong focuses on Chinese repression of freedom of expression – but overlooks its role as a tax shelter and corporate secrecy hideout for front companies and money laundering:</p>
<blockquote>
<p>a long-running failure to hold the powerful and wealthy to account for the crimes that they profit from. Economic crimes and corruption are committed by a small band of the powerful, but they pose fundamental threats to democracy and social justice. They result in the looting of public funds, the destruction of democratic institutions, and ultimately … the human rights of millions of people. (p.12)</p>
</blockquote>
<p>Fear of those with money to bring defamation litigation, or who decide on corporate advertising spending in the media, aggravates this situation.</p>
<p>This book is structured around apartheid profiteers, war profiteers, state capture profiteers, welfare profiteers, failing auditors, conspiring consultants, and bad lawyers.</p>
<p>The authors note how over 500 global corporations negotiated, thanks to their tax accountants, with Luxembourg, a tax haven, paying only 1% tax on their profits (p.254). They seem to have missed the case of Ireland, where such tax is one thousandth of 1% on profits. Such tax shelters pervade the west, especially <a href="https://thecommonwealth.org/our-member-countries">Commonwealth countries</a>.</p>
<p>The book calls for action to end such tax avoidance. But it does not spell out what it would entail. It would require the South African government to negotiate an international coalition to campaign through the United Nations, the Organisation for Economic Cooperation and Development and the African Union, to find enough allies to mitigate such a global power structure – class power in its purest form.</p>
<p>US president Joe Biden’s proposal that globally, corporate tax should have <a href="https://www.reuters.com/business/biden-offers-drop-corporate-tax-hike-proposal-source-2021-06-03/">a floor of 15%</a> provides a good start for such campaigns.</p>
<h2>Regulation failure</h2>
<p>This book gives welcome attention to a long-neglected problem in South Africa. That is the serial failure of regulatory authorities to hold companies or professionals to account. One instance too recent for this book to cover is that the minerals and energy minister, Gwede Mantashe, has fired from the National Nuclear Regulator a civil society representative, on the grounds that he is <a href="https://www.news24.com/fin24/economy/eskom/mantashe-fires-anti-nuclear-activist-from-regulatory-board-20220225">anti-nuclear</a>. </p>
<figure class="align-left ">
<img alt="Book cover with the words 'The Unaccountable' over images of several punidentifiable men walking." src="https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=929&fit=crop&dpr=1 600w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=929&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=929&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1167&fit=crop&dpr=1 754w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1167&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/496457/original/file-20221121-19-rl2eao.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1167&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>Since the minister’s portfolio and performance contract require him to promote nuclear power, it is a conflict of interests for him to interfere in the regulator of nuclear safety. The regulator should fall under the environmental affairs department, as in other countries. This is a topical example of the abuse of power, and defanging a regulatory authority.</p>
<p>The book underscores that the Independent Regulatory Board of Auditors (IRBA) refuses to name and shame. It abuses secrecy to protect the names and reputations of auditors guilty of conspiring with their corporate clients to conceal the truth (p.272):</p>
<blockquote>
<p>the IRBA’s desire to protect its members overshadows its responsibility. </p>
</blockquote>
<p>Since at least the first world war, pacifists have denounced the military-industrial complex as the merchants of death. The <a href="https://www.gov.za/national-conventional-arms-control-committee-ncacc-statement-south-african-arms-sales-regulation">National Conventional Arms Control Committee</a> is supposed to oversee South African exports of armaments and munitions. This is to ensure the country does not violate international treaties. It is not known to have refused any permits to export armaments to countries at war, even when they indiscriminately bomb civilians, as in Yemen.</p>
<p>The authors call for its statutory framework to be drastically toughened up.</p>
<h2>Apartheid profiteers</h2>
<p>The historical chapter of the book, on apartheid profiteers, holds no surprises. Of course, <a href="https://www.sanlam.co.za/Pages/default.aspx?gclid=Cj0KCQiA4OybBhCzARIsAIcfn9m5OBZxhgPlZPIjzU68Z0C7CSAqA8Eqkui60NBY7q8qkcX4Hw3vu_UaAlITEALw_wcB&gclsrc=aw.ds">Sanlam</a>, the insurance giant, and <a href="https://www.naspers.com/">Naspers</a>, the media behemoth, were always part of the Afrikaner nationalist movement, led by the secretive <a href="https://www.britannica.com/topic/Afrikaner-Broederbond">Broederbond</a>. Of course, individual Afrikaner businessmen donated to the <a href="https://www.sahistory.org.za/article/national-party-np">Nasionale Party</a>, which formalised apartheid in 1948, as did the military-industrial complex. All those companies manufacturing armaments had only one monopoly buyer – the South African Defence Force:</p>
<blockquote>
<p>a significant portion of the business elite kept the taps open to the party at the height of domestic repression and foreign wars (p.25). </p>
</blockquote>
<p>The authors do a thorough job of exposing all the Swiss, Belgian and Luxembourg bankers who comprised the sanction-busting front companies. It exposes the late <a href="https://www.britannica.com/biography/Mobutu-Sese-Seko">Mobutu Sese Seko</a> of Zaire (now the Democratic Republic of Congo) for providing false end user certificates to enable <a href="https://www.armscor.co.za/">Armscor</a>, the apartheid-era state arms procurement company, to smuggle in weaponry (p.42).</p>
<p>The book revisits the controversial <a href="https://www.corruptionwatch.org.za/the-arms-deal-what-you-need-to-know-2/">1999 arms deal</a>. It explains how bribes were described in corporate paperwork as consultancy fees. The arms deal was the first opportunity of the post-apartheid military to buy big-ticket weapons after a quarter-century of arms sanctions, which the post-apartheid military lacked the budget to maintain in service. </p>
<p>Since then, the amount wasted in the arms deal has been dwarfed by the billions spent by <a href="https://www.transnet.net/Pages/Home.aspx">Transnet</a>, the rail, ports and pipelines parastatal, on corrupt locomotive contracts. The same for <a href="https://www.prasa.com/">Prasa</a>, the passenger rail parastatal, and <a href="https://www.eskom.co.za/">Eskom</a>, the power utility, contracts.</p>
<p>Overall, it is a book that should be on the bookshelf of every thinking South African.</p>
<p><em>Updated to clear confusion created by the absence of an index in the advance proof sent to the author.</em></p><img src="https://counter.theconversation.com/content/194826/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Keith Gottschalk is an ANC member, but writes this review in his professional capacity as a political scientist.</span></em></p>The new book is structured around apartheid profiteers, war profiteers, state capture profiteers, welfare profiteers, failing auditors, conspiring consultants and bad lawyers.Keith Gottschalk, Political Scientist, University of the Western CapeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1956162022-11-30T13:46:03Z2022-11-30T13:46:03ZOath Keepers convictions shed light on the limits of free speech – and the threat posed by militias<figure><img src="https://images.theconversation.com/files/498108/original/file-20221129-14-xljhhz.jpeg?ixlib=rb-1.1.0&rect=0%2C7%2C5083%2C3348&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Members of the Oath Keepers stand in front of the U.S. Capitol on Jan. 6, 2021. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotOathKeepers/eaefc1fd8ab34688bc66e77ba8b0454e/photo?Query=Stewart%20Rhodes&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=258&currentItemNo=221">AP Photo/Manuel Balce Ceneta</a></span></figcaption></figure><p>The verdicts in a high-profile, monthslong trial of Oath Keepers militia members were, as one defense lawyer acknowledged, “<a href="https://apnews.com/article/oath-keepers-founder-guilty-of-seditious-conspiracy-42affe1614425c6820f7cbe8fd18ba96">a mixed bag</a>.” Leader Stewart Rhodes was found guilty on Nov. 29, 2022, of the most serious charge – seditious conspiracy – for his <a href="https://www.justice.gov/usao-dc/pr/two-leaders-oath-keepers-found-guilty-seditious-conspiracy-and-other-charges-related-us">role in the Jan. 6, 2021, insurrection at the U.S. Capitol</a>, and was acquitted on two other related charges.</p>
