The argument against anti-defamation laws

Most people accept anti-defamation laws as a legitimate restriction on free speech. For a starters, the laws have always existed so it just seems normal to keep them. If we remove them then society would be plunged into chaos as everybody accused everybody of being a paedophile, a thief, or a murderous nutcase… and if those rumours are believed then they could cause lots of damage to the victims, such as loss of work and/or loss of friends. And that’s just not fair.

Perhaps. But before we give up on fully free speech we should fully understand the arguments.

Defamation involves (1) somebody lying about you, leading to (2) other people holding a bad opinion about you, leading to (3) a bad outcome for you because of lack of trade. None of these things are nice. But they are all voluntary and, all else being equal, none of them should be illegal.

There are two common confusions at this point. First, some people suggest that they “own” their reputation and so if you damage their reputation then you have effectively stolen from them. This is clearly untrue. A reptuation comes from people’s opinion, and each person owns their own opinion. If you have an opinion about me, that opinion is owned by you, not me. So you are entitled to change your opinion at any time for any reason and you have not stolen from me.

Second, some people take the bad outcome to be proof that something must be wrong. But here they misunderstand two very different sorts of bad outcomes. There is an important difference between stealing something (so you have made somebody worse off) and refusing to give something (so you have refused to make them better off). With defamation, the bad outcome comes because people refuse to interact with you. People may refuse to buy from you, or people may refuse to be your friend. But in a free society nobody has an inherent right to the property or friendship of other people.

So in a perfectly free society (where all human interaction is voluntary), defamation would be legal. But sometimes the voluntary outcome is not the best outcome, and so we should consider whether the government should over-ride freedom to try and create a better outcome.

The goal of anti-defamation laws is to ensure that other people can’t ruin your life by spreading lies about you. That is a worthy goal. But does it work?

As David Friedman showed in his popular economics book “Hidden Order“, the best way to establish a good reputation is to actually be a good person. If most people like you and trust you, then even if some people said bad things about you, you will build a good reputation. If most people don’t like you and don’t trust you, then even if some people vouch for you, you will end up with a bad reputation.

For the vast majority of people, this is how reputation is built and maintained. Some people may lie about you, but ultimately the truth is more likely to win out. Or as Thomas Jefferson said “The man who fears no truth has nothing to fear from lies”. And more to the point, the majority of people cannot afford the cost or deal with the complexity of defamation laws, which effectively puts them out of the hands of lower and middle-income families. For most of us (and for most people around the world and through history) it is as though defamation laws don’t exist.

This may lead to the conclusion that defamation laws are irrelevant, but there is one way that defamation laws do change behaviour. Larger organisations and high-income people are able to afford the cost and so are in a position to sue people (or threaten to sue people) who they see as lying about them.

The problem with legislating about lying is that one person’s lie is another person’s truth… and we don’t have a perfect angel available to uncover who is right. In some cases it’s subjective. In some cases we guess at the truth. In some cases people may know the truth, but be unable to prove it. A law against lying can easily turn into a law against saying anything unapproved by an official authority.

Of course, large organisations and rich people are the least in need of anti-defamation laws because they are most able to loudly and convincingly defend their reputation. But anti-defamation laws gives them another weapon. For people talking about or writing about large organisations or rich people, the threat of being sued (even if there is only a 10% chance of being found guilty) is a strong incentive not to say anything negative. This stiffling of free speech is very real, but impossible to measure; we cannot count the number of statements that were not said.

The consequence is an uneven playing field where larger organisations and rich people have an extra advantage over the rest of us.

A more balanced playing field would be achieved by having an independent 3rd party (like a court or another trusted institution) making a determination, but without any legal sanction. It could be like a non-government “court of truth” where people go to defend their reputation, but without restricting freedom of speech. People could speak freely without threat of being sued, and people could rest comfortably knowing that they will always have the opportunity to defend their reputation.

A final problem with anti-defamation laws is that once you start undermining freedom of speech it becomes easy to find numerous other excuses to restrict free speech. Consequently, we are now facing a range of laws that prevent people from giving offense, such as anti-vilification laws. It is not nice to lie about people, or to vilify people, or to tease people or offend people… but that is what freedom of speech means. If we re-define “freedom of speech” to mean “saying only nice things approved by the government” then we are making a mockery of freedom.

Originally Published by Dr John Humphreys at johnhumphreys.com.au

John Humphreys

Dr John Humphreys is an Advisory Board member of LibertyWorks.

