So if I got this right it's the open letter (second link) that was deemed defamatory, and not the story from the first link?
> The Defendants accept that they have never had any evidence to support the allegations apart from the two unverified claims published in coordination with the Open Letter. They were never in a position to make any informed judgement on the truth of the allegations, and did not seek clarification on any of the allegations from the Claimant.
To be exactly correct, he sued for defamation four (4) of the signatories of the open letter, because the open letter was the explicit call to action to cancel him. He can only file suit against persons within the jurisdiction of his home court in the UK, the majority of the signatories, as well as the two accusers are not UK persons and cannot be sued in that context.
Whether or not that vindicates him is an exercise to the reader.
I make no claims or judgement either way. I just acknowledge that information asymmetry exists as do jurisdictional limits. It's not possible in this case for him to ever be fully vindicated due to the limits of the legal system, but whether it's enough to vindicate him for you is up to you.
In the US, getting someone convicted of libel or settling for it is pretty solid proof. It means the person being libeled likely could prove that the person making the claims knew they were false and maliciously spread them anyways.
In the UK, it's more akin to an allegation. It provides us substantially less information than a similar proceeding in the US would.
> In the US, getting someone convicted of libel or settling for it is pretty solid proof. It means the person being libeled likely could prove that the person making the claims knew they were false and maliciously spread them anyways.
Proving actual malice is only a requirement if the plaintiff is a public figure per New York Times v Sullivan. People who are not public figures have a lower burden of proof, though it is still substantially more stringent than in the UK.
> People who are not public figures have a lower burden of proof, though it is still substantially more stringent than in the UK.
While state rules for private figures differ, the Constitutional limit (as articulated in Gertz v. Welch) prohibits liability without fault, that is, there must be at least negligence even if the statement is factually false, and also prohibits punitive damages without actual malice.
In the UK, defamation is strict liability (there is no fault requirement) in addition to truth being an affirmative defense rather than falsity being an element of the tort.
Negligence is a significantly lower standard than actual malice, and presumably a person who has been defamed would be seeking significant actual damages anyway (the sum of lost wages for a SWE following a false SA allegation, for example, would be quite large even in the absence of punitive damages).
They (can) have different, less stringent elements, not fewer (state rules vary, but there can be a less stringent fault element than actual malice, though there must still be fault — defamation cannot be strict liability in the US.)
Both Weinstein and Cosby provide good examples of where hard evidence was extraordinarily difficult to come by. Much of the evidentiary value comes from the large volume of credible (time, place, access, similar stories, etc.) accusations; those accusations largely required an initial few to be brave enough to come out with their stories for the rest to come forward.
The UK's setup permits such abusers to prevent press coverage of these initial victims, and to significantly chill the climate for subsequent accusers.
Both setups have their upsides and downsides, but I'm less a fan of the one that lets serial predators evolve their strategies to be more and more immune from consequence.
In the UK, you can be held liable for stating a reasonable conclusion based on the facts available to you after reasonable investigation that turns out to be (viewed by a court as) false, while in the US there must in any defamation case be some degree of fault as well as falsity.
Which can mean, sometimes, that the perpetrator is good at covering their tracks and selects victims who can't sustain a prolonged legal and public opinion battle trying to prove their case.
They need only allege that someone libeled them to impose significant legal costs on that person, costs that for many are not feasible. You don't get a public defender.
If you read the document, the allegation that they made false statements remains unproven. They admit only to not being able to support the claims with evidence other than the original allegations.
The original source of the accusations that they were supporting in the open letter is also notably not named in the suit.
In most court proceedings, it must be positively proven ("beyond a reasonable doubt" in some cases, "by the preponderance of the evidence" in others) that you committed the crime or tort in question. That's a good requirement, and English defamation law is a glaring exception.
So you believe it's possible that at the time they had evidence to prove the allegations, and thus acted in good faith, and now suddenly they don't have any memory of said evidence? That's an interesting case that I expect we'll be seeing medical papers written about soon!
Good faith (that is, having evidence from which one would reasonably believe the truth of the statement at the time it was made) is not a defense to libel in British law.
Libel in the UK is a strict liability tort, the statement can be 100% justified based on the information in hand when it is made, and even if the court would agree with that were it permitted to consider it, if the court finds it is false based on information that the defendant did not have (or even could not possibly have had, no matter how hard they sought it) at the time of the statement, the defendant will still be liable.
EDIT: while the NY Times v. Sullivan rules for public officials (extended by other cases to public figures) get more attention, the Gertz v. Welch rule that, as a matter of Constitutional law, requires fault for defamation liability for private figures is arguably more fundamental difference between the US and UK on defamation law.