<p>One of Rhodes’ four co-defendants, <a href="https://www.cnn.com/2022/11/29/politics/oath-keepers-convicted-verdict-charges-january-6-seditious-conspiracy">Kelly Meggs, was also convicted of seditious conspiracy</a>. All five on trial were <a href="https://www.nytimes.com/2022/11/29/us/politics/oath-keepers-trial-verdict-jan-6.html">found guilty of obstructing an official proceeding</a>, namely Congress’ certification on Jan. 6, 2021, of the 2020 presidential election results.</p>
<p>The convictions for seditious conspiracy – a rarely used, Civil War-era charge <a href="https://www.lawfareblog.com/seditious-conspiracy-real-domestic-terrorism-statute">typically reserved in recent decades for terror plots</a> – are the most significant yet relating to the violent storming of the Capitol, and have meaning that extends beyond those who were on trial.</p>
<p>As someone who has <a href="https://www.middlebury.edu/institute/people/amy-cooter">studied the U.S. domestic militia movement</a> for nearly 15 years, I believe the Oath Keepers convictions illuminate two crucial issues facing the country: the limits of the American right to free speech and the future of the militia movement.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A balding, bearded man wearing glasses and an eye patch." src="https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=687&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=687&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=687&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=864&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=864&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498110/original/file-20221129-26-42sk1x.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=864&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Oath Keepers militia leader Stewart Rhodes, convicted by a jury on Nov. 29, 2022, of seditious conspiracy for orchestrating a plan to keep former President Donald Trump in power.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotSedition/63c743cff23d4e7bb152bedf38a58849/photo?Query=Stewart%20Rhodes&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=258&currentItemNo=218">Collin County Sheriff's Office via AP</a></span>
</figcaption>
</figure>
<h2>Greater accountability</h2>
<p>Rhodes’ seditious conspiracy conviction suggests the jury believed, as one prosecutor asserted, that he “<a href="https://www.nytimes.com/2022/10/03/us/politics/jan-6-oath-keepers-trial.html">concocted a plan for an armed rebellion to shatter a bedrock of American democracy</a>.” In other words, he was convicted over what he had said and written prior to the actual Jan. 6 attack – and this is where free speech comes into play. </p>
<p><a href="https://constitution.congress.gov/constitution/amendment-1/#:%7E:text=Congress%20shall%20make%20no%20law,for%20a%20redress%20of%20grievances.">The First Amendment</a> guarantees that “Congress shall make no law … 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.” It’s considered a sacred American right, one that sets the U.S. apart from many peer nations, <a href="https://theworld.org/stories/2015-01-13/freedomofspeech-what-means-us-britain-and-france#:%7E:text=The%20First%20Amendment%20expressly%20prohibits,certain%20types%20of%20speech%20explicitly">some of which have stricter controls and consequences for speech that may be harmful</a>. </p>
<p>Efforts to arrest and convict groups in the U.S. that have discussed violence against racial groups, politicians or others have often been <a href="https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio">stymied by appeals to the First Amendment</a>. </p>
<p>Far-right extremists or other hate groups can claim they are just venting or even fantasizing – both of which would be protected under the First Amendment. In the absence of any specific plan, threat <a href="https://mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action">or incitement</a>, group members may never suffer legal consequences for oral or written expressions that nonetheless create fear in those who draw these groups’ ire. </p>
<p>For this reason, seditious conspiracy charges have historically been hard to prosecute.</p>
<p>The last time this charge was attempted was against members of <a href="https://www.lawfareblog.com/last-time-justice-department-prosecuted-seditious-conspiracy-case">the Christian militia group called Hutaree in Michigan in 2009</a>, <a href="https://www.justice.gov/opa/pr/nine-members-militia-group-charged-seditious-conspiracy-and-related-charges">for allegedly planning to engage law enforcement “in armed conflict</a>.” But the judge <a href="https://casetext.com/case/united-states-v-stone-73">dismissed the sedition charges</a>, citing First Amendment protections.</p>
<p>What is interesting about the Oath Keepers case is that <a href="https://www.theguardian.com/us-news/2022/nov/29/oath-keepers-militia-founder-stewart-rhodes-seditious-conspiracy">Rhodes himself did not breach the Capitol</a> yet was convicted of seditious conspiracy. Meanwhile three of his co-defendants – Jessica Watkins, Kenneth Harrelson and Thomas Caldwell – did storm into the Capitol building, <a href="https://www.justice.gov/usao-dc/pr/two-leaders-oath-keepers-found-guilty-seditious-conspiracy-and-other-charges-related-us">but were not convicted of that charge</a>. </p>
<p>This suggests that the jury believed that Rhodes’ texts and other communications incited others to violent, undemocratic action in a way that requires accountability. </p>
<h2>‘Slower-brewing social harms’</h2>
<p>Rhodes’ conviction follows three other prosecutions that reflect an evolving understanding of the limits of free speech. <a href="https://www.nytimes.com/2022/11/10/us/politics/alex-jones-sandy-hook-damages.html">Conspiracy-purveyor Alex Jones was ordered to pay almost US$1.5 billion</a> to families of children killed in the Sandy Hook school shooting in three defamation cases arising from Jones’ lies about the children’s deaths, the shooting itself, and the parents.</p>
<p>Jones claims the prosecutions <a href="https://www.nytimes.com/2022/09/22/us/politics/alex-jones-free-speech.html">violated his rights to free speech</a>.</p>
<p>Neither <a href="https://crsreports.congress.gov/product/pdf/IF/IF12180">defaming someone</a> <a href="https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action">nor inciting immediate lawless action</a> are protected under the First Amendment – but <a href="https://www.mtsu.edu/first-amendment/post/1251/why-incitement-is-hard-to-prove-and-why-that-s-a-good-thing">these cases have often been</a> <a href="https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2220&context=wmlr">hard to prove</a>. The Oath Keepers and Alex Jones verdicts may herald a new and greater understanding of the slower-brewing social harms that can arise if people are allowed to spread misinformation without consequences. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man with an eyepatch shown on a large screen behind a group of people seated at a long desk in a public hall." src="https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498118/original/file-20221129-24-2d4cyv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A video showing Stewart Rhodes during an interview with the January 6 Committee is shown at that committee’s public hearing June 9, 2022, on Capitol Hill in Washington.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/CapitolRiotOathKeepersFounder/eee7cea6a7ab48bcab876cbe3ef795c3/photo?Query=Stewart%20Rhodes&mediaType=photo&sortBy=creationdatetime:desc&dateRange=Anytime&totalCount=258&currentItemNo=206">AP Photo/Andrew Harnik</a></span>