He is the Executive Director of the Professional Research Institute for Management and Economics (PRIME) and the Human Capital Project (HCP), both of which operate in Cambodia. He is also the President of the Australian Libertarian Society (ALS), Deputy Director of the Australian Taxpayers Alliance (ATA), and a Justice of the Peace in QLD.

"John holds a PhD in economics from the University of Queensland. He has lectured at universities in Australia, Dubai, and Cambodia, published two books & dozens of articles/chapters, and has given presentations in Chicago, Hong Kong, Jakarta, & around the world. Outside of academia, John has worked for the Australian Treasury and done consulting jobs for ASEAN, World Bank, and various industry groups.

43 Comments on "The argument against anti-defamation laws"

  1. I do feel that in the age of the Internet, defamation laws are somewhat redundant. You can’t make a law against the Streisand Effect, hehe:)

  2. The flaw in his argument is that Large Companies can’t sue for defamation.

  3. Another flaw in his argument is that defamation only applies to lies. It can apply to things that are true but of no public benefit and ridicule. Dragging up something someone did earlier in life for example.

  4. Liberty does NOT work, the big party’s make sure it doesn’t, that’s why GCA and the Greens can say what they like about LAFO’s

  5. Local Maccas, KFC and other outlets will be well pleased.

  6. I would like to read a few counter arguments to this.

    • It’s not that hard to argue that defamation should be illegal. There might be a legitimate argument for tightening up what constitutes defamation, but real defamation should absolutely remain illegal.

      It mostly gets thought of in the context of celebrities and politicians who don’t exactly starve as a result, but it applies to every day people just as much.

      Hypothetically, imagine I’m a primary school teacher. You might not like me and you might decide to spread the word that I’m a pedophile by way of social media, blog posts or even media if you’re well connected. Obviously my school will be forced to fire me and there’s 0 chance of getting a job anywhere else.

      Do you honestly think a crime hasn’t been committed there? There’s an act, an intent to harm, a victim and measurable harm. Would you suggest I have no recourse in such a situation?

  7. Defamation – where you can be prosecuted and found guilty even if what you are saying is correct and true.

  8. Brian Banks would say otherwise.
    Falsely convicted of rape, pardoned and let out, yet still smeared as a rapist, and is no longer able to pursue a football career.

  9. Companies can’t sue for defamation.

  10. There needs to be a balance between freedom of speech and defamation. And we have that in the courts. Just as statue keeps those that would be physically harmful to others in line. The threat of defamation keeps those that would be verbally harmful in line.

  11. I had a neighbor had Fake pedophile notices about him in people mail boxes , it Read ” John doe ” ( not his real Name ) and beneath the words Pedophile . IT read ” Do your Children suffer Grass seeds in the Anal or Vaginal cavity ??’ , Well I John doe can remove them with my Patented T.G.A. approved technique known as as ” pedophiliac Therapy ” . It went on to talk about who he removes them with his penis and gave his contact details , if people wanted Grass seeds removed from their kids . Several years before this man had testified at a trail the defendant had recently got out of jail and stuffed this crap in everyone;s mail boxes . A reasonable case for defamation .

  12. Freedom of speach does not equal freedom to lie. Others need to follow Rebel Wilsons brave lead.

  13. She’s donating it to charity. That’s what happens when you keep repeating a lie even when you know it’s a lie

  14. I have never read such crap in all my life.

    • So give us your counter argument.

    • If someone publicly lies about me or my integrity (particularly so it profits them) and that damages me or my reputation or causes me financial loss I should have the right to seek compensation.

    • Roger Berick you read the bit about how you don’t own your reputation, it’s held and owned by others, right?

    • Roger Berick That was addressed in the article. So you’re simply repeated the claim for which a rebuttal has already been presented. Did you actually read it or just decide at the outset that you disagree with it?

    • Am i permitted to disagree with the article as i reject it totally as absolute bullshit which if you read my post you may have realised.

    • Your allowed to do whatever you want, but when asked to give a counter-argument, to explain why you think it’s bullshit, you seem unable to do so.

    • My counter argument was in my post.
      Causing loss in any way due to libel or defamation etc. should be remedied at law.
      If i called you a paedefile for example and you lost your job and your house and your wife left you and took the kids and you were forced to live on the street as a result of my false accusation you would be ok with it?
      I don’t think so.

    • Hugh Winwood-Smith waiting on your counter counter counter argument.

  15. i had an old boss who did this to his ex employees as he always had sour grapes he was a real jerk.

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