Defamation vs. personal insults

Truth is a universal defense but it's not mandatory. Of course most people accused of libel/slander (defamation is the catch-all term) will try and argue the point. However, it's assumed that the statements are true until the plaintiff makes the case that it's not.

The one making the claim in a defamation suit is the plaintiff, not the defendant. The assertion isn't what the defendant said, it's that what the defendant said is both false and damaging to the plaintiff. So then the burden of proof falls to the plaintiff.

Character doesn't really factor into it; issues of opinion aren't grounds for a defamation suit. If someone makes a factual claim about someone else that is both damaging and false, then person has the ability to sue them for slander (spoken defamation) or libel (any other medium of communication defamation). It's up to the plaintiff, the person who initiated the suit, to prove that the claims made by the defendant are viewed factually and intended to be taken that way (and that they are false), and that they were damaging.

Either you're not getting this or you're just looking for an argument. I'm willing to argue Jurisprudence if you want but let me clear up a few things.

Scot's Law does not recognise the words Slander and Libel, its uses only defamation as it sees no need for a difference between spoken, written, broadcast, graphical etc defamation. This doesn't mean that I don't know other, less civilised common law systems choose to make distinction for no particular reason. (Lnp less civilised common law system being a lawyers joke)

The one making the claim in the defamation suit is the Pursuer, not the defendant. Just face it Pursuer is the better term, regardless I already stated that other systems use Plaintiff instead of Pursuer; I thought I was clear.

Character is specifically regarded in Scots law since Nyles V Murdoch I believe. Again this may be due to our more refined use of simply using defamtion, not substraites thereof.

IN SCOT'S LAW the Pursuer need only prove that a reasonable person would be insulted or that a reasonable person would believe the defendants action to be intended as insult (/attack on character/reduce standing in society etc). If this is shown then the only defence applicable to the defender is to prove that the statement was factually correct.

Its not like Scot's law usually puts the onus of proof on the defendant but in this case it does make more sense, otherwise you could go around making statements that can't easily be disproved, or that can't be disproved at all. Additionally, the Law should not make the use of defamtion "easy". If you are making a statement intended to hurt someone else it is only logical that you should have to prove it, not the other disprove it.

While that is a childish argument, I disagree with you wholeheartedly. Plaintiff is clearly the superior term.

As to the substantive issue: you agree that the assertion here is the one that the plaintiff/pursuer is making (specifically that the defendant defamed them), so the burden of proof is on the plaintiff/pursuer to show that the defendant's statements are false and damaging. Insult doesn't factor into it, it's all about whether or not the plaintiff can prove that the statements made by the defendant were intended to be factual/would likely be perceived as such, that the statements were factually false, and that they caused some kind of damage to the plaintiff. All of that is on the plaintiff. The defendant, naturally, defends against these accusations in a variety of ways. Truth just happens to be universally acceptable as a defense, so that no matter if the plaintiff can prove that the defendant's statements were damaging, and intended to be taken factually/would likely be perceived as such, if the statements were true then they are valid and there is no tort.

The thing is that when the suit is filed, the claim is not whatever the defendant said. The claim is that what the defendant said is damaging, intended to be taken factually/would likely be perceived as such, and false. So the burden of proof is on the plaintiff to prove that all of those things are true. The plaintiff must prove that the defendant's claims are false, or there is no tort, because truth validates speech.

Pursuer is clearly a more easily understood term...

No, the plaintiff/pursuer should only have to prove that a reasonable person would find the term insulting/damgaging to character or social standing etc. After that the onus then falls on the defender to to prove he was valid in making such a statement.

The thing is when an action is raised (our term for suit (again much clearer)) the claim is indeed that the assertion was false and that it would reasonably cause damage. However, Scottish Jurisprudince argues, quite sensibly, that when someone makes a statement that is damging all that the pursuer need do is to is prove it is hamrful. After that it is the defendant who must show that the assertion was factually correct. Again the defendant has asserted something and the pursuer has shown it is reasonable harmful. Thats it, in delict harm has been done, a duty of care was broken: the defender is left with only one logical and reasonable defence: to prove he was factually correct. (And by assertion that he owed a duty of care to others to reveal such information but thats deep judicial framework there)

Also please try and address jurisprudence, I know the American legal system is different but at least word it so your argument doesn't sound as if your relying on the "This is how we do, so it must be right". Scots Law has had a lot longer to think about it after all.

I agree with everything Stalin says.

But just to reiterate my original point. It is your belief that any limitation on people speech is bad but of course the two sentences, and I'll use a different word other than gay for clarity:

x member has Down Syndrome.
x member is a fucking retard.

(this member is known to have downs syndrome in this example)

Both statements are equally true and are expressing the same fact (though the first is more specific) by allowing people to only say the first we aren't somehow disabling their ability to state the truth, we're just making sure they do so in a way the isn't intentionally offensive or tactless.

This isn't like people getting worked up over nothing, the word retard has negative offensive connotations built into it's core. the only reason you would call anyone a retard is to insult them. If you believe people should be allowed to go around purposefully trying to upset people without consequence then I wouldn't like to live in your world...

Mhh, I seem to have failed to notice the thread change here and got into a Jurisprudence argument/ comparision of US and Scots Law with Kala.

In all honesty its hard to see how a Defamation law could function in the forums. But to be honest people shouldn't be protected from insults in a free speech society; only from false accusations.