</figcaption>
</figure>
<h2>Take them seriously</h2>
<p>The convictions of Rhodes and other Oath Keepers may also lead law enforcement agencies to similarly shift their understanding of militia groups. </p>
<p>In the past, such agencies, from the local to federal levels, have <a href="https://www.theguardian.com/commentisfree/2019/aug/15/far-right-violence-fbi-terrorism-hate-crime">tended to disregard potential threats from militia groups</a>. Some <a href="https://slate.com/news-and-politics/2021/01/constitutional-sheriffs-white-supremacists-capitol-riot-insurrection.html">sheriffs in particular have even openly allied with militia groups</a> for <a href="https://www.adl.org/resources/backgrounders/oath-keepers">search and rescue efforts or used them for event “security</a>.” </p>
<p>Both the seriousness of the charges against Rhodes and his defendants as well as the widely shared videos of physical assaults that took place on Capitol police officers during the insurrection may help change attitudes in at least some agencies. </p>
<p>The Oath Keepers convictions come just three months <a href="https://www.reuters.com/legal/michigan-jury-finds-three-men-guilty-plot-kidnap-governor-2022-10-26/">after convictions of several members of the Wolverine Watchmen</a>, <a href="https://www.michigan.gov/ag/news/press-releases/2022/10/26/members-of-wolverine-watchmen-convicted-on-all-charges">the militia whose members plotted to kidnap Michigan Gov. Gretchen Whitmer and put her on trial for treason</a>. Together, the verdicts may, at the very least, solidify the impression that militia members have the potential for violent and organized actions against elected officials. </p>
<h2>Militias still relevant force</h2>
<p>An unknown in all this is how militias may respond to the implications of the Oath Keepers verdicts. </p>
<p>It is unlikely that there will be one single reaction within the militia movement. </p>
<p>Rhodes has long been a controversial figure within the movement, with some militia leaders I have interviewed supporting his efforts and others strongly disliking him. Some told me a decade ago that they distrusted both his general abilities, citing <a href="https://www.nytimes.com/2022/11/21/us/stewart-rhodes-oath-keepers-yale-law.html">his self-inflicted gunshot wound</a>, and his motives for <a href="https://apnews.com/article/oath-keepers-founder-jan-6-trial-4372b311695c401255c6881111ff4f41">pushing the Oath Keepers to be a national organization</a>. Militia members who have always disliked Rhodes had little sympathy for him as the trial developed. </p>
<p>Those in the militia movement who continue to believe the 2020 election was stolen, however, may well view Rhodes as a martyr for a bigger cause. For them, Rhodes’ conviction and whatever prison sentence he receives could very well become one of several reference points about the purported unfairness or illegitimacy of the system. It could even serve as a rallying point for militias and their sympathizers who believe the soul of their nation is at stake and will want to fight for their desired outcome in the next election. </p>
<p>The U.S. is unlikely to see another Capitol incursion. But the militia movement – in which Rhodes was a leader – and other groups who share many of its ideological principles will almost certainly continue to be a relevant political force as the country heads into the 2024 presidential election cycle.</p><img src="https://counter.theconversation.com/content/195616/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amy Cooter is a past recipient of the National Science Foundation Graduate Research Fellowship</span></em></p>The historic conviction of Oath Keepers founder Stewart Rhodes and one other co-defendant for seditious conspiracy has implications for free speech and the future of the militia movement in the US.Amy Cooter, Senior Research Fellow, MiddleburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1903802022-09-28T14:37:07Z2022-09-28T14:37:07ZChild custody in South Africa: what to do when co-parenting goes wrong<figure><img src="https://images.theconversation.com/files/486542/original/file-20220926-879-8hf3bz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Andrey Popov/Shutter stock</span></span></figcaption></figure><p>The COVID-19 lockdowns severed many families, where they found themselves having a limited period to decide who would live where and with whom. In other instances, it cemented the divide which already existed for the non-custodial parent. Post-COVID lockdowns some parents still find themselves in a tug-of war over the children despite custody agreements. </p>
<p>There are cases where the levels of conflict between the parents cause emotional harm to the children. In extreme cases a child manifest unjustified hostility towards one parent as the result of psychological manipulation by the other.</p>
<p>Not much has been done to officially recognise parental alienation in South African courts. Nevertheless the law advocates for the best interests of the child in terms of the <a href="https://www.gov.za/documents/childrens-act">Children’s Act 38 of 2005</a>. This includes the child being raised in a peaceful and loving environment free from abuse and ill treatment. Parental alienation destroys this environment. There are a number of cases in which mothers, and sometimes fathers, have lost custody of their children after being accused of “parental alienation”. </p>
<p>In a <a href="https://ujonlinepress.uj.ac.za/index.php/ujp/catalog/view/52/222/829">recent book chapter</a> I took a closer look at the psychological effects of parental alienation. I further unpacked the civil remedies available for an affected parent. And proposed that parents in this situation have a valid claim for emotional distress and harm. </p>
<h2>What is parental alientation?</h2>
<p>Parental alienation is a recurring problem that affects many families who are experiencing high conflict, separation and divorce. Parental alienation can be defined as a process whereby one parent undermines the child’s previously intact relationship with the other parent. </p>
<p>It creates a situation where the alienating parent teaches the child to reject the other parent, to fear the parent and to avoid having contact with that parent. </p>
<p>Parental alienation is a global problem. For example in 2010 Brazil <a href="https://www.loc.gov/item/global-legal-monitor/2010-09-02/brazil-parental-alienation-criminalized/">criminalised parental alienation</a>.</p>
<h2>What is the impact?</h2>
<p>Parental alienation has emotional consequences – for the adults involved as well as for the children.</p>
<p>When a parent’s conduct leads a child rejecting the other parent, the alienated parent’s <a href="https://childandfamilyblog.com/parental-alienation/">emotional response usually</a> includes a sense of powerlessness and frustration, stress, loss, grief, anger, fear and feelings of pain, anxiety, deficiency, humiliation and being unloved. </p>
<p>Ultimately, the alienated parent experiences the anguish of the loss of a child causing immense mental pain and suffering. This is similar to loss and is combined with the continuing concern for the child.</p>
<p>The alienated child generally feels insecure, anxious and overwhelmed, and experiences feelings of guilt and confusion. This child may be confused as to the adult-child role, particularly if they are older, such as pre-teen or teenage.</p>
<p>When the child emotionally manipulates the situation, to create an emotional partner, it is known as triangulation, and is a common feature of parental alienation.</p>
<p>Children in this situation <a href="https://www.news24.com/parent/family/relationships/the-impact-of-parental-alienation-on-a-child-20210210">responsible and obliged</a> to step in and protect and care for the victim-parent.</p>
<h2>What can be done?</h2>
<p>Unfortunately, criminal law remedies cannot provide a system of compensation for an alienated parent who has been wrongfully harmed by intentional or culpable conduct. </p>
