Thursday, 15 October 2009

Away with the fairies again and interlocutory injunctions

Libertarianism is a warm, comfy blanket to wrap around one's dislike of being told what to do, and holds up intellectually just so long as you don't think about it too much. If you asked me to choose between Libertarianism and Authoritarianism, I'd pick Libertarianism every time. As long as I don't have to think about it.

DK points us towards a post by Bella Gerens in which the following definition is proposed;

The truth is that advocates of freedom are found all over the political spectrum, but the only true libertarians are the ones who advocate it at all times in all circumstances, from the bedroom to the wallet – who believe that ‘freedom from’ is the only state of being consistent with the dignity and majesty of humankind.

‘Freedom from’ is the most important part of that ideology. Freedom from coercion. Freedom from interference. Freedom from oppression.

Libertarians believe you should be free from coercion – and that you must not coerce anyone else. Libertarians believe you should be free from interference – and that you must not interfere with anyone else. Libertarians believe you should be free from oppression – and that you must not oppress anyone else. Because these are to be universal freedoms: what you do not wish done to you, you must not do to anyone else.

But when you ask to whom this 'freedom from' right should be granted, the answer is rarely 'everyone'. John Stuart Mill, the Libertarian guru, excluded children - and indeed anyone under 21 - from being free from coercion and interference. He also excluded anyone in a state that required them to be 'taken care of by others', all people who are in 'backward states of society' and anyone who is a 'nuisance' to others. Oh, and he qualifies the entire thing by writing that liberty should apply to words but not necessarily to deeds - 'no one pretends that actions should be as free as opinions'.

And Bella sensibly excludes freedom from coercion not to burgle, rob, rape or murder from Libertarianism, on the grounds that these interfere with other people's right to freedom from being burgled, robbed, raped or murdered. You see, you can't talk about freedoms without talking about rights.

And of course we should be free from the effects of the negligence of others; I should be free from your wall falling on me, free from your car knocking me over because you haven't maintained the brakes and steering, free from the oppression of your 200w stereo preventing me from sleeping. And I should be free from the material injury of your reneging on a contract. I should be free from poisoning caused by your selling adulterated foods, free from the material damage caused by your telling lies about me and free from your unwarranted intrusion into my private life without recourse.

I should also be free from being coerced into not making moral judgements about the actions and behaviour of others; my conscience and my morality are personal and an intrinsic part of who I am. I should be free from coercion, interference and oppression in making shared moral judgements with others who are of my mind. For this I need to be free from coercion or restriction in what I write or say or what I print or publish.

And of course all these 'freedoms from' are also rights.

And what has all this to do with interlocutory injunctions?

When the European Convention on Human Rights (or 'freedoms from' if you prefer) was incorporated into English law under the Human Rights ('freedoms from') Act, there was an underlying tension between Article 8 - respect for privacy and Article 10 - freedom of expression; I should be free from unwarranted intrusion but also free from coercion, interference or oppression in expressing myself. Whilst I don't challenge your right to dress up as a Nazi stormtrooper and throw cream buns at a naked rent boy in the privacy of your own bedroom, if you're a public figure I reserve my right to share my legitimate information about it (a statement from the rent boy, say) and comment adversely on your morality.

s.12 of the Human Rights Act, though, provides a sort of safeguard. You can go to court and say 'Look, I have a right to freedom from unwarranted intrusion into my privacy. If Radders publishes his information, I'll be ruined - even though I'm confident that I'd win an action for defamation against him after the event'. The court can grant an interlocutory injunction prohibiting publication on these grounds.

In evidence to the Culture Media and Sport select committee Sir Anthony Clarke, Master of the Rolls, said;

Here, the test you have to establish is that the claimant is "likely to establish that publication should not be allowed". In fact, the House of Lords in a case called Cream has considered what that means. I would recommend anybody who is interested in section 12 to read the House of Lords decision and reasoning in the case of Cream because it does set out in very considerable detail the approach which the House of Lords decided the courts should adopt. If you are thinking about this, I would recommend that you do look carefully at the reasoning in Cream because any new law would have to grapple with that. It is a somewhat nuanced approach but, essentially, the provision is as stated in this statute; namely, that you have to show that it is likely (in the sense of "more likely than not") that you will win at the trial. That is quite a tough test. As compared with other areas of our life, it does give the defendant - the media, if you like - quite a bit of protection. It always has, historically, been very difficult, if not impossible, to obtain an injunction, for example, to restrain the publication of something which is said to be defamatory. If the defendant has indicated that they may wish to justify the allegation, then the general rule is that no injunction will be granted, because it is recognised that freedom of expression is a very important right - as you say, recognised by article 10.
And here is where Libertarians may find themselves in bed with Trafigura and Max Mosley in seeking to restrict free speech and the freedom of the press where this conflicts with a 'freedom from' potential defamation.

