Defamation vs. personal insults

You have a right not to be defamed, its recognised by various means and names in almost every legal system.

On OP, the basic rules could do with some revising in this regard, at the moment its just insults that we criminalise not an actual defamation rule. Also an expansion of the appeals reports would greatly help in this regard as defamation is very situational.

There should really be a code of conduct for Mods and Tribunes, but I think it should only apply when they are operating in their official function. Though I admit differentiating this may be difficult.

Just more activity on the forms would be nice, never mind interactivity. I often come on here and find nothing of interest happening at all...

MOD EDIT (KALALIFICATION): Discussion moved to a separate topic.

I think that people seem to think that any restriction on what people can and can't say somehow negatively infringes on their free speech. For example in the closed reports there are a number of rejected reports where the post was written in a way that was deliberately cold, brash & quite disgustingly worded. I agree with the sentiment being expressed however, I disagree with the way it is said. Ultimately all we're asking for is that when people post x, y or z they do so in a way that is respectful without in ANY way changing the overarching idea.

Defamation is even more lenient than what we currently allow. For instance, under the current rules there are circumstances where you can state the truth but still be punished because it's insulting. If we were to use a standard of defamation instead (which I would prefer), then only false statements would be in violation of the rules.

"x member is gay" - could be a true statement.
"x member is a fag" - is an equally true statement, but is clearly offensive in most contexts since fag is word with negative connotations.

The fact is that the vast majority people can get their point across without resulting to being individually insulting or just choosing to speak in a way which could be said to be at best 'in poor taste' and at worst 'abhorrent' & the rules should reflect that.

Gay is a word with an equally negative connotation in the sense you're using it. However, neither of those two statements constitutes defamation unless it can be established that 'x' is not actually a homosexual. Either of them could potentially constitute insults, depending on what the minimum standard for insult is, and that ambiguity is largely why I detest this personal insult rule. If we simply replaced it with a defamation rule then we would only need to worry about statements which are damaging and false. There is a reason you can't prosecute someone for calling you a 'douche' in the real world, after all...

No matter how much we define it, the rule will remain ambiguous at best. The standard we've been using for what constitutes insults is essentially the same rule of thumb we use for obscenity in the US: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it..."

Now that quote is talking about pornography, a subject infinitely more obvious than 'personal insults.' The hazy legal minefield of making the victim's feelings an integral part of the case is entirely detestable. Defamation we can define and objectively detect. 'Personal insults' we can do neither with.

- No, no it isn't. In the first sense I am simply stating a fact, perhaps as a response to the question 'Are there any gay members'. Clearly the latter response is insulting & the first simply isn't. I would/do call my gay cousin a 'puff/poof' as banter but I would never call him a 'fag'

- I do know what defamation is & what constitutes it or does not constitute it. My point was to show that a defamation rule would allow for all manner of insults provided they are true. I suppose your point would be that if it's true why not say it but of course, as we've just seen if a member kept calling a gay member a fag then I wouldn't be okay with that & neither should you.

- I disagree, unless the person saying it is some sort of publicly homophobic bigot in which case contextually it is probably an insult in 99% of cases the simple statement that someone is gay would not constitute an insult. Most people I associate with realise that being gay is not a negative thing and the ones that do say that it is get treated with contempt.

The trouble with the defamation rule is that it's even more complicated to establish the "truth" in some cases than it is to establish whether or not something is insulting. An insult can be judged by sentence structure (what they say) & context (why they say it). The truth has to be established due to evidence but in a lot of cases I could make a claim about you based on something you say, and you can contradict it with some other evidence but there might be a large array of evidence on both sides which make it such that the jury's out on whether or not it is fair to ascribe something to someone.

@FeyBart
Fixed it.

I think it's been long established by South Park that gay is a pejorative.

Which is fine, because the truth should never be silenced no matter whose feelings it hurts.

I have a bigger problem with punishing someone for saying something that is true than I do with someone getting their feelings hurt by it.

Maybe it's different for the British, but here it's extremely common for people to use gay as a substitute for 'lame,' 'that sucks,' or more generally as just 'bad.'

Example
Me: "I just got a ticket..."
Ronald: "That's gay."

Me: "Man, this monkey class is really OP."
card: "YEAH IT'S SUPER FUCKING GAY!"

Me: "I don't like Tom Cruise."
Matt: "Yeah, Tom Cruise is gay."

I sincerely doubt that it's more difficult, but in the few instances that it is, it's 100% more objective. We can always absolutely determine whether one member is defaming another member. We can never absolutely determine whether one member is insulting another member. Close only counts in horseshoes and hand grenades, not jurisprudence. Unless we decide that it does, but then we're being unjust.

Are you 7 years old? Do the people you associate with going around calling people gay as an insult? Because when I want to insult someone I generally call them a prick or ask them why they bother getting up in the morning. If you were calling someone that isn't gay 'gay' you would have a point. Let's look at a potential conversation with my friend James across the hall.

Me: James you're gay
James (sarcastically): Yes, well done Miles any other random facts you want to state about me?

I wonder if that worldview has anything to do with the reason your modship was questioned & people keep calling you a dick all the time?

We do have that here too (although it tends to dissipate when people grow up), but when it's applied to someone who is actually gay it wouldn't be generally be an insult (unless of course it was meant as one, that's what context is for).

Descartes would disagree.

"Is it true to say x member is y" - while there is an objective yes or no answer, the trouble is we only hold subjective opinions & while evidence can be used to argue for why your subjective opinion == the objective truth it would be naive to say you could always 100% establish that your subjective opinion is the correct one. There would still be debate, in the same way libel/defamation cases are not black & white.

