There are facts, and there are opinions.
Facts are irrefutable statements – truths. When I say that you will die if you jump off a cliff on to the rocks below, that is a fact based on the laws of physics; you are free to prove otherwise by disregarding the statement. When I say that Nathuram Godse killed Gandhi, that is a historical fact.
Opinions, on the other hand, are not statements of fact – but individual judgments; they are subjective in nature. When I say you are a pig, or that I think you are a murderer, or a rapist, or a mad man, or a thug, it does not mean that you are a real pig, or that “I know” for a fact that you murdered, or raped, or robbed someone, or that you have lost your mental balance, but either that “I don’t think” very highly of you, or that “I think” you did one of those deeds, but can’t prove them, or that “I am relying” on hearsay when I say those things.
The laws on defamation/ slander/ libel are based on this distinction. Defamation is a misstatement of facts, or stating “false” facts about someone, and since opinions are not facts, they are not covered by these laws. But it differs from country to country, and even if you call it opinion, there will always be people who don’t like what you say, and will resort to legal terrorism (the act of using the law to make someone toe your line – the truth, or freedom of expression, be damned.) But none of these laws are sound – they are there because jurisprudence – the philosophy of law – the world over is based on legislation – diktats; earlier it was the kings, now it is the parliament.
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.
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.
Read the two posts I have linked to above.
I am writing about it for a very specific reason. A blogger – Chyetanya Kunte – wrote a post on NDTV’s coverage of the Mumbai terror attacks – “Shoddy journalism”. It was his opinion, and he didn’t write charitable stuff either about the channel or Barkha Dutt. NDTV’s coverage of the “event” is old news and is all over the blogosphere (I didn’t watch it – I was with CNN-IBN and TIMES NOW). Kunte has now withdrawn the post in another post that is in legalese. That is truly magical. The only reason I would withdraw a post is because I feel I said something wrong. But the only reason I would withdraw my post “in legalese” is if some one sent me a legal notice – cease-and-desist. Last month, Admiral Sureesh Mehta had some not-so-charitable things to say about the electronic media in general, and the channel in particular. And NDTV sent a letter demanding a retraction. Don’t know if he did.
Two similar incidents happened in 2005. The first was the shutting down of Mediaah by threats from the Times of India. The second was the IIPM-Arindam Chaudhri vs. JAM MAG-Rashmi Bansal-Gaurav Sabnis war.
We are a philosophically and ideologically bankrupt nation. And so I don’t expect any media organization in the country to practice what they preach – its one rule for themselves, another for the rest of the world. I think NDTV should apologize to Kunte for what they did. That’s the only way this damage can be contained, if it can be contained at all. The shit is piling up all over the blogosphere and no right-thinking individual will patronize the channel if they don’t. And that’s my opinion. In any case, I haven’t watched 24×7 in over six months; I do watch NDTV India sometimes. But now that this has happened, its the end of NDTV as far as I am concerned. Regardless of what happens in the future, I won’t touch the channel even with a ten-foot bargepole.