Well, illegal speech is already defined by the status quo. We don't need to define privacy violations or death threats as illegal by site rules because they are illegal according to law. Insults are not illegal and should not be illegal in any circumstance, and in particular if the statement is true. Defamation provides a limited recourse for insulting behavior but protects true statements, which the current rules do not. As far as maintaining free speech goes, which is my primary goal, defamation is infinitely superior to a personal insults rule. If you do not consider free speech a priority then fine, but don't hide behind the pretense of maintaining the false semblance of free speech that currently exists on the forums.

If the issue was raised in a circumstance where the defamation rule existed instead, then it doesn't matter how insulting the statement is. Defamation protects you from falsehoods, not 'meanness.'

Of course it's likely there wouldn't even be a valid case for defamation in this example, no matter the truth of the statement, because it's not intended to be a statement of fact, but an opinion on someone's character (without context this is considerably more likely than the alternative, where FeyBart actually suggested that Romulus was a homosexual as a point of fact, hence the 'likely').

None of your statements are worth anything in a real environment because none of those points has any bearing on the success and purpose of defamation in the real world. We aren't omniscient, and we'll make mistakes and won't always find the whole truth, but that's the case under any system. It's no less just of us to adjudicate improperly under a defamation rule than it is for us to adjudicate improperly with a personal insults rule.

The truth is always a defense in defamation. As the topic title and previous discussion indicates, we're not talking about every issue or every situation in existence, we're talking about the merits of a defamation rule over a personal insults rule. The arcane points you're making here have absolutely no bearing on that discussion.

That's not true at all. Nor does it have any bearing on the validity of one system over another. If everything is actually subjective then both systems are equally flawed.

We do that in the status quo and would continue to do so if we switched to a defamation rule. The difference would be that the cases coming in wouldn't consist of 'he hurt my feeeeeeeelings, ban him!' but would instead require users to actually be defamed.

So we are censoring them, then. If people want to be intentionally offensive or tactless, let them. Their reputation will take the hit. It is not our place to criminalize meanness or crudeness.

No you shouldn't. Sometimes you want to insult people. In those circumstances you should use the insulting statement.

Yeah, you actually can. Not so here though. Ohhhh no, we've got to protect everyone's precious feeeeeeelings. Fuck that noise.

And there's a more important term called 'free speech.' People should not be punished for saying mean things or saying things in a mean way. It's codified political correctness, simple as that.

There are times when it's necessary to insult people granted, but if you insult me to my face or in real life I have plenty of opportunity to stop you, either by you being alienated or I could just punch you in the face for being a prick. On a forum there really isn't the same level of opportunity, I can only contact you really by typed message, there is no real risk to your social standing. Your view applies well enough to real life social situations because there is a social consequence, that consequence really doesn't exist to anywhere near the degree on a forum & I struggle to see why anyone would want to breed a community where users go around being intentionally offensive to one another.

If you think there's no social consequence just because you can't deck the person who said it then you're sorely mistaken. People have many methods of recourse after being insulted, such as defending yourself, insulting the other party, ignoring the other party, ignoring (with the site feature) the other party, not being a little girl, etc. And of course there is the greater impact that being a douche has, like people treating you as a douche. Those who want to troll, be a dick, or continually insult others have to face consequences for doing so, and their reputation will change according to what they do. To some, maintaining a positive, friendly reputation is important. To others such as myself, what other people think of what I say or do is secondary, tertiary, or just not on the map at all.

We do not need and should not try to force people to follow some arbitrary standard of political correctness.

For once we agree, what people think of me is not important. Worst comes to worst I can simply leave if I am that unwelcome which is precisely why the online social stigma is irrelevent. But in the same way if someone came into my house and rather than treating me with a level of respect decided to insult me, be deliberately insensitive, I would kick them out of my house so too should this forum because it wants a certain type of person, a certain type of discussion.

If people choose to come onto the forum and insult members then frankly they can go fuck off to another forum. In real life social consequences matter, on a forum they might happen but they don't really matter & surprisingly the people they will matter to, are the active members you want to encourage. At the end of the day do you want to encourage a community where people treat each other & their ideas with some level of respect and attack and support beliefs/ideologies on the beliefs merits and flaws rather than simply resulting to ad-hominid attacks.

None of the above. A free community is the only one worth having.

Then my next question is, this isn't a free community by your standards, your view doesn't seem to have a lot of support & wont be implemented in the foreseeable future then why are you here? if such a community is 'not worth having' but apparently is worth spending your time in.

Entertainment value. I mean obviously I would have left if I didn't get something out of the site, but the restriction of speech and information is a deep and serious issue. Of course I'm in a position to change that, or at least mitigate the harms imposed on us all by the status quo, so I do where and when I can and haven't pretended to do anything but. Free speech is paramount and the fact that we lose more members to censorship than any other rule violation should indicate to you that current policy has a huge and primarily negative impact on the userbase.

I think that you overplay the amount we have 'lost' due to the insult rule. Moreover I feel if the rule was lifted there would be an eventual exodus of members because the forum would simply descend into a place people don't want to be.

I think also you overplay the idea you are really in a position to change anything with regards to the rule; I just think is one of the those things that Stalin would not allow to be changed, and that members who on the whole not support & I'm inclined to agree with Stalin's position. I don't think such a community would be better, in fact I'm fairly certain it would be worse.