EDIT: @Uni

Take a look at the examples I edited in.

I don't see what this discussion has to do with the issue at hand. Clearly your understanding of the word gay is entirely different from the one I'm familiar with; doesn't this strengthen my argument that the personal insults rule is entirely too subjective?

"...even if someone doesn’t like what we say, as long as we are being truthful or stating a subjective opinion that cannot be mistaken as fact [we are protected]. It can only be defamation if we knowingly present damaging falsehood as though it were a fact." So in other words the only times that defamation would become an issue is if there is an issue of fact in question. We can always absolutely determine the truth about an issue of fact, and while our judgement may not extend that far in average cases, we can certainly be more confident in our conclusion than we can in any personal insults case.

Well both cases are issues of privacy, and are clearly distinct from insults/defamatory speech. I think it would be extremely easy to add a separate rule (or even one-sentence attachment to the defamation rule) that prohibits the leaking of unwanted personal information. In fact, we should probably have one of those now.

None of those examples show the word gay being used to describe someone who is gay.

No, it's exactly the same. Gay is used to mean a lot of things:

1. A homosexual
2. Happy/Jolly etc.
3. Lame/Crap etc.

WOW! Words can have multiple meanings. Who knew?
In all your examples gay is being used as no. 3. When applied to things that aren't homosexual that is generally want is meant since definition 2 is mostly defunct.
But when you apply it to someone who is known to be gay (or people generally) it would almost always take on the form number 1 where it is simply stating a neutral fact or being stated as part of a question "is person x gay?".

Okay given that option there wouldn't be debate, but we'd end up with an anarchic situation where genuinely insulting things would go unpunished while the fact that someone didn't use the word "probably" would end in punishment. Actually now I think of it there would still be debate because if I say "x member is probably y" you can still argue over whether it's true to say that. Since probably is heavily subjective.

All the stuff about 'gay' is irrelevant and I seem to have mistaken your position anyways.

Oh no, we could no longer punish people for speaking freely! Someone might get sad!

Not using 'probably' doesn't make a statement factual (or give the intent of factuality). Nor does attaching probably make a statement nonfactual.

Making a false, damaging, factual claim about another member would constitute defamation, and that's it. I can't even think of a likely scenario where one member defames another, but here's a ridiculous one to illustrate the issue:

"pedro3131 has stated in the past that he supports child pornography, and has posted illicit materials of that nature on the website, but is escaping punishment because of his status as a mod!"

This would constitute defamation, though I doubt pedro would actually press the issue on a case this ridiculous.

At its core, what is a forum? It's an arena for discussion.

What's the most valuable commodity in a discussion? The freedom to speak your mind.

Protecting speech, not punishing it, should be the standard we strive for. Certainly it's the one that I aim at. It's better to let every 'speech criminal' go unpunished than to punish a single innocent man for what he says.

Well Kal is right when he says that the word "gay" is an insult. Because it is. However, it's not as insulting as "fag" because "gay" could mean that somebody is homosexual, or that something is lame or stupid, or it could be used as an insult, whereas "fag" is just an insult. But let's not forget that "fag" doesn't even mean "gay" anymore, it means "annoying motorcycle driver".

Fags get out!

I

This is the point where we are to disagree. While I also am against free speech being infringed I do not feel that restricting not what people say but how people say things in the interests of members is a bad thing. As I have said before my (and others) issue is not what people say but how they choose to say it. But we'll leave it there I think, I don't see a chance of a large following of your idea, so until such a point as that becomes the case I shall hold my stance.

no question gay is used as an insult. But it isn't always an insult. Fag on the other hand when applied to people will almost always be an insult & I simply don't think there is any need for people to call each other such a word. Fag in British English is more a slang for cigarette anyway which is why the phrase "can I bum a fag" (bum meaning have) is so amusing to Americans.

I'm guessing defamtion works differently in the states than over here.

In Scots Law defemation is defined as an untrue statement that would, in a reasonable persons view, cause or be intended to cause insult or to reduce a persons caracter and social standing. It is reliant on the defamed to raise an action in delict in such circumstances and it is beholden to the defendant to prove that the statement was true, or that a resonable person would not have been insulted/defamed.

This I think is fairer. It provides for free speech to be preserved including insults but the insults have to be based on truths, which are hard to establish on an internet forum thus making the issuing of insults a very difficult road to go down.

Guys I just thought of a really good system. How about, if somebody feels they have been insulted, then they report it, and it is a moderator's duty to judge whether or not it is against the rules. Everybody wins.

I'm not sure how it works in Scotland because you guys operate in some kind of mixed civil/common law structure, but in the States defamation is a tort (except in a few states, including my own, but then it's only treated as a crime when it's against dead people).

A defendant doesn't need to prove their statements are true, the plaintiff has to prove that they're false (and damaging). It's not assumed that the statements are false, it's up to the plaintiff to make that point. As makes sense, of course, and as we would use here.

Indeed we do (though arguably most common systems are now somewhat mixed), but I know Tort: its the English version of what we call Delict. I know English tort uses Slander and Libel while Scots only has defamation.I don't know why it would fall under the criminal courts, its decidedly a civil matter; at least in Scotland. Unless your referring to the whole Crimes and Misdemenour thing?

The Definition seems very similarbut in Scot's Law a defendant does need to prove their assertion is true if challenged by the pursuer (I think you call this plaintiff). It is regarded as being more equitable that he who makes the assertion carries the onus of proof, as is only logically reasonable I think. After all it should not be neccesary for a man of noble character to have to consistently prove his character, rather those whishing to debase him should have to prove reason for such debasment.