<p>The <a href="http://www.saflii.org/za/journals/SPECJU/2012/8.html#:%7E:text=The%20customary%20law%20of%20delict%20gives%20redress%20for%20the%20violation,her%20have%20been%20violated2.">law of delict</a> offers this relief. Delict is a civil remedy offered to a victim who has suffered harm or injury at the hands of another person. At the heart of the delictual principles lie society’s views. These include legal and public policy considerations as well as constitutional rights and norms.</p>
<p>Most South Africans don’t know that they can claim compensation for injury and harm sustained if they are victims. An alienated parent can claim for defamation if their case warrants it.</p>
<p>In addition to this remedy, I am of the view that an alienated parent should also explore the claim of emotional harm that he or she has suffered. </p>
<p>For alienated parent to claim on the basis of emotional shock, they would have to successfully prove all the delictual elements on a balance of probabilities. It is accepted that with a claim for emotional shock and harm where there is only psychological harm suffered, courts are open to hear all cases, and can impose liability for any conduct that either intentionally or negligently causes psychological harm.</p>
<p>South African courts should be amenable to listen to cases where the alienated parent suffers only psychological harm. But it would require the alienated parent to prove a detectable and recognised psychiatric injury or lesion that is not passing or trivial. </p>
<p>This additional recourse will assist a victim in providing them with the necessary psychological assistance that they require. It would also provide them with the comfort that their aggressor would not be let off easily. This will also serve as a deterrent in future.</p><img src="https://counter.theconversation.com/content/190380/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Franaaz khan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Parental alienation is a recurring problem that affects many families who are experiencing high conflict, separation and divorce.Franaaz khan, Senior lecturer, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1844242022-06-08T18:40:23Z2022-06-08T18:40:23ZDepp v. Heard verdict is a turning point in discussion of intimate partner violence<figure><img src="https://images.theconversation.com/files/467593/original/file-20220607-40272-2r1g23.jpg?ixlib=rb-1.1.0&rect=4%2C0%2C2991%2C1989&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Johnny Depp waves to supporters as he departs the Fairfax County Courthouse on May 27, 2022.</span> <span class="attribution"><span class="source">(Craig Hudson/AP Photo)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/depp-v--heard-verdict-is-a-turning-point-in-discussion-of-intimate-partner-violence" width="100%" height="400"></iframe>
<p>The <a href="https://www.washingtonpost.com/arts-entertainment/2022/06/01/johnny-depp-verdict/"><em>Johnny Depp v. Amber Heard</em> defamation trial</a> has touched a chord with many people when it comes to gender and intimate partner violence. Headlines throughout the trial showcased drastically different opinions on the potential ramifications of the verdict for victims of intimate partner violence and the fate of <a href="https://www.nytimes.com/2022/06/06/podcasts/the-daily/depp-heard-me-too.html">the #MeToo movement</a>.</p>
<p>Some declare “<a href="https://www.nytimes.com/2022/05/18/opinion/amber-heard-metoo.html">the death of the MeToo movement</a>” and an “<a href="https://www.theguardian.com/commentisfree/2022/jun/01/amber-heard-johnny-depp-trial-metoo-backlash">orgy of misogyny</a>” arguing Heard was punished for her stance as “a public figure representing domestic abuse” and for coming forward against a powerful male celebrity. </p>
<p>Certain advocates and experts fear this verdict will <a href="https://theconversation.com/could-the-depp-v-heard-case-make-other-abuse-survivors-too-scared-to-speak-up-184324">silence women coming forward with abuse claims</a> and embolden perpetrators. While others claim a “<a href="https://www.skynews.com.au/opinion/piers-morgan/big-victory-in-the-battle-against-cancel-culture-with-depp-court-win/video/ce2d9ca97a1687d4d025d964b0a01a9f">big victory in the battle against cancel culture</a>” and <a href="https://www.spectator.co.uk/article/johnny-depp-and-the-truth-about-male-domestic-abuse-victims">a turning point for male victims of domestic abuse</a>.</p>
<p>As a <a href="https://www.sfu.ca/criminology/newsandevents/2020-sfu-criminology-faculty-series/2020-sfu-criminology-assistant-professor-alexandra-lysova.html">scholar</a> who has been studying intimate partner violence for over 15 years, I consider this case to be a crucial turning point in the public discussion of intimate partner violence because it has shed light on hidden forms of intimate partner violence and men who are victims of it. But I also don’t think the verdict will harm the #MeToo movement or female victims of abuse as some fear.</p>
<h2>Bidirectional violence</h2>
<p><em>Depp v. Heard</em> highlighted <a href="https://theconversation.com/heard-v-depp-trial-was-not-just-a-media-spectacle-it-provided-an-opportunity-to-discuss-the-nuances-of-intimate-partner-violence-182843">bidirectional violence</a>, a largely unspoken about issue in intimate partner violence, which occurs when a person in the relationship reports both perpetrating and experiencing violence. </p>
<p>Both Depp and Heard <a href="https://www.latimes.com/entertainment-arts/story/2022-05-03/psychologist-testifies-that-depp-assaulted-heard">accused each other</a> of physical violence and claimed to be victims of abuse — the couple’s former psychotherapist, Laurel Anderson confirmed they were engaged in <a href="https://www.bbc.com/news/world-us-canada-61114768">mutual abuse</a>.</p>
<figure class="align-center ">
<img alt="A man looks forward while a woman smiles into his chest, he's wearing a suit she's in a dress" src="https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=467&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=467&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=467&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=587&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=587&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467741/original/file-20220608-268-dlxz8d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=587&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Johnny Depp and Amber Heard arrive at the premiere of the film ‘The Danish Girl’ during the 72nd edition of the Venice Film Festival in Venice, Italy, in 2015.</span>
<span class="attribution"><span class="source">(AP Photo/Andrew Medichini)</span></span>
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<p>Bidirectional violence is in fact <a href="https://domesticviolenceresearch.org/pdf/PASK.Tables3.Revised.pdf">the most common pattern of abuse</a> in intimate relationships — 58 per cent of couples in abusive relationships experience it. And the impact of the bidirectional violence can be <a href="http://dx.doi.org/10.2105/AJPH.2005.079020">very serious</a>, including injury and mental health problems for both partners. </p>
<p>But media pays much more attention to <a href="http://dx.doi.org/10.1177/1440783319837612">unidirectional men’s violence against women</a>. The <em>Depp v. Heard</em> case calls attention to the toxic bidirectionality of abuse, which highlights the need for awareness of the problem so we can prevent it happening in the future. </p>
<p>This case also brings attention to <a href="https://doi.org/10.1007/978-3-319-08398-8_19">women’s use of violence</a> in intimate relationships. In video testimony, Anderson revealed that Heard <a href="https://www.bbc.com/news/world-us-canada-61114768">initiated physical violence</a> in trying to prevent Depp from leaving the room. Depp also accused Heard of <a href="https://www.bbc.com/news/uk-53347044">cutting the top of his finger</a> by throwing a vodka bottle at him. </p>
<p>Despite these revelations, it is important to remember that women are much more likely to become victims of the most serious intimate partner violence, including <a href="https://doi.org/10.1016/S0140-6736(13)61030-2">homicide</a>. </p>
