Comment by nkurz
1 year ago
I've only skimmed the paper, but I didn't find anything that would clearly distinguish between things that harm someone's reputation in a justifiable way, and things that harm it in an unjustifiable way. For example, if the CEO of a startup has previously been convicted multiple times for financial fraud, it would both hurt their reputation and be beneficial to potential investors to know this. But what if it's only one conviction? And a long time ago? It seems like the whole argument comes down to drawing this line, but I didn't see any real attempt to do so.
A lot of the impulse for this paper seems to be based around "the [claimed] right to a fresh start":
Moreover, if reputational interest is understood as a presumption of good standing, then there is another reason to prohibit true defamation, one that depends upon the presumption, namely what might be called the right to a fresh start. By “a fresh start,” I mean the right to have a misdeed from long ago eventually cease to be part of one’s current reputation, so that it ceases to have any impact on one’s life. ... The interest in a fresh start stands against this veritable life sentence—an interest, instead, in being treated as a new person, no longer associated with a misdeed from long ago.
Yes, if you grant that such a right exists, it might make sense to make it illegal to point out true facts about someone's past. And I can easily see why many individuals would want a "fresh start". But does society as a whole benefit from having such a right? I'm far from convinced that it should be any sort of universal right, and don't see any good way to define when it's applicable and when it's not. Are there good solutions for this problem somewhere?
"Are there good solutions for this problem somewhere?"
There are no simple solutions to a problem this complex as human trust.
But I really do not see, how I can I trust humans more, if it would be illegal to say true things about the past.
Truth may never be hidden, if you want real trust. And there need to be more consequences of lying.
And people should accept, that people change. If someone was stupid in their teenage years 10 years ago, then most can actually assume, that they changed a bit.
But if someone was lying and stealing 20 years ago and is caught doing it again yesterday, I will probably also not trust this guy in 2 years, unless he can convincingly explain why and how he changed.
I think you have identified the crux of my objection to this piece. The OP is mostly talking about cases where a truth about someone is so much more widely known than other truths about them that it becomes overwhelming in perception of that person.
The problem to be solved here is not the liability owed by the reporter of the truth, but rather the way in which our reptilian brains fail to balance that truth against an undoubtedly bigger picture.
"I will probably also not trust this guy in 2 years, unless he can convincingly explain why and how he changed."
As you correctly say, 'there are no simple solutions to a problem this complex as human trust' but your last point is telling. Let's assume your villain provides proof well beyond reasonable doubt that he has actually changed for the better the fact remains that most people will always remember the fact—even many, many decades later. Moreover, I'd suggest that incident forever changes one's perception of the person even if it's almost imperceptibly small.
I claim no great expertise in human nature but from my observations of others and of myself I'd suggest that it is human nature to retain these negative images even if one has no logical reason whatsoever to do so.
It seems to me this is one of the basic underpinnings that drives defamation and why so many have such strong opinions about it.
For instance, to my knowledge I've never been defamed in public nor do I know of any reason why anyone would bother defaming me. I'm hardly controversial, and although I'm certainly no saint, I can't think of anything I've done that's bad enough to warrant someone pursuing defamation against me. (No doubt, there have been many occasions where I've been called an idiot or perhaps even a ratbag in private but I don't consider these amount to defamation.)
Nevertheless, I remain mindful that I could be wrongfully defamed in public for the very reason that others will remember the fact well into the future even though the claim was without merit.
Perhaps this is an evolutionary trait developed out of self-protection or similar, but whatever the underlying reason many remain mindful of the potential damage defamation can cause whether a claim is factual or not.
Incidentally, I know someone who committed a misdemeanor as a youth many decades ago and has been well behaved and kept out of trouble since. That said, on rare occasions someone will still mention the fact.
