Taiwan National University (NTU) Department of Agricultural Economics professor Wu Pei-ing, aged 53, was handed a final sentence of 10 days in prison or a fine by the High Court on Thursday for calling a fellow professor “worthless.”
At 8am on March 3 last year, when Wu was speaking with department head Hsu Shih-hsun, fellow professor Jerome Geaun approached her and said he felt compelled to “severely protest” that she was speaking too loudly. He asked Wu to lower her voice.
Wu at first said “Keep out of matters that don’t concern you,” but Geaun insisted that she keep her voice down, prompting Wu to say: “Go report it to the police, to the Environmental Protection Administration (EPA) for noise pollution, OK?”
While Hsu attempted to mediate the dispute, Wu said to Geaun: “Who do you think you are? You’re a worthless nobody,” despite a previous warning from Geaun’s that her comments came very close to a personal insult.
The right to privacy has become increasingly important and contested. Here are just a few examples of areas in which violations of privacy have become more common over the last decades:
- Public safety: many governments claim that the war on terror requires the following limitations of the right to privacy (just as it requires limitations of other rights):
- Transportation and road safety:
- Criminal justice:
- Commerce: sales tracking using fidelity cards or credit cards
Since it’s always good to cite the Universal Declaration when talking about human rights, here’s the article about privacy (#12):
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Types of privacy
Privacy is what is called a cluster concept: it covers many different things, things which may seem unrelated at first sight. So, before I go on, here’s a short and tentative typology of different kinds of “privacies” (I’ll mention later what they have in common):
- Domestic privacy. People have a right to remain secluded and alone in their homes, to keep what happens in their homes and houses to themselves, and to repel intrusion. That’s mostly what is protected by the Fourth Amendment in the US. Issues related to obscenity or pornography laws for example also fall under this type of privacy.
- Personal privacy. People have a right to keep their thoughts, opinions, or feelings to themselves. The secrecy of postal communication for example falls under this type, as does the secret ballot.
- Physical (or intimate) privacy. People have a right not to expose their bodies, as well as a right to repel physical intrusion into their bodies. Abortion and some security checks belong here.
- Informational privacy. People have a right to control what happens to information about themselves (or their families), and to limit involuntary distribution or disclosure of such information. Information here means facts, whether embarrassing or not, rather than opinions. The latter are part of libel law. Information about sexual orientation or salaries is an example of informational privacy.
- Relational privacy. People have a right to keep some of the details about their relationships to themselves. This includes whom they have what type of sexual intercourse with. Sodomy laws violate this kind of privacy, as do laws regulating the use of contraceptives. People also have a right to decide without interference on the type of relationship that suites them best. This covers laws regulating interracial marriages, same-sex marriages etc.
(There’s also the concept of private property, but I think this can be separated from privacy issues, although private property of a home is obviously a necessary condition for domestic privacy, for example).
All these types of privacy have something in common: they are all about independence. Privacy protects an individual’s interest in making independent decisions about her life, family, home, lifestyle, relationships, behavior and communication. All these types of privacy are also about the restriction of access or intrusion. Privacy gives an individual the right to deny access or intrusion by others, more specifically access to or intrusion in her body, her home, her relationships, her mind and certain facts about her life. It’s a right to be let alone.
Justification of privacy
Privacy is justified because it restricts access. Some restrictions of access are necessary for personal identity. There is no “I”, no person, no individual without a border between me and the rest of the world. Such a border is an absolute requirement for the basic human need of personhood and individuality. If people have unlimited access to each other, then there simply won’t be any separate people left. People understood as separate entities require some level of privacy protection. The exact level of privacy and the justified intrusions into people’s private lives are not yet determined by this argument, but the need for some level of privacy and some limitations of intrusions is clear. Other justifications of privacy could be based on the interest people have in intimacy, close personal relationships etc. It’s clear that a world without privacy or even without strong privacy rights would be a horrible world indeed.
Objections to privacy
Some argue that there’s nothing special about privacy and that the concept doesn’t merit an independent existence, let alone legal protection. The many different interests protected by privacy can indeed be protected by other means, such as a right to private property, liberty, bodily security and integrity, or independence.
However, I’m not sure that this is true for all the interests protected by a right to privacy. And an independent notion of privacy gives at least an added protection, partly because of the strong roots of the notion in common language and belief.
Some go even a step further and consider privacy to be detrimental rather than merely superfluous. Marx, for example, viewed privacy as a symptom of an atomized and selfish society, intent on protecting the material self-interest of the haves faced with a possible revolt of the have-nots.
Some feminists as well have forcefully argued that privacy is detrimental to women because of its use as a shield to protect male domination, superiority and abuse. However, it’s not because a right can be abused that it loses all meaning. There wouldn’t be any rights left if that were the case. The challenge is to avoid intrusion in people’s private lives that go too far, while at the same time allowing intrusion that counters abusive private actions. The right to privacy is therefore not an absolute right. But it is a right, and feminists should remember that intrusions into the private sphere can also be detrimental to women (e.g. abortion legislation, forced sterilization etc.).
