Rumor mongering and free speech
ICICI Bank has filed a complaint with the police and is planning to approach regulators regarding “malicious” rumor mongering that some brokers and websites have supposedly indulged in-
“The concerted effort to spread malicious rumours could be a new form of economic terrorism (akin to counterfeit currency being put into circulation), the complaint said. According to the complaint, one of the SMSes read, “Kindly withdraw all your deposits and cash in account with ICICI Bank as ICICI Bank has already rushed to RBI for insolvency.”
KV Kamath has issued multiple clarifications on the issue, the credit rating agencies Moody’s and S&P’s have reconfirmed their ratings, a RBI report says that the bank’s CAR is better than that of SBI, and the Indian government has told some of its companies (public sector undertakings) to “increase their deposits in the bank”. A similar thing happened sometime in 2005-2006 when there was a run on some of the bank’s Gujarat-based branches, but things came back to normal pretty soon. Basically, ICICI is “too big to fail”, and even if something goes horribly wrong, there is no way Chidambaram (the Indian government) is going to let the bank go under – its the country’s second-largest bank for god’s sake; we are no Iceland, and we are not a laissez-faire economy either. That said, the situation is similar to the March 2008 rumors about Halifax Bank of Scotland (HBOS) – short sellers and their trash ‘n’ cash strategy.
Well, this post is not about ICICI Bank, or the credit crisis – let Chidambaram, the RBI and the Indian banking sector deal with the headache – but about free speech. If you had asked me about this a week back, I would have said rumor mongering, slander, libel, defamation – anything that results in damage to someone’s reputation (and therefore business) is not covered by free speech, and that action should be taken against the “perpetrators”. But, today, I feel that there is no such thing as a “right to one’s reputation”. Sure, if someone slanders me, it will make me very angry and if I had the time and money to traverse through the minefield that is the Indian Justice System, I might even be tempted to get the law involved. But I am now convinced that slander is not a legitimate exception to freedom of speech. The right to free speech, if it is to mean something, has to be an absolute one.
In For A New Liberty: The Libertarian Manifesto (pdf), Murray Rothbard writes-
It has generally been held legitimate to restrict freedom of expression if that speech has the effect of either falsely or maliciously damaging the reputation of another person. What the law of libel and slander does, in short, is to argue a “property right” of someone in his own reputation. Yet someone’s “reputation” is not, and cannot be “owned” by him, since it is purely a function of the subjective feelings and attitudes held by other people. But since no one can ever truly “own” the mind and attitude of another, this means that no one can literally have a property right in his “reputation”. A person’s reputation fluctuates all the time, in accordance with the attitudes and opinions of the rest of the population. Hence, speech attacking someone cannot be an invasion of his property right and therefore should not be subject to restriction or legal penalty.
It is, of course, immoral to level false charges against another person, but once again, the moral and the legal are, for the libertarian, two very different categories.
Rothbard goes on to say that if laws on libel did not exist, people would be less willing to believe a particular piece of gossip unless it was supported by evidence. The existence of the laws only makes them believe in gossip because, if it were false, “why doesn’t he sue for libel?” is the question they ask. It thus becomes a case of guilty until proven innocent as far as public opinion is concerned. According to him, the law discriminates against the poor because the rich can use it to suppress genuine free speech – poor people don’t have money to hire lawyers and fight court cases to prove their innocence. While specifically addressing the case of banks, he writes-
It is also illegal, under our banking laws, to spread rumors about the insolvency of a bank—an obvious case of the government’s extending special privileges to banks by outlawing freedom of speech in opposition to their use.
In Law, Property Rights and Air Pollution (pdf), Rothbard writes-
Legal and political theory have committed much mischief by failing to pinpoint physical invasion as the only human action that should be illegal and that justifies the use of physical violence to combat it. The vague concept of “harm” is substituted for the precise one of violence.
[...]
