Libel: Its Purpose and Reform

Discussion of libel often fails to define defamation law's purpose and thus properly to assess its value. This article argues that defamation's purpose relates to fundamental human interests in sociality, directly linked to important aspects of human health and well‐being. Protecting such interests is arguably required by the right to private life under ECHR article 8 and should not count as a violation of the right to freedom of speech. Some current reform proposals are criticised as failing to appreciate the importance of protecting sociality. ‘Business’ libel, however, often protects not sociality but purely economic interests. The article therefore argues that the protection of libel law, as opposed to that offered by malicious falsehood and the economic torts, should be withdrawn from purely economic reputation, starting with removing the rights of corporations to sue in defamation, a position compatible with the ECtHR's decision in Karako v Hungary.     

A Key Influence on the Doctrine of Actual Malice: Justice William Brennan's Judicial Philosophy at Work in Changing the Law of Seditious Libel

Much of the scholarship on Justice William Brennan's landmark opinion in New York Times Co. v. Sullivan has focused on the actual malice doctrine and its implications. In light of the historic change in the law of seditious libel in the United States as a result of the case and the need for further exploration of the human factors behind the case, this article explains how Justice Brennan's instrumentalist judicial philosophy had an important influence on changing the course of legal protection for speech critical of the government. The article concludes that the outcome of the case probably would have differed notably if a justice with a formalist, Holmesian or natural law philosophy had authored the opinion for the Court.     

Liberalizing British Defamation Law: A Case of Importing the First Amendment?

Regardless of whether American law tends to be too outlying to be relevant to the rest of the world, the U.S. free speech jurisprudence is more impactful than ever. Indeed, the United States remains a real-life laboratory for other countries in resolving clashes between press freedom and reputation. Jameel v. Wall Street Journal Europe and other recent English media libel cases are a good illustration. This article examines the liberalization of U.K. defamation law in connection with the U.S. actual malice rule while noting English courts' significant adoption of neutral reportage, which American courts consider to be less viable as a libel defense. The principle of functionality informs the article's analytical framework.     

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of integration unless the parent or guardian wishes otherwise is, it is argued, a constitutional imperative based on Charter equality rights rather than a preference for one pedagogical theory (integration) over another (segregated special education placement).     

The Process is the Punishment: Criminal Libel and Political Speech in Canada

The number of U.S. states with criminal libel laws has been steadily declining since the 1960s, and the offense has been struck down in the United Kingdom and several former British colonies. In Canada, however, criminal libel not only continues to exist, but appears to be enjoying a resurgence, albeit one that has flown beneath the radar of Canadian lawyers, judges, and journalists, who frequently assert that criminal libel prosecutions are rare. The research reported in this article found more than 400 prosecutions since the beginning of the twenty-first century. While many of these cases were brought against people who disseminated sexual slurs against former romantic partners, in a substantial number of cases criminal libel law was used to punish citizens’ political speech, particularly speech critical of police or other justice system officials, a use wholly inconsistent with the Canadian Charter of Rights and Freedoms.     

Durie v Gardiner: Public Libel Law and Stare Non Decisis

This note examines the controversial case of Durie v Gardiner, a recent decision of the Court of Appeal of New Zealand, which radically altered the nation's public libel jurisprudence. It argues that Durie is incorrect as a matter of public libel law for three reasons. First, both Durie judgments failed to engage in freedom of expression theorising. Second, this undertheorising has caused significant confusion in Durie, including misinterpretation of material facts, breakdown of the ‘theory-doctrine’ interface, and a precipitous and unwarranted dismissal of the Court of Appeal's settled public libel principles. Third, owing to these difficulties, the Durie courts were in no position to import a new ‘public interest’ defence from foreign jurisdictions. Above all, by hastening towards wholesale law reform and ignoring its earlier comparative law deliberations, Durie arguably scuppers public libel law's best hope for advancement.     

Justice Brennan,Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Court's first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.     

Media libel litigation

The libel litigation system does not efficiently or effectively resolve media libel disputes. Protracted and expensive litigation neither restores plaintiffs' reputations nor protects media defendants from intrusive discovery and potentially large damage awards. This article demonstrates how research on the characteristics of the libel litigation process and the interests and concerns of the disputants was synthesized with research on dispute resolution processes to develop an alternative process for resolving libel disputes outside the courts. The article discusses the potential feasibility of the voluntary, nonlitigation alternative program, informed by research on dispute processing and libel litigation. An evaluation of the program is being conducted to examine attorneys' and parties' reactions to the program and to assess the extent to which the program provides effective solutions to the problems of the libel litigation system.     

Organized Crime in Africa

This paper examines the extent to which the crime problem—adult crime and juvenile delinquency—in general and elements of organized crime in particular have surfaced in the 1960's and 1970's in the new states of Africa. That is, it touches on what observers of the African scene used to say about it as a point of departure. The emergence of the crime problem in the 1960's and 1970's is mentioned in order to provide the logical linkage between the existence of the crime problem in general and the emergence of organized crime in particular in some of these states.