As I say, fine as long as you don't think about it.

9 comments:

Blue Eyes said...

Fantastic post, Mr R.

Umbongo said...

In all humility, may I point you in the direction of my comment (12:19) on DK's post where I wrote that, in essence, and citing Roosevelt's (semantically confused) four freedoms, freedom "from" requires taxation and/or coercion while freedom "of" requires that nothing be done. Accordingly, the true libertarian position is to insist on freedom of, not freedom from. I admit I didn't read Mrs Devil's post but relied on DK's summary.

Guthrum said...

I always advocate that you cannot have Libertarianism without Responsibility.

If we are all 'free' we should show a measure of responsibility to others.

Whilst I am free, I impose upon myself enough self restraint not to burgle, not to annoy people at 2am with loud music.

The difference is that I am not coerced by the State/others not to do these things. I am not a child who unless restrained by others will run amok breaking into houses and cars, making anti noise etc.

That is why I think Libertarianism is a moral ethos

Weekend Yachtsman said...

"...excludes freedom from coercion not to burgle, rob, rape or murder from Libertarianism..."

This is mere sophistry.

The most basic statement of libertarianism is that you do what you like as long as you do not initiate force or coercion against others.

Libertarians recognise that you should not rob, rape, or murder others, because to do so is to initiate violence against them.

You don't need to invoke some convoluted circle of double negatives to arrive at this conclusion, nor do you need to assert "rights".

Budgie said...

Libertarianism is childish and boring. Oh, sorry, do I hear, off stage, the sound of lemons being sucked? It is a political ideology - and like all political ideologies it is merely a substitute religion. And as with all political ideologies you are only 'free' to agree with them.

Guthrum said...

political ideologies it is merely a substitute religion.

WhaaaaaaaaaaaaaT !

Oh well saves thinking

Anonymous said...

As far as Trifegura are concerned (or indeed Max Mosley) they have the right to do what they did- AND the duty to take the (since their occurance is vastly more common than their repoting)consequences. I'm not at the moment clear what Trifegura have done- but I'm clear that they wish to evade the consequences. I'm quite clear about what Max Mosley did, and though I personally think that the public reaction was stupid. since their occurance is vastly more common than their repoting (assuming of course that the press reported the public reaction accurately) Mr. Mosley must face the consequences. In short I think that the right to privacy should not be recognised.
Were this implemented I feel sure that interest in escapades such as Mr. Mosley's would soon fade, and interest in more important matters would replace it. Interest in who slept with who, and how, is only maintained by a culture of secrecy whereas interest in who robbed who is maintained by pressing need- not to be robbed.
It seems to me that conservative thought is split between two ideas- the old Tory idea that we be governed by people with a background in government, or at least management, and the more nackground and experience the better, and the old Liberal (Classical Liberal as against the current socialist lite party) view that people be left to govern themselves. The reason we presently have both views (each of which has merits) in one party is that the socialist ideal of government by ex working men is anathema to both- for different reasons of course. I pray that Mr. Brown will succeed in his mission to destroy socialism- then the debate between classical liberalism (which is libertarianism) and classical toryism can resume and benefit everyone.

Devil's Kitchen said...

Raedwald,

"As I say, fine as long as you don't think about it."

Are you referring to libertarianism or your post?

I will try to address this when I have a minute, but suffice to say that I consider this one of your more confused posts.

Oh, and I tend to find that libertarian's think about their political philosophy far more than others—possibly because it does require thinking about.

But you utterly fail to draw the distinction between libertarianism as a philosophy and libertarianism as defined by law—instead crushing them together in some hideous mish-mash.

DK

Raedwald said...

DK -

But how useful is a political philosophy that can't be translated into a legislative programme?