In the law of torts, harm is generally treated as physical invasion of person or property. The outlawing of defamation (libel and slander) has always been a glaring anomaly in tort law. Words and opinions are not physical invasions. Analogous to the loss of property value from a better product or a shift in consumer demand, no one has a property right in his “reputation”. Reputation is strictly a function of the subjective opinions of other minds, and they have the absolute right to their own opinions whatever they may be. Hence outlawing defamation is itself a gross invasion of the defamer’s right to freedom of speech, which is a subset of his property right in his own person.
In his post on “Freedom of Speech”, K.M. says that speech “is just a form of action. There is nothing about speech that does not apply to other actions.” Only those actions that result in an initiation of force (contractual fraud is initiation of force; shouting “fire!” in a theater is an initiation of force against the property of the owner) can be subject to government regulation. About the impossibility of outlawing lies, he writes-
The initiation of physical force (whether direct or the violation of a contract) is an objective standard. There can be no honest disagreement about whether a particular case involves the initiation of physical force in the presence of witnesses or evidence. Truth is often not an objective standard legally nor does it apply to all statements. A statement such as “X is incompetent to complete project Y on time.” is a matter of individual judgement and a prediction about the future. Truth does not apply to it. (Update: Look at the comments below for more on this) A statement such as “Candidate X believes in sorcery” cannot be judged objectively as there is no way to either prove or disprove it. A legal system that allows laws without objective standards will soon disintegrate into an arbitrary rule of men. (emphasis not mine)
In a reply to a comment on his post, K.M. clarifies that the “concept ‘objective’ as applied to law means ‘demonstrably true’, not ‘corresponding with reality’”, and that it is only in the presence of “concrete physical evidence” that a conviction (retaliatory use of force by government) can be made. What about lies – false assertions? This is what he has to say on the subject-
There are two positions on punishing false assertions that I can think of:
1) A person making a false claim should be punished if the claim results in damage to others
2) A person making a false claim should be punished irrespective of whether it causes damage.
I believe you are in favor of the first. Evaluating whether a false claim resulted in damage and determining the extent of damage necessarily involves a judgement (in the sense of my previous comment). The judgement involved becomes even more non-objective (in a legal sense) if you include emotional damage or damage by a chain of consequences. It is impossible (even in principle) to have an objective implementation of laws that punish such damage.
The second position that any objectively false claim should be punished implies that men has a legal responsibility to always speak the truth. I will not go into detail here, but this position is absurd.
Read his complete post and following comments.
I think that in the face of all these (convincing) arguments, laws that penalize slander, libel, defamation, rumor mongering or any action that is not an initiation of force are nothing but a restriction on freedom of speech and expression, and are therefore unjust.
Consider the following situations:
1)A man falsely and maliciously shouts “Fire” in a crowded theatre. There is a stampede, people die, and the theatre suffers great damages.
2)Another man maliciously (and knowing the consequences) spreads an objectively false rumor about a bank. As a result, there is a run on the bank, which suffers huge losses and eventually is forced to close down, causing many investors to lose all their savings.
Would you consider the first initiation of force and the second not? If so, why?
Abhishek
October 14, 2008 at 4:55 am
1. In this case, the man has initiated violence against the theater owner and should be punished for that crime. The stampede is a result of people not confirming whether the building is really on fire – their succumbing to herd mentality and losing their life, or getting injured in the process is their own fault. Even in the worst of cases, premises can be emptied without having to resort to panic. Panic is the state where reason takes the back seat and irrationality reigns.
2. A run on the bank is, again, the result of people not confirming the facts of the case. The man cannot be held liable for the same. What if a group of people holding accounts in the bank suddenly decide at the same time that they need to withdraw all their money at once, and the bank (which follows fractional reserve banking) collapses at a result?
In both cases, the outcome is the same, and the decisions are the same; the only difference is in how the people made their judgment. Since judgments are subjective, the law cannot be used to punish the stimulus in either case.
So, [1] is a case of initiation of force on the theater owner – it does not apply to the people suffering injury; [2] is not a case of initiation of force.