The extent to which organized crime in the new states of Africa resembles in other parts of the world, particularly in the United States and in Western European countries, is examined in terms of definition and organizational structure. In the latter case, the examination is done in order to briefly shed some light on such aspects as the scope of legitimate and illegitimate activities and the impact of organized crime on the new states of Africa.

By way of summary, implications of the study of organized crime in the new states of Africa are examined in so far as they have a bearing on the development of African criminology, and the latter, in turn, in its contribution to nation-building.     

First amendment values and government participation in the marketplace,fifty years after the Hutchins report

The Hutchins Commission took a favorable view of government speech; Its report recommended that government act as a supplementary news source for the public. This article asserts that the commission was “fighting the last war” by focusing on government restraints on the press, while failing to propose limitations on the government's ability to circumvent the press. With the advent of new forms of telecommunications technology, the government might one day replace the private sector press as the public's primary source for news. This article asserts that the Supreme Court should recognize that the Press Clause of the First Amendment guarantees the existence of the private sector press as an independent, nongovernmental branch of our governance system. Based on a “separation of powers” view of Press Clause values, the article argues that the Court should create a First Amendment “right of reply” to any government dissemination of information to the American public in a manner that circumvents the traditional role of the private sector press.     

罪刑法定原则中空白罪状的追问

空白罪状作为基本罪状的下属概念,在1997年刑法中被大量加以采用。空白罪状在刑法分则中的存在,应从民主法治原则、法律专属性原则、法律明确性原则等角度加以追问。空白罪状的存在一定程度上都有违上述三原则之嫌疑,因此,立法者应当采取相应的措施来提高空白罪状的“合法性”。     

Bullying in schools: It's not a crime - is it?

The nature and prevalence of school bullying, and the detrimental and serious impact that it has upon its victims, has been the focus of research and debate since the early 1980s. Where a response is made to incidents of bullying, this is typically seen as the domain of the school, which has a powerful role to play in terms of socialising and disciplining its pupils. From the perspective of the victims of bullying, I argue that despite the existence of school disciplinary mechanisms, intervention by those working within the criminal justice arena is appropriate in two situations. First are situations where school measures are ineffective and the school is unable or unwilling to tackle the bullying. Second are situations that are too serious to be dealt with by the school alone. This issue is rarely discussed in literature on bullying. Using Lacey's metaphor of a set of lenses, I examine the 'criminalisation' of bullying, both at a formal level and at a practical level. I draw upon research that has studied the attitudes of adults and children to crime generally, as well as a qualitative survey of teachers, in order to explore the social construction of bullying as a crime and barriers to this.     

聚众哄抢财物与聚众“打砸抢”的刑法教义学

聚众哄抢财物行为通常成立聚众哄抢罪;哄抢使用中厂房的物资设备的,是聚众哄抢罪与破坏生产经营罪的想象竞合犯,以聚众哄抢罪定罪处罚;聚众是与哄抢并列的行为或者是哄抢行为的方式或状态,说明了聚众哄抢罪的必要共同犯罪特征;成立聚众哄抢罪未必要有首要分子组织、策划或纠集;聚众哄抢罪的对象是他人占有的动产或者不动产中可以分离的部分;哄抢的本质是公然抢夺或盗窃;不符合聚众哄抢罪的哄抢财物行为可认定为抢夺罪或盗窃罪;聚众哄抢罪与抢夺罪、盗窃罪的共犯有差异;哄抢人采取对人暴力或胁迫等方式,压制被害人反抗而哄抢财物的成立抢劫罪,聚众哄抢罪可以成立事后抢劫;聚众"打砸抢"是聚众实施某些寻衅滋事行为的特别规定;"致人伤残、死亡"应限制解释为聚众"打砸"人所致;"毁坏或者抢走公私财物"是抢劫罪的法律拟制,首要分子以外的人成立寻衅滋事罪(或与敲诈勒索罪、聚众哄抢罪、故意毁坏财物罪等的想象竞合犯)。     

Measuring the crime displacement and diffusion of benefit effects of open-street CCTV in South Korea

Crime prevention strategies are implemented to reduce the damage caused by crimes with CCTV (Closed-Circuit Television) being broadly accepted as one of the main strategies. However, along with CCTV's perceived high expectations as crime deterrent, there is also a growing controversy over CCTV's potentially unexpected limitations. For example, the crime displacement (the presence of CCTV will change the locations of crime and its total number will not change) and the diffusion effects of crime control benefits (the crime prevention effect of CCTV may filter through to neighboring areas) are the representative controversial issues. In this study, we aimed to verify the crime displacement and the diffusion of benefit of open-street CCTV by analyzing the crime tendencies empirically.Gwang Myeong City in Gyeonggi Province, South Korea was chosen to analyze the crime displacement using the WDQ (Weighted Displacement Quotient) which compares the crime tendency of a location with that of its neighboring areas. The results showed that the crime prevention effect of the CCTV was significant. The number of robberies and thefts in the areas with CCTV installed reduced by 47.4%, while the areas without CCTV showed practically no change in the number of crimes. The crime displacement caused by the CCTV was not either found or inconsequential, and the crime rates in the neighboring areas also decreased slightly. Of major cause for concern was the fact that CCTV was marginally effective in deterring violence and as such, there should be a more detailed scientific analysis of the pattern and type of crimes committed in an area where CCTV's are being installed.     

