I was at the UK Supreme Court yesterday to hear the judgment in Lachaux v. Independent Print Ltd and another. It was a significant challenge to section 1 of the Defamation Act 2013, which long-term readers of this blog will recall was the (successful) end result of English PEN’s Libel Reform Campaign.
Section 1 of the law introduced a test of ‘serious harm’ before a claimant could sue. It was designed to expand the space for free speech by weeding out trivial claims.
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The Lachaux case hinged on the semantics of that section of the law. Do the words “has caused or is likely to cause” refer to real world effects, past or future? Or do they just mean that the words have a tendency to cause serious harm to reputation.
In debates about reproductive rights, a crucial concept is over ‘when life begins’ and when a complex collection of human cells starts to have a moral claim. Some people say this must be the ‘moment of conception’. Others talk about ‘viability’, when certain senses come online; or they talk about the moment of birth.
For a long time now, I have been meaning to write a post about the ‘free speech moment’, after which we have a moral duty to defend the right to freedom of expression, even if we find the speaker or their statements odious. During a free speech controversy, asking oneself when that moment might be is a useful exercise, which helps to clarify what one thinks.
The Free Speech Moment I refer to might be the point of publication. Or in other contexts: The clicking on the ‘tweet’ button; The curtain up; the the exhibitionopening; The opening notes of the first song; the speaker clearing their throat.
Before I mire myself in questions of when and whether to publish shocking images, I should—must—begin by writing about the fact of Aylan Kurdi’s drowning and the refugee crisis in general. If the central argument for publishing an image of a dead boy is that it ‘gets people discussing the issues’ then I think I have an obligation to do so, even if these thoughts have been stated earlier and more eloquently, elsewhere. Continue reading “On the ethics of publishing the photo of Aylan Kurdi”