Aristotle The Geek
October 14, 2008 at 10:51 am
I might be missing something, but I am unconvinced. I don’t see how shouting ‘fire’ is an act of violence against the theatre owner. He isn’t exactly destroying theatre premises or anything.In my view, the situations are pretty analogous. Yes, the first happens inside another person’s private property and the second does not, but I don’t see why that is relevant, unless the theatre makes people sign a contract that says that cannot shout ‘fire’.
Abhishek
October 14, 2008 at 11:19 am
Initiation of violence does not necessarily have to mean destruction of physical property. If I walk into someone’s home without their permission, I am trespassing, and this is initiation of violence. That I probably won’t get shot because those folks don’t consider me a threat and didn’t think any harm was done does not change the fact that I violated their right to their property.
A theater is a place where you go to watch a film, and snack, maybe – it is an implicit contract. Its not a place where you can do whatever you want, because it is private property and your behavior is subject to the rules set by the owner. You cannot purchase a ticket and then give a political speech, or disturb others who have come in to watch the same film by talking on your cellphone. The ticket gives you the limited right to watch the film, that’s all. Any other action of yours that causes the show to be disrupted, or causes actual property damage (broken furniture due to a stampede, for example) is a violation of the rights of the theater owner, and a breach of contract.
This is what Rothbard says about the whole problem-
Aristotle The Geek
October 14, 2008 at 3:52 pm
So, if I spread the bank rumor inside the bank, it would be actionable?
Anyway, I guess I will have to differ with you on the topic of defamation law. Reducing the act of shouting fire purely to disruption of the theatre to an extent trivializes the matter I think. As a purely practical matter, I do not think that the herd mentality, in the theatre case, is easily solved; in an extreme situation like that, I’d say there is an implicit contract, not just to the theatre owner, but also to the other viewers to not shout ‘fire’. In other words when your words have an ‘imminent’ danger of harming another person, it can justifiably be taken as initiation of force. Note the use of the word ‘imminent’; this will not cover offensive or hate-speech or any kind of opinion, but only situations like the fire-theatre, or a situation in a dark mountain where you tell someone to step to his left, knowing there is a deep gorge there.
On related grounds, I support defamation law. Note again that defamation law does not apply to any kind of opinion, however harmful to the reputation of the person. It only applies to objectively false statements.
Abhishek
October 14, 2008 at 9:30 pm
I had said some of these things in this old post, where I clarified my free-speech exceptions.
Abhishek
October 14, 2008 at 10:15 pm
“So, if I spread the bank rumor inside the bank, it would be actionable?”
Yes and no. For example, they could simply throw you out. The bank is a place where you engage in banking activities. Since you are not doing that, you might be told to leave. They won’t be able to charge you for spreading rumors; only for breach of an implicit contract.
“Reducing the act of shouting fire purely to disruption of the theatre to an extent trivializes the matter I think.”
If freedom of speech has to be protected, situations have to be considered in a dispassionate manner. People dying during the stampede does not change the fact that the crime was against property.
“As a purely practical matter, I do not think that the herd mentality, in the theatre case, is easily solved;”
Whether it is a theater or a dark mountain, regardless of what anybody else says – “fire” or “turn left”, you are responsible for your own actions. You hear the words and take a judgment call on it. If you believe that person, you run or fall; if you don’t, you stay where you are. In no way is that person responsible for your fate unless he pushes you in the theater or down the gorge.
That there is no easy solution to the problem does not change the fact that it is your action or inaction based on your judgment. That said, as far as theaters are concerned, surely smoke detectors and fire alarms are better indicators of a fire than someone shouting fire. As for the gorge, I think its a lifeboat scenario. What are those people doing inside a mountain? Who can objectively prove that X knew about the existence of the gorge? Who owns the mountain? These questions need to be answered.
“in an extreme situation like that, I’d say there is an implicit contract, not just to the theatre owner, but also to the other viewers to not shout ‘fire’.”
Why consider only the extreme situation? The implicit contract holds true even if you keep on at your cellphone. When you do not let people watch the film because of your actions, you are committing a breach of contract with the theater owner, and violating the limited property rights of other viewers.