- The Fourth Amendment: It Has Got to be About More than Privacy (reason.com)
- Q&A: How Do You Define ‘Privacy Harm’? (blogs.wsj.com)
Joseph Weiler, an NYU law professor who is editor of the European Journal of International Law, has been charged with criminal libel in France by Karin Calvo-Goller, who was displeased with a critical review of her book published in Professor Weiler’s journal. (source)
She deemed the review “libelous,” saying it could “cause harm to my professional reputation and academic promotion,” and provided an example of a positive review the book had received from another German professor. Mr. Weiler refused to remove the review but offered to publish a response from Ms. Calvo-Goller, “so that anyone reading the review would immediately be able to read her reply,” an approach that “would have amply and generously vindicated all possible interests of the author of the book … I continue to believe that in all the circumstances of the case … removing the review by Professor Weigend would have dealt a very serious blow to notions of freedom of speech, free academic exchange, and the very important institution of book reviewing.”
Faced with what he notes is “the heavy financial burden of defending such a case — expenses which are in large part not recoverable even if acquitted,” Mr. Weiler has appealed for “moral and material assistance” from the academic community and writes that he is optimistic that he will be acquitted at trial. “Any other result will deal a heavy blow to academic freedom and change the landscape of book reviewing in scholarly journals, especially when reviews have a cyber presence as is so common today.” (source)
A libelous statement (or a defamatory or slanderous statement, which are more or less synonymous) is a lie, a statement that can be disproven by facts (and therefore not merely an opinion), which has a direct impact on someone’s reputation and image. This impact results from the public nature of the lie and the likelihood that some people believe the lie is in fact not a lie.
Most systems of law provide legal measures to deter libel and provide compensation (financial or otherwise) for libel once it has been committed.
A related but slightly different problem is the public revelation of private information which is not of public concern. This information is not necessarily false, but may be embarrassing and hence may have the same effect on someone’s reputation as libel has.
A lie as such should of course not be prohibited, and is not a sufficient reason to limit freedom of speech. Neither should the revelation of private information. Sometimes, privacy is less important than other values. Regular readers of this blog will remember the rules for limiting free speech set forth in the introductory post of this series. Some rights can harm other rights – in this case freedom of speech and privacy – in which case one of the rights has to be limited for the sake of the other right.
This choice between rights is never easy, but one rule could be the relative harm done by limiting one right or another. If the harm caused by free speech is simply embarrassment, a slightly deflated reputation, or a feeling of dishonor, then the case for limiting free speech isn’t very strong. However, many so-called libelous statements do not only cause embarrassment. People whose reputation is destroyed, either by lies or by the disclosure of irrelevant private information that is of no public concern, may lose their livelihood. So the right that is affected by libel is not only the right to privacy, but also the right to a certain minimum living standard, the right to work etc.
In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.
What is Holocaust denial?
Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:
- The Nazi government of Germany had a policy of deliberately exterminating the Jews
- Over five million Jews were systematically killed by the Nazis
- The extermination was carried out with tools such as gas chambers.
Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.
Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.
Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.
How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?
Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.
There are a few possible kinds of justification:
There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.
However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.
The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.
One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.
In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.
2. Offensive speech
Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.
A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.
4. Democratic self-defense
Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.
Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.
To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:
One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls
You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws. More on tolerance of intolerance here.
5. The defense of Israel
Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.
However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.
6. The special case of Germany
In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.
7. The interest of historical truth
Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.
There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.
Countries with laws against Holocaust denial
Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).
Genuine tragedies in the world are not conflicts between right and wrong. They are conflicts between two rights. Georg Wilhelm Friedrich Hegel
Some rights can cause violations of other rights or of the rights of others, which is why rights have to be balanced against each other.
In specific instances of rights that come into conflict — for example the right to free speech and the right to privacy — a judgment has to be made about the priority of one right or the other. The decision can be made by a judge, but also by the legislator. There can be laws that limit one right for the sake of another. The phrasing of human rights articles in constitutions and treaties often provides the possibility of such legal limits.
These limits are an almost daily occurrence, even in a perfect system. The system of human rights is not a coherent and harmonious whole.
Libel or expressions of racial hatred, for instance, are often illegal, and with good reason. Expressions of hatred are not only insulting (people should be able to live with insults); they can also lead to discrimination or even physical harm. It is a thin line between aggressive words and aggressive actions.
The problem of course is how to decide between rights. On what grounds do we give priority to one right or the other? Only if we have a rule for this can we distinguish between legitimate and illegitimate limits on rights, or better between limits and violations. Part of the rule could be that some rights are clearly absolute. It seems unacceptable to kill someone, even if doing so would allow us to protect some other right of some other person. Limits on the right to life will then never be legitimate and this right should always have priority and can in turn limit other rights.
However, this rule leaves most problems of conflicts between rights unsolved because most rights are not absolute. One cannot always avoid moral, philosophical and hence contestable reasoning when taking a decision between rights. Some subjective judgment on the harm we would inflict when limiting one right or the other might help. In the case of a journalist who divulges intimate details about the private life of an actor, what would be the harm inflicted on the journalist when we limit his or her right to free speech? Probably less then the harm he or she inflicts when limiting the right to privacy of the actor.
Again, a judgment may not always be as easy as in this example. Deciding between rights remains a difficult matter and one that is better left to professional judges.