The Ad That Changed Libel Law: Judicial Realism and Social Activism in New York Times Co. v. Sullivan

The 1964 decision by the Supreme Court of the United States in New York Times Co. v. Sullivan transformed libel law by extending constitutional protection to the publication of false and defamatory statements about public officials made without actual malice, that is, without knowledge of falsity or reckless disregard for the truth. Less well recognized is the decision's advancement of advocacy advertising and unhindered news coverage as a means to counter racism in the United States. Civil rights history, increasing visibility of advocacy advertisements and the Court's reliance on thin legal precedent suggest the decision embodies judicial realism and social activism.     

Reflections on Henry Ford's War on Jews

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. This essay provides an introduction to and overview of four essays that emerged from an “Author Meets Readers” session at the 2013 Annual Meeting of the Law and Society Association, considering Victoria Saker Woeste's book, Henry Ford's War on Jews and the Legal Battle Against Hate Speech. Three essays are authored by panelists (Aviam Soifer, Carroll Seron, and Clyde Spillenger) and a final essay is provided by Woeste. The essays explore larger themes suggested by the book, including what the involvement of Louis Marshall reveals about the rise and role of spokespeople purporting to represent Jewish interests; whether the arc of Aaron Sapiro's education and career challenges our understandings of the development of the legal profession in the late nineteenth and early twentieth centuries; and how the law of group libel intersected with government attempts to regulate hate speech during the twentieth century. Woeste ends the symposium with a reconsideration of Henry Ford's War and how it fits into the new civil rights history.     

The Status of Criminal Libel in Grenada After Worme v. Commissioner of Police

In January 2004, the Privy Council, the final court of appeal for all British Caribbean states, held that a criminal libel statute providing for the two-year imprisonment of publishers libeling government officials was constitutional and consistent with a democratic society. Over the years, the constitutionality of criminal libel laws in the United States has been attacked with only marginally greater success than the Grenadian law. This article provides a background to the development of criminal libel laws in the two regions; traces the 2004 decision, the threats and actions brought against the media by the Grenadian government in its aftermath; and discusses the likely effect that it could have on the law of libel in the British Caribbean.     

Libel Cases and Public Debate – Some Reflections on whether Europe Should be Concerned about SLAPPs

In recent years, Strategic Lawsuits Against Public Participation (SLAPPs) have become well-recognized as challenging free speech and public participation in the USA, Canada and Australia. However, in Europe SLAPPs remain largely unrecognized with little consideration of their use and impact. This paper argues that SLAPPs are used in Europe and have been neglected for a number of reasons. In order to examine the European SLAPP situation, this paper focuses on libel law in England and Wales. It considers the debate on free speech that has flowed out of libel cases and concludes by reflecting on what advantages might flow from a refocusing of that debate that includes a recognition of SLAPPs.     

Libel Lawyers as Risk Counselors: Pre-publication and Pre-broadcast Review and the Social Construction of News1

American libel law presents profound dilemmas about how to provide compensation to individuals for injury to their reputation without destroying First Amendment values of free expression and unfettered public debate. This paper looks at the substantial legal costs incurred by publishers and broadcasters in defending themselves against charges of libel, the response of the courts to limit press self-censorship occasioned by the risks of libel litigation, and the perverse effect they both have on the social construction of the news. These tensions are captured in the role of the media lawyer who reviews news stories prior to publication or broadcast and advises editors about libel risks. Data are presented from interviews of 53 in-house and outside counsel who regularly review stories for newspapers, television stations and networks, magazines, and other news organizations. A paradox emerges: media lawyers, in pursuit of constitutional protections of free speech, have come to enforce responsible journalism, while subtly chilling and shaping the ways the news is told.     

侵占罪疑难问题研究

侵占罪是易占有为不法所有的行为。对于侵占罪的成立 ,确认占有事实是否存在比判断占有性质是否合法更为重要。侵占罪的犯罪对象包括代为保管的他人财物、遗忘物、埋藏物 ;侵占包装物、不法委托物应当以侵占罪论 ;委托关系并不存在 ,但误认为存在并占有他人财物的 ,构成侵占遗忘物的犯罪 ;对遗忘物应当作扩大解释 ,它和遗失物之间不可能也无必要加以区分。非法占为己有和拒不退还、拒不交出之间具有包容和相互证明的关系 ,为正确认定侵占罪 ,应当合理确定拒不退还、拒不交出的最后时限