Re: t.s. Eliot question & public domain

On Fri, Jul 28, 2000, Pat Sloane <patsloane[_at_]aol.com> wrote:
>
> On 7/28/2000, Tim Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
> >
> > Except that in England costs follow the case so I'm sure David
> > Irving was required to pay her taxed costs as part of the judgment.
> > Comparatively the US has far less protection against nuisance suits.
>
> He _was_ assessed the costs, which run into the millions. Says he
> doesn't have the money to pay, and I've not heard of his actually
> making a first payment due, I think, in mid-June. I think it will
> be another O. J. Simpson case, where a judgment is no use because
> it can't be collected.
>
> > Note also that the publisher is also usually liable (assuming it
> > is libellous) and the practice in the past has been that publishers
> > indemnify their authors (more by gentleperson's agreement than by
> > law) against such suits. Maybe author-publisher agreements should
> > be more explicit about this?
>
> In this case, Irving sued both the publisher and the author.
> Contracts? Any one I've ever had (four) asks the author to assume
> full responsibility for the costs of any action brought against the
> publisher. Explicit enough, I think.
>
> > > Apparently in England, the burden of proof in a libel case lies with
> > > the defendant rather than the claimant, and Lipstadt would have had
> > > far fewer expenses had Irving pursued her in an American court.
> >
> > No it doesn't. The burden of proof lies with the plaintiff. Note
> > there are some differences in burden, for instance truth is a defence
> > in England (i.e. the burden switches to the defendant), not an absence
> > of truth a positive element of the libel as I think it is in the US.
>
> Look, I'm not an attorney, nor am I English. But check the newspaper
> coverage. It said that in England the burden of proof in a defamation
> case lies with the defendant, and truth is not necessarily a defense.
> Also, the English use of both a solicitor and a barrister -- rather
> than just a single attorney -- had to add substantially to the costs.

This confusion is caused by a difference in definition between those with legal training and those without.

As a matter of formality, the "burden of proof" of a cause of action almost always lies with the plaintiff, at least in common law systems. To meet the burden of proof, the plaintiff must show each element of the cause of action is present. For example, in a defamation case, under British law (and IANABritishL), the plaintiff must prove the following elements:

1. The defendant made a statement (or implied one).
2. The statement was about the plaintiff.
3. The statement is likely to bring (or, better, actually has brought) harm to the plaintiff's reputation.

Once the plaintiff has proved the above facts, it has met its burden or proof. Note that in most cases, none of these elements would be difficult to show. The defendant may then raise defenses. The primary one we've been discussing is the truth of the statement. If the defendant can prove that the statement made is true, then the defendant has a defense to the cause of action and is not liable. Other defenses might include that the statement was privileged. Even Britain recognizes a privilege for statements made in court, for instance.

The difference between American and British law is this: American law (under the Constitutional requirements of the First Amendment) makes the *falsity* of the statement an element of the claim to be proven by the plaintiff. (Actually, in many contexts, most importantly a public figure plaintiff and a media defendant, the plaintiff must prove not only that the statement is false, but that the defendant either knew it was false or had a "reckless disregard" for the truth or falsity of the statement. This is probably the most difficult element to prove, because it goes to the defendant's state of mind)

None of this should be confused with the question of who may introduce evidence of either the truth or falsity of a statement. Either party may do so. The real reason this distinction is important is that proving something like the truth or falsity of a statement may be quite difficult. For example, if I say "Bob Smith eats live worms," how can Bob prove that he *doesn't* eat live worms, even if he hates worms? It can be done, but only by circumstantial evidence, i.e. a parade people testifying that none had ever seen Bob eat worms. If a statement is difficult to proves true or false, this works to the plaintiff's advantage in Britain, and to the defendant's advantage in the United States.

One of the theoretically scarier parts of Britain's defamation law is that it is still a criminal offense as well as a civil tort, so one could in theory go to jail for defaming someone. As an added bonus, private citizens may prosecute crimes in Britain, creating the possibility that a particularly zealous person could manage to put his defamer in jail. This is extremely unlikely, as criminal libel is very, very rare, and private prosecution is even more so (a few years ago there was the first private prosecution in several decades -- I don't remember how many exactly, but I want to say it was close to a century). But the possibility is still there.

As a final note, one regional variation within Britain is that in Northern Ireland, in some contexts (political), truth is *not* a defense (unless the laws have changed recently, with this whole peace process thing going on). There was a case involving Channel 4 a few years back where they were severely harassed in the courts for a program they did on corruption in the RUP (Corruption. Imagine!)

-David Hale
 <dhale[_at_]aggt.com> Received on Mon Jul 31 2000 - 12:23:11 GMT