“In other words when your words have an ‘imminent’ danger of harming another person, it can justifiably be taken as initiation of force.”
Threatening someone is one thing-
Others taking harmful decisions based on your lies is something completely different. In the first case, you are the one responsible for battery or assault, and therefore ‘imminent’ has some value. In the second case, your words do not harm or “have an ‘imminent’ danger of harming another person.” It is their decision that is responsible for the eventual harm.
“Note again that defamation law does not apply to any kind of opinion, however harmful to the reputation of the person. It only applies to objectively false statements.”
I assume “objectively false statements” refer to statements that are demonstrably false – lies. So if X lies (not opines) about an incident and that lie harms Y (because A, B and C made a judgment call based on that lie and pulled out of a lucrative business deal with Y), X is liable under the libel et al laws? Now here is the problem. Objectively false statements are irrelevant here; the lie did not harm Y. A, B and C pulling out of the deal is what caused the harm. What has to be proven here is that A, B and C made their judgment based on X’s lie. If that is proven beyond doubt, and also that the lie was indeed a lie, the question arises as to what were A, B and C doing relying on X’s statement when proof is available (somewhere) that X is lying? Even if proof was not available to them then, they simply believed X and pulled out of the deal purely based on such a statement; they made a judgment; they acted. How does X become liable for damage when its A, B and C’s action that caused the actual damage? This is what K.M. calls “damage by a chain of consequences”.
“Kisine kuch kah diya aur tumne maan liya! Tumhari akal kya ghaas charne gayi thi!” – I think these words sum up the whole defamation et al debate – opinions and judgments.
Aristotle The Geek
October 14, 2008 at 11:32 pm
I read the post you linked to, and as you have said, it contains the same (two) exceptions that you have defended here-
* demonstrably false ’statements’ hurting others should be prosecutable.
* words that have an ‘imminent’ danger of harming some one is initiation of violence, and hence is prosecutable.
And I think I have covered both scenarios in my previous comment.
Aristotle The Geek
October 15, 2008 at 12:26 am
“If freedom of speech has to be protected, situations have to be considered in a dispassionate manner. People dying during the stampede does not change the fact that the crime was against property.”
So here’s the thing, the crime is both against property AND against the other viewers.
“Why consider only the extreme situation? The implicit contract holds true even if you keep on at your cellphone. When you do not let people watch the film because of your actions, you are committing a breach of contract with the theater owner, and violating the limited property rights of other viewers.”
I agree completely. The difference between the shouting ‘fire’ and cellphone situations is not one of kind, but one of degree. It is like the difference between slapping someone and beating him to almost the point of death. So while both the cellphone and the shouting fire are breach of implicit contract and proprty rights violation, they deserve different punishments.
“Others taking harmful decisions based on your lies is something completely different. In the first case, you are the one responsible for battery or assault, and therefore ‘imminent’ has some value. In the second case, your words do not harm or “have an ‘imminent’ danger of harming another person.” It is their decision that is responsible for the eventual harm.”
Agree they are different, but disagree on the inapplicability of the imminent criterion.
“How does X become liable for damage when its A, B and C’s action that caused the actual damage? This is what K.M. calls “damage by a chain of consequences”.”
My whole point is that there are narrow circumstances when “damage by a chain of consequences” is actionable.
““Kisine kuch kah diya aur tumne maan liya! Tumhari akal kya ghaas charne gayi thi!” – I think these words sum up the whole defamation et al debate – opinions and judgments.”
Can’t take that comparison seriously. There does exist something called implicit contract. When there is time to check or reason to doubt, or you act foolishly, you are responsible for your own actions. There is something fundamentally different between the fire/mountain examples and a normal situation when there is time to check or no reason to believe. The difference lies in the imminence of consequences and in the implied level of trust.
–
I agree with you on the (in)applicability of property rights to this whole matter and I also agree that “reputation” is not a private property. Where we disagree, I think, is on the notion/existence of implicit contracts. I guess we should agree to disagree on this issue, unless one of us comes with a new or more persuasive argument :)
Abhishek
October 15, 2008 at 12:39 am
“I agree with you on the (in)applicability of property rights to this whole matter”
I guess that was unclear — I meant that I agree with you on how property rights come into this picture (i.e. shouting fire is a violation of property rights, spreading false rumors is not.