<h2>Male victims and their experiences of abuse</h2>
<p>Depp coming forward and speaking out against Heard will likely impact many men who experience female-perpetrated intimate partner violence. Contrary to the <a href="https://www.psychologytoday.com/ca/blog/invisible-bruises/202112/the-difficulty-recognizing-domestic-violence-against-men">commonly held myths and stereotypes</a> that “real men” cannot be abused by their partners, recent population surveys find comparable rates of intimate partner violence victimization among men and women. </p>
<p>For example, the 2015 National Intimate Partner and Sexual Violence Survey in the United States found that about <a href="https://www.cdc.gov/violenceprevention/datasources/nisvs/2015NISVSdatabrief.html">one in three men and women (34 per cent of men, 36 per cent of women) reported experiencing intimate partner violence</a> — including sexual violence, physical violence or stalking. </p>
<p>And in 2019, I <a href="http://dx.doi.org/10.1891/1946-6560.10.2.199">led a study</a> that found that more men than women reported being victims of intimate partner violence in Canada. Also, men seemed to stay in abusive relationships longer than women with 2.9 per cent of men and 1.7 per cent of women reporting abuse in ongoing relationships.</p>
<figure class="align-center ">
<img alt="A close up of a mans face as he looks angrily forward" src="https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467743/original/file-20220608-18-rr5x50.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Actor Johnny Depp sits in the courtroom in the Fairfax County Circuit Courthouse in Fairfax, Va., on May 26, 2022.</span>
<span class="attribution"><span class="source">(Michael Reynolds/AP)</span></span>
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<p>There are barriers to men seeking help when they are being abused. A study I was a part of in 2020 focused on <a href="https://doi.org/10.1177%2F0306624X20919710">abused men</a> in four different countries and found that many did not recognize or call what happened to them abuse — they were “blind to the abuse.” </p>
<p>Other barriers were notions of “manliness” (being a victim may be seen as unmanly), trying to “fix” the relationship, protecting children and simply because they had nowhere to go for help. The <em>Depp v. Heard</em> trial revealed many of these barriers as Heard warned Depp that the jury and world would not believe him.</p>
<h2>No harm to #MeToo and female victims of abuse</h2>
<p>Despite the verdict, which largely vindicated Depp, I believe this case will not negatively impact the #MeToo movement and women coming forward with their claims of abuse. Heard, who <a href="https://www.insider.com/why-amber-heard-lost-her-defamation-trial-with-johnny-depp-2022-6">had a credibility problem in court</a>, is not representative of all female victims of abuse. </p>
<p>As Neama Rahmani, president of West Coast Trial Lawyers, argued, “Instead of being the face of the #MeToo movement, <a href="https://www.insider.com/why-amber-heard-lost-her-defamation-trial-with-johnny-depp-2022-6">she’s the face of a false accusation</a>.”</p>
<p><a href="https://metoomvmt.org">#MeToo</a> is a powerful social movement that is unlikely to be challenged by any specific case, even between celebrities. It’s the #MeToo’s mission to remove systemic barriers that prevent abused women from being heard and taken seriously. And millions of people closely watched how seriously victims of intimate partner violence were treated throughout the case and how <a href="https://www.ctvnews.ca/entertainment/these-are-the-counts-the-johnny-depp-amber-heard-jurors-considered-1.5928663">thorough the jury was</a>. </p>
<p>Contrary to <a href="https://www.thetimes.co.uk/article/johnny-depps-court-victory-over-amber-heard-has-chilling-effect-on-women-0lmnxvrgf">certain advocates’ concerns</a>, the <em>Depp v. Heard</em> case is likely to contribute to a renewed confidence in all victims of abuse — not only women but also men — and in a justice and jury system.</p>
<p>This case dispels <a href="https://www.safesteps.org.au/understanding-family-violence/family-violence-myths-facts/">many myths about intimate partner violence</a> as some people, possibly for the first time, saw a man openly reveal how he was abused, falsely accused by his female partner and how it affected his life, family and career. </p>
<p>We saw and heard a woman share painful experiences of victimization, and whose <a href="https://www.nbcnews.com/pop-culture/pop-culture-news/key-allegations-johnny-depp-amber-heard-trial-rcna30147">claims were only partially supported</a>. I’m certain this case will continue to be discussed in the media and academia and will shape society’s understanding of the complexities of intimate partner violence.</p><img src="https://counter.theconversation.com/content/184424/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexandra Lysova receives funding from the Social Sciences and Humanities Research Council of Canada. She had a research collaboration with the Canadian Centre for Men and Families. </span></em></p>I’m certain this case will continue to be discussed in the media and academia and will continue to shape society’s understanding of the complexities of intimate partner violence.Alexandra Lysova, Associate Professor of Criminology, Simon Fraser UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1843242022-06-03T03:42:15Z2022-06-03T03:42:15ZCould the Depp v. Heard case make other abuse survivors too scared to speak up?<p>Johnny Depp has <a href="https://www.abc.net.au/news/2022-06-02/verdict-delivered-johnny-depp-amber-heard-trial/101115246">won his defamation suit</a> against his ex-wife Amber Heard for her Washington Post op-ed article published in 2018, which <a href="https://www.nytimes.com/live/2022/06/01/arts/johnny-depp-amber-heard-verdict">stated</a> she was a “public figure representing domestic abuse”.</p>
<p>The facts in every case are unique, and the jury is always in a better position to judge these facts than commentators relying on media reports. </p>
<p>Nevertheless in such a high profile case as this, the verdict has a ripple effect that can go beyond the facts. The unfortunate reality is the Depp Heard case is likely to reinforce the fear that women who come forward with claims of sexual and domestic abuse will encounter a system in which they are unlikely to be believed.</p>
<p>Reform is needed to better balance the protection of men’s individual reputations with the rights of women to speak about their experiences.</p>
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Read more:
<a href="https://theconversation.com/the-johnny-depp-amber-heard-defamation-trial-shows-the-dangers-of-fan-culture-182557">The Johnny Depp-Amber Heard defamation trial shows the dangers of fan culture</a>
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<h2>Defamation a tool of elite men</h2>
<p>Depp was awarded more than US$10 million in damages after convincing the jury Heard was a malicious liar.</p>
<p>This is despite the fact a <a href="https://www.washingtonpost.com/media/2022/06/01/johnny-depp-libel-law-uk-us/">UK judge determined</a> in 2020 that it was “substantially true” Depp had assaulted Heard repeatedly during their relationship.</p>
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Read more:
<a href="https://theconversation.com/the-johnny-depp-libel-trial-explained-149217">The Johnny Depp libel trial explained</a>
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<p>After the verdict, Heard commented she was “heartbroken that the mountain of evidence still was not enough to stand up to the disproportionate power, influence, and sway” of her famous ex-husband. </p>
<p>Historically, the common law of defamation was built to <a href="https://www.tandfonline.com/doi/abs/10.1080/09612025.2021.1949822">protect public men in their professions and trades</a>. It worked to both defend their reputations individually and shut down speech about them as a group. </p>
<p><a href="https://heinonline.org/HOL/Page?handle=hein.journals/comulp2&div=6&g_sent=1&casa_token=fybEy5Ip_goAAAAA:mZwcFssrx7DMteRZh-2VpbadOiPG52vukVjaL_zAG2Rr-r9-GIbN1HpUADIArNrKIooONYOmpoKf&collection=journals">Data from the United States in the late 20th century</a> shows women comprise only 11% of plaintiffs bringing defamation suits.</p>