No doubt the right to have certain facts about oneself forgotten is a complicated matter, and if opinions were scaled just about everyone would have a different view—and, no doubt, those views would again vary according to one's perception of the claimed or actual wrongdoing (if plotted, I'd venture to suggest everyone's opinions would be a 3D graph and no two graphs would the same).
As the old parable goes 'try to please all and you'll please none'.
'try to please all and you'll please none'.
Yes. But I do not want to try to please all.
In case of doubt, for the (potential) victims.
I am dealing right now with a case, where a pedophile tries to sneak into some semi public group activity/festival I am part of. The most frustrating thing is exactly this, some people saying the past where he was convicted is gone (or the conviction wrong) and he changed. Except it isn't and he has not changed (I am certain of because of some things I have heard him say, which are sadly not recorded). And if the conviction would not exist officially anymore, I would have allmost nothing solid against him, that he is in fact not just some weirdo, but a dangerous weirdo who should not be welcome, where I go with my children.
edit:
"Let's assume your villain provides proof well beyond reasonable doubt that he has actually changed"
And if there is no doubt, there is no doubt. Then it would be fine. But I want to judge myself, with as many facts as I can get and not blindly trust. I know people can change. But if people hide their past, I assume they have not actually processed it.
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Seems like the best way for somebody to get over a bad thing that they did in their past is to be forthright in acknowledging that they did the bad thing, and show through their actions how they've become a better person.
In other words, accept responsibility and earn back your reputation.
Hiding the truth seems like the exact opposite of that.
> Hiding the truth seems like the exact opposite of that.
It seems like “true defamation” could be a lie of omission. If someone harps on about a past misdeed but omits N years of atonement, that’s misleading, even if true.
You can historically prove a misdeed, but how do you prove atonement other than a prison sentence ? Even then, how does that prove change ?
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That sounds like the most totalitarian thing in the world.
Imagine I’m considering marrying someone. Do I really not have an interest in knowing their past misdeeds?
A better way is to have strict rules on what you can take into account for certain types of decisions: renting a house, hiring an employee, offering an insurance policy.
But there is no right have the world forget your misdeeds.
If, say, a fraud conviction 20 years ago should morally not preclude running a business[0], then the simple solution is to require statements of long past crimes to include the date range. That handles the concern about misleading people not thinking it was recent. If you believe in fresh starts, "Bob was convicted of fraud in 2003" is not defamatory. It's redemptive.
If the motivation for banning facts is to prevent people from making non-PC judgments based on those facts, then what to do about making true statements like "Bob is Jewish", or "Vic's legal name is Vikram", which might cause discrimination? Is that True Defamation?
BTW, True Defamation is illegal even in the modern day, in UK, if the the defendant can prove truth sufficiently, with some recent protection since 2013. https://en.m.wikipedia.org/wiki/English_defamation_law
In general, making laws to prevent people from doing reasonable things that cause other people to misbehave, is dangerous ground. Usually better to intervene at the stage of the actual misbehavior.
Leadership is the most sacred responsibility, you literally have people’s lives in your hands. You get ZERO slack from me and you better be operating at your absolute best.
Why? It’s possible to do and to teach. I’ve had many such leaders and I’m consistently told I meet these standards so its imminently possible and achievable
There are so many amazing people and leaders in this world that there’s ZERO reason to give someone who has acted badly any additional opportunities to hurt or retard the progress of even one person
I expect to be held to the highest possible standard as a leader and hold leaders to standards of perfection
There are way too many amazing people have not been given enough opportunities for us to give second and third chances to people who have demonstrated that they cannot take care of their people as primary priorities
This stands as an example of the opposite of a universal right. Denying me to true knowledge that someone is awful is abuse. I think we can infer the author knows some real jerks.
Generally speaking, it should always be legal to say things which are true. This is vital to democracy.
(The only exceptions to this should be when you contractually sign away this right, such as a lawyer who enters into a contract with a client and cannot give all their private correspondence to the opposition. Or a soldier who signs away his right to speak freely about troop movements, etc.)