Abhishek
October 15, 2008 at 12:46 am
Sorry for the repeated posts, but there is another point I wanted to explain.
I have justified fire/mountain and similar examples under “implied contract” hypothesis. It is however, less clear how defamation (which is, and ought to be a civil wrong, not a criminal offence) is covered by this concept. In this context, I would like to make it clear that I think here the implied contract is between the speaker and the hearer, not the speaker and the victim. So when the speaker makes an objectively false statement with grave negative consequences, the hearer is defrauded. However, as a practical matter, it is more reasonable to pass on the right to sue to the victim. My views on this matter closely resemble libertarian/anarchist David Friedman (son of Milton Friedman) though I don’t agree with his market for tort claims approach.
” I don’t think I have ever written on the subject. From a moral point of view, it seems to me that the only person who might have a claim against the defamer is his hearer, who might argue that he was the victim of fraud. I don’t have a right to have you think well of me, or even not to have you think ill of me for bad reasons.
The economic argument for defamation law is that while the people who believe the false statement (and so don’t go to me even though I’m the best doctor in town, say) may be the real victims, they are a dispersed group and so unlikely to sue. I, as the person defamed, bear a much larger cost than any one of the people who believed the defamation, so have a much stronger incentive to sue. Think of it as analogous to a bounty system, where the money goes, not to the person who was injured by the criminal, but to the person who brings him in.
One possible way of making these two arguments consistent would be to have the sort of market for tort claims that I have discussed elsewhere. If you can get transation costs low enough (by having people sell a bundle of all minor tort claims to a middleman, who then rebundles for resale to the people who will sue), you would expect the labelled party to buy up the claims of the people who believed the libel and then sue on their behalf.
Of course, that still leaves you with the question of under what circumstances your telling a falsehood to me that I believe should be actionable, which isn’t entirely clear to me.
I’m not sure what my father’s views are, but I would expect them to be similar to mine.”
I hope these comments have clarified my position on my free-speech exceptions to you.
Abhishek
October 15, 2008 at 3:39 am
Before I proceed, let me summarize/ clarify my position on the issues involved.
* M1. Y’s reputation is not his property; reputation is the sum of multiple judgments people have about Y. So nothing X says or does in relation to Y’s reputation is actionable.
* M2. X is only responsible for those actions and words (words are a form of action) of his that directly harm Y (coercion; threat). B acting on the basis of information (true or false) conveyed to him by X that results in harm to-
a) Y’s reputation is not actionable (in the case of X as well as B).
b) that results in harm to B’s property or life is not actionable.
* M3. Elaborating on [M2], B’s actions are based on his own judgments. Even if his judgment is based on something he hears or reads – whether objectively true or false – it still does not excuse the fact that the action is his, and that it is based on his own interpretation of the facts of reality.
B using a shortcut by believing X, instead of trying to find out the facts for himself does not make X guilty. If the facts are un-ascertainable, the case against X is even more weak.
* M4. Contracts – implicit or explicit – cannot be forced onto people. Its something that is purely voluntary. A theater ticket is an implied contract. A bank account is an implied contract. People walking in a park don’t have any implied contract between themselves. The town gossip and the crowd surrounding him are not bound by an implied contract.
In law, contract is something that is based on transfer of value. Without value, there is no contract. Implied contract is a term that refers to actions that by their very performance create a contractual relationship. For an example, read [Oral and Implied Contracts] and [Quasi-Contracts]. The difference is apparent; the first has solid legal grounding; the second is a catch-all theory that shouldn’t exist.
Now, let me see if I understand your position (lets assume that the statements are objectively false – lies, and that truth is a valid defense; and lets try to talk in terms of X, B and Y, I think who is what is pretty clear).
* N1. “I guess that was unclear — I meant that I agree with you on how property rights come into this picture (i.e. shouting fire is a violation of property rights, spreading false rumors is not).”