<p>As legal scholar Diane Borden <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/comulp2&div=6&id=&page=">has noted</a>, the majority of libel plaintiffs are “men engaged in corporate or public life who boast relatively elite standing in their communities”.</p>
<p>Defamation trials – which run according to complex and idiosyncratic rules – are often lengthy and expensive, thus favouring those with the resources to instigate and pursue them. </p>
<p>Various defences exist, including arguing that the comments are factually true, or that they were made on occasions of “qualified privilege”, where a person has a duty to communicate information and the recipient has a corresponding interest in receiving it.</p>
<p>But in one way or another, disputes concerning allegations of sexual and domestic abuse usually come down to matters of credibility and believability that play on gendered stereotypes. </p>
<p>It becomes another version of “he said, she said”, and as we’ve seen from the social media response to Amber Heard, women making these types of allegations are often positioned as vengeful or malicious liars before their cases even reach the courts. This is despite the fact <a href="https://www.aihw.gov.au/getmedia/0375553f-0395-46cc-9574-d54c74fa601a/aihw-fdv-5.pdf.aspx?inline=true">sexual assault</a> and <a href="https://www.safesteps.org.au/understanding-family-violence/who-experiences-family-violence/">intimate partner violence</a> are common, and <a href="https://apo.org.au/sites/default/files/resource-files/2017-09/apo-nid107216_1.pdf">false reporting</a> <a href="https://pubmed.ncbi.nlm.nih.gov/26679304/">is rare</a>.</p>
<p>In fact, most victims don’t tell the police, their employer or others what happened to them due to <a href="https://theconversation.com/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">fears</a> of not being believed, facing professional consequences, or being subject to <a href="https://pursuit.unimelb.edu.au/articles/the-online-hate-for-amber-heard">shaming and further abuse</a>.</p>
<p>Heard has received thousands of <a href="https://www.reuters.com/business/media-telecom/amber-heard-says-she-receives-death-threats-every-day-over-depp-claims-2022-05-26/">death threats</a> and suffered relentless mockery on social media. </p>
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Read more:
<a href="https://theconversation.com/almost-90-of-sexual-assault-victims-do-not-go-to-police-this-is-how-we-can-achieve-justice-for-survivors-157601">Almost 90% of sexual assault victims do not go to police — this is how we can achieve justice for survivors</a>
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<h2>Time for reform</h2>
<p>The global #MeToo movement and recent Australian campaigns, such as those instigated by Grace Tame and Brittany Higgins, encourage survivors to speak out and push collectively for change.</p>
<p>But now, ruinous and humiliating defamation suits could further coerce and convince women to keeping their experiences quiet and private. Measures must be taken to better protect public speech on such matters.</p>
<p>One potential way forward is for defamation trials involving imputations of gendered abuse to incorporate expert evidence about the nature of sexual and domestic violence in our society.</p>
<p>For decades, <a href="https://heinonline.org/HOL/Page?handle=hein.journals/hwlj19&div=8&g_sent=1&casa_token=&collection=journals">feminist legal scholars</a> fought for the inclusion of such evidence in criminal trials, especially those relating to matters of self-defence in domestic homicides and issues of consent in rape proceedings.</p>
<p>Expert sociological and psychological evidence can combat and discredit ingrained patriarchal assumptions and myths – comments and questions such as “what was she wearing?”; “why didn’t she fight back?”; “why didn’t she just leave him?”; “why was she nice to him afterwards?” or “why didn’t she tell people at the time?”</p>
<p>Otherwise, pervasive gender bias – often held by both men and women, judge and jury – can undermine the voices and accounts of women before they even set foot in court, before they even open their mouths. </p>
<p>Defamation trials have not traditionally included such expert evidence. But now that they have become a powerful forum for silencing speech about gendered harm, perhaps it’s time they did so.</p><img src="https://counter.theconversation.com/content/184324/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jessica Lake does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Reform is needed to better balance the protection of men’s individual reputations with the rights of women to speak about their experiences.Jessica Lake, Research Fellow, Australian Catholic UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1825572022-05-19T15:12:11Z2022-05-19T15:12:11ZThe Johnny Depp-Amber Heard defamation trial shows the dangers of fan culture<figure><img src="https://images.theconversation.com/files/463397/original/file-20220516-22-d8f3t2.jpg?ixlib=rb-1.1.0&rect=7%2C0%2C4911%2C3274&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Amber Heard and Johnny Depp appear in the courtroom at the Fairfax County Circuit Court on May 5, 2022. </span> <span class="attribution"><span class="source"> (Jim Lo Scalzo/AP)</span></span></figcaption></figure><iframe style="width: 100%; height: 100px; border: none; position: relative; z-index: 1;" allowtransparency="" allow="clipboard-read; clipboard-write" src="https://narrations.ad-auris.com/widget/the-conversation-canada/the-johnny-depp-amber-heard-defamation-trial-shows-the-dangers-of-fan-culture" width="100%" height="400"></iframe>
<p>It’s difficult to scroll through social media right now without seeing at least one post mentioning Johnny Depp, Amber Heard and <a href="https://www.vox.com/culture/23043519/johnny-depp-amber-heard-defamation-trial-fairfax-county-domestic-abuse-violence-me-too">the defamation trial</a> that began on April 11, 2022.</p>
<p>Depp is suing ex-wife Heard for defamation over <a href="https://www.washingtonpost.com/opinions/ive-seen-how-institutions-protect-men-accused-of-abuse-heres-what-we-can-do/2018/12/18/71fd876a-02ed-11e9-b5df-5d3874f1ac36_story.html?">an op-ed she penned for the <em>Washington Post</em> in 2018</a>. Depp says that by presenting herself as a victim of domestic violence, Heard has tarnished his name, despite not naming him in the piece. He is seeking US$50 million in damages.</p>
<p>Many have been eager to take sides, declare guilt, assign blame and condemn <a href="https://www.vox.com/culture/2019/12/30/20879720/what-is-cancel-culture-explained-history-debate">cancel culture</a> on social media and in coverage of the trial. <a href="https://twitter.com/search?q=%23justiceforjohnnydepp">#JusticeForJohnnyDepp</a> and <a href="https://twitter.com/search?q=%23AmberHeardIsAPsycopath&src=typeahead_click&f=top">#AmberHeardIsAPsychopath</a>, among other hashtags, have been trending over the past several weeks.</p>
<p>Fans of Depp claim that his life and career have been “<a href="https://www.independent.co.uk/arts-entertainment/films/news/johnny-depp-career-amber-heard-b2062023.html">ruined</a>” by false allegations of violence and that he is the “<a href="https://www.vanityfair.com/style/2022/04/johnny-depp-amber-heard-victim-of-domestic-violence-cross-examination-testimony">real</a>” victim. <a href="https://melmagazine.com/en-us/story/amber-heard-johnny-depp-trial">Others</a> have written about how <a href="https://www.vanityfair.com/style/2022/05/whats-really-driving-the-memeing-of-the-johnny-depp-amber-heard-trial">disturbing the public treatment</a> of Heard has been <a href="https://www.vice.com/en/article/4aw93j/justice-for-johnny-depp-internet-comments">throughout the trial</a>, particularly as it relates to <a href="https://www.fielding.edu/depp-vs-heard-can-justice-prevail-amid-toxic-stans-and-memes/">claims</a> that she is a “liar,” a “psychopath” and a “monster.” </p>
