Archive for September 24th, 2012

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Criminalisation of defamation – Ukraine

September 24, 2012

Well, much has been written in the Ukrainian press, many horrified tweets from Ukrainian journalists on twitter, (at least amongst those I follow and those that follow me), and many paragraphs have been blogged about the passing at the first reading, of the law to re-criminalise defamation (libel and slander).

I briefly mentioned it a few days ago and stated I would return to the subject.  Today I do just that, despite the fact that I usually stay well clear of mainstream headline news.

Now to be quite clear, I hold the steadfast and robust belief that defamation, libel and slander are not, and never ever should be criminal offences.  However, there must be necessarily civil recourse for completely false, scurrilous, inaccurate, besmirching of the character of both individual or entity.  If not, then the responsibility inherent to having free speech naturally, and rightly, comes under attack by those wronged.

After all, it is not defamation to ridicule or shame an individual or corporation, despite using ridiculing and shaming words, if those words are based on fact, truth and evidence thereof.  Only when such ridicule and shaming is based on lies and falsehoods does defamation occur.

However, this blog entry is not about the philosophical, moral or ethical limits of free speech.  It is not about the remedies, or lack thereof, available for those who are genuinely slandered, libeled and defamed.  Neither is it about the standards, or lack thereof, of journalists and editors across Ukraine – at least directly.

Today I am going to ponder the effects that the new law, if passed, and there is no guarantee it will be, would have on this blog in particular.

Prima facie, it would have none.  I go to great lengths to insure that anything remotely defamatory in the widest sense of the word, is backed up by quotes, citations, legal judgments etc.  All basic stuff for anybody remotely academic or who has written anything remotely academic.

There are a lot of things I could blog about that I simply don’t for one reason or another.  Very occasionally I invoke the Chatham House Rule, but state as much, when using what has been said but protecting the identity of those that have made the remarks in order to have a more rounded blog entry to read.  More often than not, it is not necessary to invoke the aforementioned rule.

However, that covers what I write, and not what is written in any comments that appear.

Now I have some rules of my own when it comes to comments.  The first and most steadfast rule is that I do not allow any comments sent from a commercial/corporate email address.  Amongst the more than 20,000 comments to blog entries I have made, almost 19,000 have never been published, despite some very good and very wise observations.  In almost all cases the reason is the commentators have used corporate/commercial email addresses – and I will not allow this blog to be used for free/second tier advertising.

I am far more likely to allow ping-backs from corporate bodies, and indeed have done so for many on-line regional newspapers and civil society organisations.  In short, they can quote me, they may even syndicate me, but all such things lead back to this blog when they do so.

So far so good in respect of the proposed new law with regards to what I write and the majority of comments.  However, there is then the issue of the comments from the private email addresses which I would consider publishing as they are not trying to get free advertising by the back door.  A lot of those have also never been published because they are either trolls, are spam, or are quite obviously defamatory and deliberately written to be so.

I am too old to entertain idiots and there really is no need to write like an idiot to make an argument for or against an issue.  It is at my discretion which comments are published and which are not.  Thus anybody who wants to comment here has their freedom of speech subjected to my whim – and that may well be an issue for me under any new proposals – because I have control not only over what I write, but also the comments I allow to be published.

Having read the new proposals, it remains unclear whether I will be responsible for any comments published that are not written by me.  They are, after all, published only by my allowing them to be, and hence the rather high bar I already have in place for comments – with or without any proposed changes to defamation legislation.

Quite obviously, I believe I do have a responsibility over what appears here, even in the comments section, or I would not act as I do.  Others entities though, may think differently when it comes to their comments section, and if that is their policy who am I to argue?

Quite how I would be held to account is another matter.  I write under a pseudonym/nom de plume and always have, and the blog is hosted in the USA.  To hide my IP is not a difficult thing to do, despite the fact I currently do not.  The few thousand readers I have are not really enough to concern anybody in the grand scheme of things either.  Thus to trace me, prosecute me etc, would be more trouble than it is worth should I suddenly become less considered in what I write or allow to be published by way of comments.  In fact any attempt to do so may well increase rather than decrease the profile of this blog.

Neither would the new law necessarily prevent any libelous tweets, facebook or VK entries, again all of which were created under my pseudonym/nom de plume and are all hosted outside of Ukraine.  I could also write libelous and defamatory material on any number of Ukrainian forums of which I am a member and thus, possibly, give the administrators and moderators a dilemma.

To repeat, my view is that defamation, libel and slander should never be a criminal offence.  However, if what is stated for public consumption has supporting evidence, it should not matter whether the course of redress is civil or criminal.  The writer, editor and publisher would be sure of their ground anyway.

I hope that Ukraine will not revert to 2001 when defamation was a criminal offence, but it has to be said that I also have a hope that the standard of reporting also increases where appropriate, as some of it is still rather poor on occasion.  As I have previously written here, to ridicule, shame, and be contemptuous towards another individual or entity is simply not defamation if there is evidence, facts and truths to back up the specifics of what is written.

In the meantime, whatever happens, any comments that may appear here, or not, are still subject to my whim!

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