“It is however, less clear how defamation (which is, and ought to be a civil wrong, not a criminal offence) is covered by this concept. In this context, I would like to make it clear that I think here the implied contract is between the speaker and the hearer, not the speaker and the victim. So when the speaker makes an objectively false statement with grave negative consequences, the hearer is defrauded. However, as a practical matter, it is more reasonable to pass on the right to sue to the victim.”
That is, you support defamation law based on an implied contract between B and X, not X and Y. And that as a practical matter, Y should be able to sue X for the damage caused by B’s actions. This allows you to claim that Y does not have a “right to reputation” and that X’s action do not violate Y’s property rights (“reputation” is not private property), but that since B cannot (or might not) sue X, Y should do it.
* N2. “There does exist something called implicit contract. When there is time to check or reason to doubt, or you act foolishly, you are responsible for your own actions. There is something fundamentally different between the fire/mountain examples and a normal situation when there is time to check or no reason to believe. The difference lies in the imminence of consequences and in the implied level of trust.”
“I have justified fire/mountain and similar examples under “implied contract” hypothesis.”
That is, you support action against X, either by B or the government (in case B is dead) since B injured or killed himself by believing X; but this is only when B trusts X and there is no time to verify X’s statement (the criteria of “imminence”). And that in normal circumstances, B would not have a case against X. All this is again based on an implied contract between X and B.
—
The above was purely a clarification. Now, continuing with the debate, your whole position is centered around the following assumptions-
* an implied contract exists between X and B, as speaker and listener.
What is the basis of the implied contract? What is the value on which the contract is based; what does B offer to X or X to B, that allows B to take action for breach of contract, a right that is passed on to Y on utilitarian grounds?
I don’t see any contract here. X says something; B listens to it and then goes and does his own thing. X is not forcing B to do anything (that would be coercion, and hence criminal). Why should X pay the penalty for B’s stupidity or carelessness? Why should X’s right to free speech be restricted?
* B’s inability (due to paucity of time) to judge the facts of reality bind X into speaking the truth.
Since B cannot judge for himself, X has to speak the truth? What if X simply keeps quiet, offering no suggestions, or if he knows the way out, quietly slips out? Does B have a case then?
There is no way B can demand that X speak the truth just because B cannot determine something for himself. B shouldn’t put himself into a situation where the only thing that separates him and death (or injury) is a noble act by X (gorge), or X keeping his mouth shut (theater).
Aristotle The Geek
October 15, 2008 at 4:42 pm
I missed out on the apparent contradiction between [N1] and [N2].
On one hand you say (w.r.t. imminence) that if B had the time to verify X’s statement, X is not responsible for B’s actions (N2). But on the other hand you claim (w.r.t. the reputation case) that X defrauds B when he makes objectively false statements (whether it relates to B or to Y is immaterial) (N1).
Aristotle The Geek
October 15, 2008 at 6:05 pm
Specifically referring to your last comment, and also to make sure that we understand each other’s positions accurately, let me state mine once again.
You will observe from my old post, that I treat defamation (situation 1) and situations like fire-in-theatre/stepping into gorge (situation 2) differently. What are the differences?
In situation 1, X says false things to B which harm Y. The harm to Y is indirect — stemming from loss of reputation. In this case, I allow Y the right to file a civil suit (but not a criminal suit) against X. I do not demand imminence.
In situation 2, X says a false thing to B which directly, and gravely harms him, in person or property. In this case, I allow B to sue X criminally. I do demand imminence.
With that prologue, let me go to my positions.
There are two kinds of implied assumptions at work here.
Covering things like situation 1: When you are a disseminator of information, there is indeed some value involved between your listeners and yourself. If you are a newspaper, they paid for it. If you are a blogger, there are often ads etc. Even if that is not the case, your listeners are taking the time to come and listen to you because they believe you have credibility. In short it is the implied credibility that gives this transaction value. If you give up your credibility, (for instance, by stating at the outset that your words are not to be taken reliably) then they do not have a right to demand that you speak truths. Failing that, however, I claim that there does exist an implicit contract, between you and your listeners, that you will not make demonstrably false statements.