<p>As a social worker and researcher who has spent the past six years working with people who have survived or been criminalized for domestic and sexual violence, I’m interested in the ways in which this case demonstrates the significant dangers of <a href="https://www.findapsychologist.org/parasocial-relationships-the-nature-of-celebrity-fascinations">parasocial relationships</a> (one-sided relationships with public figures) and their ability to reinforce <a href="http://www.sas.rochester.edu/rdri/about/faq.html">carceral logics</a> (the ways we have been shaped by the idea and practices of imprisonment). </p>
<p>Depp and Heard represent the risks related to the emotional ties fans develop with celebrities and how these relationships can have material implications for how we understand violence and how it should be dealt with.</p>
<h2>What are parasocial relationships and carceral logics?</h2>
<p><a href="https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100305809">Parasocial relationships</a> are one-sided intimate, emotional bonds that people develop with public figures. </p>
<p>The Depp-Heard trial has <a href="https://news.yahoo.com/openline-psychology-parasocial-relationships-celebrities-154525836.html">exposed the dangers</a> of these bonds as fans of Depp are compelled to <a href="https://melmagazine.com/en-us/story/johnny-depp-amber-heart-trial-fan-reaction">passionately defend him</a>, despite not knowing him personally.</p>
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<figcaption><span class="caption">Johnny Depp is greeted by cheering fans and supporters as he arrives to court house.</span></figcaption>
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<p><a href="https://www.routledge.com/Contesting-Carceral-Logic-Towards-Abolitionist-Futures/Coyle-Nagel/p/book/9780367751326">Carceral logics</a> are “<a href="http://www.sas.rochester.edu/rdri/about/faq.html">the variety of ways our bodies, minds, and actions have been shaped by the idea and practices of imprisonment</a>.” And they produce <a href="https://www.ferris.edu/HTMLS/news/jimcrow/brute/homepage.htm">specific images</a> about who perpetrates violence, why and how those people should be dealt with. </p>
<p>When this happens, <a href="https://storymaps.arcgis.com/stories/7ab5f5c3fbca46c38f0b2496bcaa5ab0">the carceral state</a> (police, courts, laws and prisons) is framed as a necessary intervention that effectively addresses violence through arrest, prosecution and punishment of people who commit violence. For example, people who have deemed Heard a liar and the aggressor have called for her <a href="https://twitter.com/f4jofficial/status/1283746469112053760">arrest</a>, <a href="https://www.youtube.com/watch?v=AOyf1hIR-Rg">imprisonment</a> and <a href="https://www.change.org/p/dc-entertainment-remove-amber-heard-from-aquaman-2">removal</a> from her role in the <em>Aquaman</em> franchise.</p>
<p>Carceral logics cling to assumptions that the system is effective, and ignore the reality that <a href="https://www.vawlearningnetwork.ca/our-work/infographics/sexualviolence/Few-Sexual-Assaults-Lead-to-Court-ConvictionsPLAIN-TEXT.pdf">most perpetrators of violence never see a courtroom</a>, let alone a cell, the <a href="https://www.washingtonpost.com/graphics/2020/opinions/systemic-racism-police-evidence-criminal-justice-system/">systemic issues of racism within a broken system</a>, and that <a href="https://www150.statcan.gc.ca/n1/pub/85-002-x/2018001/article/54893/03-eng.htm">domestic</a> and <a href="https://www.sexassault.ca/statistics.htm">sexual violence</a> continue to be some of the most underreported crimes.</p>
<h2>Violence is a spectrum</h2>
<p>When people develop parasocial bonds with public figures, <a href="https://haaniyah.medium.com/why-the-normalization-of-stan-culture-is-unhealthy-b37fb8024346">sharp lines</a> are drawn between those who are considered good or innocent and those who are considered bad or guilty. When this happens, <a href="https://everydayfeminism.com/2016/04/changing-toxic-fan-culture/">grand assumptions</a> are often made about someone’s character based only on what is represented in the media.</p>
<p>People don’t know Depp or Heard, and don’t know the full history of their relationship. They only know them as <a href="https://www.polygon.com/23068724/johnny-depp-amber-heard-trial-twitch-youtube-tiktok">beloved characters</a>.</p>
<p>These bonds are influencing conversations about what does or doesn’t count as violence. Right now, online abuse of Heard is being seen as acceptable because she has been <a href="https://www.wired.com/story/tiktok-depp-heard/">declared a liar</a> by the social media majority. </p>
<p><a href="https://variety.com/2022/digital/news/tiktok-videos-mock-amber-heard-johnny-depp-1235262321/">TikTok trends</a> have <a href="https://www.independent.co.uk/news/uk/home-news/amber-heard-johnny-depp-memes-videos-b2080102.html">openly mocked</a> Heard’s emotional reactions during testimony, as <a href="https://www.tiktok.com/@sansanjovs/video/7094280235901881606">people re-enact skits</a> <a href="https://www.newsweek.com/tiktok-reenact-amber-heard-fight-testimony-viral-trend-johnny-depp-1705176">of the trial</a> with their pets. Social media users have also made <a href="https://www.marca.com/en/lifestyle/celebrities/2022/05/08/6277d48fca4741fc098b45b6.html">#AmberTurd</a> trend across platforms.</p>
<p>But <a href="https://www.k-state.edu/care/violence-spectrum/">violence is a spectrum</a> and it is deeply nuanced in relationship with <a href="https://www.kidspot.com.au/lifestyle/entertainment/opinion-the-power-imbalance-between-depp-and-heard-cant-be-underestimated/news-story/62e7f6fa27590d08e237a933e8408cb7">power</a>, <a href="https://students.dartmouth.edu/opal/education/introduction-power-privilege-and-social-justice">identity</a> and <a href="https://www.theduluthmodel.org/wheels/understanding-power-control-wheel/">context</a>. When people assign the label of “<a href="https://link.springer.com/article/10.1007/s10612-018-9406-y">abuser/offender</a>” to some and not others, they are deciding which violence is unacceptable and which is excusable. </p>
<figure class="align-center ">
<img alt="A woman with blond hear wears a sweater with a blazer over top, a man in sheriff uniform walks in front of her." src="https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464035/original/file-20220518-13-cupowl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Heard returns from a break in the courtroom at the Fairfax County Circuit Courthouse in Virginia on May 18, 2022.</span>
<span class="attribution"><span class="source">(Kevin Lamarque/AP)</span></span>
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<h2>The impacts</h2>
<p>How could these conversations <a href="https://www.buzzfeednews.com/article/natashajokic1/amber-heard-trial-testimony-now-viral-tiktok-sound">impact</a> survivors when it comes to disclosure? What does it say about who we consider “<a href="https://www.jstor.org/stable/j.ctv301ds5">real</a>” victims and perpetrators? What happens to people whose <a href="https://www.bethepeace.ca/articles-1/michael-johnsons-typology-of-domestic-violence">stories are complex</a>?</p>
<p>While commentary on social media appears as a product of <a href="https://stanforddaily.com/2021/08/23/the-dark-side-of-stan-culture/">“stan” culture</a> — a portmanteau of “stalker” and “fan” — it has tangible implications for socio-legal responses to the issue. </p>
<p>This all plays out in real time. When people decide that those <a href="https://www.nsvrc.org/sites/default/files/Publications_NSVRC_Overview_False-Reporting.pdf">who lie about violence</a> should be punished, we see “<a href="https://static1.squarespace.com/static/5bc4e7bcf4755a6e42b00495/t/5ee11d7cd7419a17d30cc8b3/1591811470934/SFCC_report_en_2020-06-03.pdf">frivolous claims</a>” sections in institutional sexual violence policies and on <a href="https://hamiltonpolice.on.ca/how-to/report-sexual-assault">police portals</a> for reporting sexual violence. </p>
<p>We see <a href="https://www.vox.com/the-big-idea/2018/2/1/16952744/me-too-larry-nassar-judge-aquilina-feminism">renewed commitments to the criminal justice system</a>, regardless of the violence it perpetrates <a href="https://www.acesdv.org/wp-content/uploads/2014/06/Facts-About-Sexual-Violence-in-Prison.pdf">within prisons</a> and in the <a href="https://www.sentencingproject.org/criminal-justice-facts/">mass incarceration</a> of <a href="https://harmreductionto.ca/mass-incarceration">marginalized communities</a>.</p>