The claims in https://scala-open-letter.github.io/ are that the signers "have become aware" "based on multiple, independent, well-substantiated reports showing a systematic pattern of behavior over an extended period" of harrassment, and links those very multiple, independent reports (of which the second is indeed a substantiation of the first).
> everyone involved in the dissemination of the defamation is liable as having published it
(That wouldn't fly here; retweeting a false claim, barring unusual circumstances, tends not to be actionable.)
The actual allegations weren't litigated in this case, it's a settlement, and I don't doubt it made more sense to say "sorry" and pay £5k/person than to spend years in court litigating a crime that is typically done in a way that leaves little physical evidence that someone else asserted happened.
> It's hard to see how any of this is false under the US standards.
You are taking their claims at face value. It doesn't matter what standards you apply other than truthfulness, and these claims could still be false. There's no substantiation provided, merely the claim that such exists. A court case in the US would still require them to provide that substantiation, otherwise their claims could be considered libel. While the libel laws in the US and UK differ, it is not legal either in the US to defame someone either knowingly or negligently.
They are entitled to that presumption until evidence emerges otherwise. (This is not the case in the UK!)
> A court case in the US would still require them to provide that substantiation, otherwise their claims could be considered libel.
No. A court case in the US would require Pretty to show evidence they had reason to believe the information was false for them to be liable for defamation.
> They are entitled to that presumption until evidence emerges otherwise.
Why is only one side “entitled to that presumption”? In most common law countries, including both the US and UK, there is a presumption of innocence when someone faces an accusation, their guilt must be proven with evidence.
You are providing heavier weight and benefit to one claim over the other, and that weight is going towards an accusation that presents no substantive evidence. That’s your prerogative, but it is philosophically misaligned with a fact-based approach to the law.
You are mistaken that this was not libel in the US. Even in the US, the law and precedent is clear, you cannot go around claiming someone is guilty of a crime they’re not convicted of, actively seek to prevent them from being employed, and explicitly cause their dismissal from their means of livelihood. That establishes clear damages, and if you have no evidence to support your claim, not even the lower burden of proof that would prevail in a civil matter, you would lose if sued for libel and defamation. Once damages and either willful disregard, negligence, or malice are established, all elements are present.
> Why is only one side “entitled to that presumption”? In most common law countries, including both the US and UK, there is a presumption of innocence when someone faces an accusation, their guilt must be proven with evidence.
In the legal system, yes.
Outside it, no. I don’t have to hold a court proceeding to ground my kid or tell people my neighbor is a dick. There isn’t any right to due process in the court of public opinion; there never has been.
In the UK, defamation law DOES NOT PROVIDE A PRESUMPTION OF INNOCENCE. That is the precise problem. It is highly unusual in that regard. The burden of proof is on the DEFENDANT.
> Even in the US, the law and precedent is clear, you cannot go around claiming someone is guilty of a crime they’re not convicted of, actively seek to prevent them from being employed, and explicitly cause their dismissal from their means of livelihood.
You absolutely can. People can call OJ a murderer. Claiming he was convicted of it might rise to libel.
Nothing in the open letter asserts he was convicted of a crime. If it were libel to assert someone committed a crime before their conviction for it, prosecutors would… be in trouble.
Because sometimes people do bad things in ways that are hard to prove, but they still happen.
The Catholic priest makes sure he and the altar boy are the only ones in the church. The coworker who makes unwelcome advances is careful to do it verbally when there aren’t witnesses. The abusive spouse leverages psychological traumas to make their partner feel crazy.
And how do you pick whose lives to ruin without evidence? What do you do about the ones who are wrongly accused? How many innocent lives are you willing to destroy?
That question cuts both ways. How many lives did Weinstein and Cosby and Savile destroy? (And look how tough it was to nail them, and keep it that way.) What about the victims whose attackers are good at avoiding hard evidence?
The basic legal standard is crimes/torts in court have to be proven. English law violates it in defamation cases.
It's possible that we no longer remember ALL of the evidence we had when we drafted this letter, but the letter links to two first hand accounts of wrongdoing. I also have also talked to multiple other women in the community that say that Jon was someone that women generally knew to warn each other about since there were enough believable accounts of his wrongdoing.
> The Defendants accept that they have never had any evidence to support the allegations apart from the two unverified claims published in coordination with the Open Letter. They were never in a position to make any informed judgement on the truth of the allegations, and did not seek clarification on any of the allegations from the Claimant.
How does this vindicate him?