All this is between X and B. Where does Y come into the picture? As I said, as a practical matter, we let Y sue for damages to his reputation as a result of X’s falsehoods. So now there are three things involved in calculating the extent of damages:
a) How much was X’s credibility? In other words, how strong was the implied contract? If it is a newspaper or an expert in his field or someone expected to ‘know’, it was fairly strong. On the other hand if I am gossiping with some friends, it is weak.
b) How large was X’s readership? It is obvious why this is important. The larger the size of this set, the greater the numbr of people defrauded.
c) What was the actual damage to Y? This is important for two reasons. First, since we are giving Y the right to sue, there is an important need to quantify the extent of money we award him. Secondly, in a sense the degree to which X has defrauded B depends on the “importance” of the lie, and the damage to Y gives a reasonable measure.
So that’s my position on defamation laws. Some discussion:
Why civil and not criminal? Because of the nature of the contract and the type of harm involved.
There is no contract that one can’t opt-out of
! I have already covered this. You can opt-out of it, by stating publicly that you cannot be taken seriously. Or by losing your credibility by other means. Or simply by putting a disclaimer before your statement of facts. (This has the effect of your statements being interpreted as ‘opinions’ rather than claimed facts. Opinions are not actionable).
Where is the value that justifies the implied contract? Have already gone through this. Your credibility, coupled with your implicit or explicit claim of authority, gives this speech value. People spend time listening to you and take actions based on your words because they think there is value in it. If you wish to give it up, you have the right to do so. That way, you will not be sued, but you will also sell fewer newspapers.
Why not reverse the ‘default’? In other words, don’t put the implied contract unless explicitly stated by X that he is responsible for his claims. This is not a fundamental question. So I think we should see what works better. In a real-world sense, few would want to go through a legal contract each time. Better to make it implicit, and allow people to opt out.
Covering things like situation 2: In this case, to live effectively in a society, I contend that everyone has a responsibility – in life-boat situation – to not maliciously lie in a manner that could gravely harm or kill him. Once again this is a implied contract. What’s the value transfered? The value is something we need and expect to live fruitfully. Without that basic level of trust, society would be a mess.
Hey, I want to opt out. You cannot force a contract on me! Yes, you can opt-out. By letting everyone you interact with know of your position. If, despite that, people choose to come hiking with you, it is their responsibility. Probably theatres won’t want you either.
Why is this a criminal and not just civil liability? Because the harm involved is much graver.
Why do you demand imminence? First of all, because this is a much more serious situation, it is important to make sure that the contract isn’t too strong. I am not demanding that you cannot lie. Simply not in certain situations, unless you have told those effected by your lie beforehand that you are not to be trusted. In any case, if the matter is not imminent, individual responsibility trumps the contract, in my view.
On the other hand, I do not demand imminence in defamation because that is a very different situation, with different stakes.
–
Noe let’s address some of your questions.
“What is the basis of the implied contract? What is the value on which the contract is based; what does B offer to X or X to B, that allows B to take action for breach of contract, a right that is passed on to Y on utilitarian grounds?”
I already answered this.
“I don’t see any contract here. X says something; B listens to it and then goes and does his own thing. X is not forcing B to do anything (that would be coercion, and hence criminal). Why should X pay the penalty for B’s stupidity or carelessness? Why should X’s right to free speech be restricted?”
Again the contract can be opted out of, individually and in each situation.
“Since B cannot judge for himself, X has to speak the truth? What if X simply keeps quiet, offering no suggestions, or if he knows the way out, quietly slips out? Does B have a case then?”
The default implied contract only demands that X not maliciously lie in grave situations. If he merely keeps quiet and Y gets hurt or dies, that would be immoral but not actionable. Unless there was an additional contract involved.
“I missed out on the apparent contradiction between [N1] and [N2].”
I hope I clarified that matter.
Abhishek
October 16, 2008 at 12:38 am