<p>What appears to be normal social media activity exposes a much darker reality: that parasocial relationships help entrench deeply harmful conversations shaping how people address and redress domestic and sexual violence.</p><img src="https://counter.theconversation.com/content/182557/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Maddie Brockbank (she/her) receives funding from the Social Science and Humanities Research Council of Canada as a Vanier Scholar.</span></em></p>What appears to be normal social media activity exposes a much darker reality: fan culture often leads to deeply harmful conversations shaping how people address and redress violence.Maddie Brockbank, PhD Student & Vanier Scholar, Social Work, McMaster UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1727432021-11-29T04:10:53Z2021-11-29T04:10:53ZThe government’s planned ‘anti-troll’ laws won’t help most victims of online trolling<figure><img src="https://images.theconversation.com/files/434348/original/file-20211129-21-1cyuuci.jpeg?ixlib=rb-1.1.0&rect=0%2C7%2C5000%2C3315&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Yesterday, Prime Minister Scott Morrison and Attorney-General Michaelia Cash <a href="https://www.attorneygeneral.gov.au/media/media-releases/combatting-online-trolls-and-strengthening-defamation-laws-28-november-2021">announced</a> proposed new legislation aimed at making online “trolls” accountable for their actions. </p>
<p>Over the past few weeks, we’ve heard Morrison decry trolls as “cowardly” and “un-Australian”, language that made it into the talking points at yesterday’s media conference. But is his new-found concern about trolling all it’s cracked up to be?</p>
<p>The proposed new legislation would give courts the power to force social media companies to pass on to people the details of their trolls, so they can pursue defamation action against them. </p>
<p>This decision is largely a reaction to the High Court’s <a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">upholding</a> of the ruling in the Dylan Voller case, which now holds media companies responsible for defamatory comments posted on their social media pages. But there are some things that we need to be wary of in this legislation.</p>
<h2>Defamation isn’t the same as trolling</h2>
<p>Speaking to the media yesterday, Morrison argued this legislation is a necessary means to curb online trolling. But the policy proposal largely deals with issues of defamation, which isn’t necessarily the same thing. </p>
<p>As I have <a href="https://theconversation.com/the-media-dangerously-misuses-the-word-trolling-79999">previously pointed out</a>, trolling is a grossly overused term that encompasses a range of activities. Defamation, meanwhile, is far more specific and legally defined. To prove defamation, one has to prove the content posted has damaged the victim’s reputation. </p>
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Read more:
<a href="https://theconversation.com/high-court-rules-media-are-liable-for-facebook-comments-on-their-stories-heres-what-that-means-for-your-favourite-facebook-pages-167435">High Court rules media are liable for Facebook comments on their stories. Here's what that means for your favourite Facebook pages</a>
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<p>Framing this announcement in the context of the very real harms of targeted online bullying and harassment is, I believe, disingenuous. I say this because those who suffer this kind of harassment aren’t likely to be bringing defamation suits. In short, this legislation won’t necessarily help them.</p>
<p>What’s more, a version of the newly announced powers already exists anyway. The recent <a href="https://www.esafety.gov.au/sites/default/files/2021-07/Online%20Safety%20Act%20-%20Fact%20sheet.pdf">Online Safety Act 2021</a> allows the e-Safety Commissioner to order social media companies to remove bullying or harassing content within 24 hours, or face a A$555,000 fine. Crucially, it also gives the commissioner powers to demand information about the owners of anonymous accounts who engage in online abuse.</p>
<p>Where social media companies fail to provide information about the offending poster, the newly announced laws would see them held accountable for the defamatory content. But that assumes they know this information in the first place.</p>
<p>Social media companies already collect users’ details on sign-up, including their name, email address, country of residence and, increasingly, telephone number. But for many social media platforms, there is nothing to stop users setting up an account with a fake name, using a throwaway email address or a “burner” phone, and then ditching all of that but maintaining the account once the information has been initially verified.</p>
<p>Even if the information provided is correct, it doesn’t mean the person will necessarily answer their phone or respond to an email. As one journalist asked yesterday, should social media companies be held accountable in that instance? The standard <a href="https://community.hrdaily.com.au/profiles/blogs/putting-the-reasonable-person-to-the-test">“reasonable person” assessment in law</a> would likely find not, meaning any defamation action brought against the company itself would likely fail.</p>
<h2>Social media ID laws by stealth</h2>
<p>My main concern with this proposed legislation is that it will prompt social media companies to collect enough information on their users so they become readily identifiable upon request. This seems a very similar concept to the government’s suggestion earlier this year that Australians who set up social media accounts should have to provide 100 points of identification. </p>
<p>That proposal was met with a <a href="https://www.smh.com.au/politics/federal/it-s-a-long-bow-social-media-id-push-dubbed-a-privacy-risk-20210402-p57g7d.html">barrage of criticism</a>, both for reasons of simple privacy, and because some experts, including myself, believe removing anonymity <a href="https://theconversation.com/ending-online-anonymity-wont-make-social-media-less-toxic-172228">won’t fix online toxicity anyway</a>.</p>
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Read more:
<a href="https://theconversation.com/ending-online-anonymity-wont-make-social-media-less-toxic-172228">Ending online anonymity won't make social media less toxic</a>
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<p>The other real issue, ironically enough, is one of user safety. Yes, online anonymity gives trolls a mask to hide behind, but it also allows people to access support for addiction or mental health issues, for example, or for a young LGBTQI+ person in fear of real-world violence or disapproval to find a community online. Online anonymity can be a crucial shield for victims of domestic violence who want to avoid being found by their abusers.</p>
<p>Forcing social media companies to provide users’ details to a court also opens up the possibility of “abuse of process”. This is where the legal process itself is used as a form of intimidation and bullying or, worse, for an abuser to gain access to their victim. The government has assured us the policy will contain safeguards against this, but has provided no detail so far on how this will be achieved.</p>
<p>Finally, it’s worth noting that several of the highest-profile current plaintiffs in Australian defamation cases involving social media defamation are to be found among the government itself. So while it might sound cynical, we’re entitled to wonder whom this policy is really designed to help.</p><img src="https://counter.theconversation.com/content/172743/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jennifer Beckett does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government’s plan to make social media companies hand over trolls’ details aims to make it easier for victims to sue their harassers for defamation. But this conflates two very different concepts.Jennifer Beckett, Lecturer in Media and Communications, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.