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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Monday, May 07, 2012

Reaching for the defamation button

Credible allegations of pedophilia are exactly the sort of thing that defamation law should protect us from. Those are exactly the kind of lies that can destroy us as social beings. So I feel some sympathy for Cardinal Pell in taking legal action to clear his name when he (apparently) felt defamed by Catherine Deveny in a tweet that he evidently took as imputing pedophilia to him.

That said, I see most of Deveny's Twitter feed, and I doubt that there was any real imputation, let alone a credible one, that Pell is a pedophile.

No one suggests that Pell is a pedophile. What they do suggest is that the reputation of the Catholic Church for harbouring pedophiles is now at a level where a church hierarch needs to choose his words very carefully or they will remind his audience of pedophilia. When Pell appeared on the Australian TV show Q&A and used the expression "preparing boys", it immediately caused nervous-cum-malicious laughter from the audience, irrespective of the fact that he may have been trying to say "preparing boys for communion" - and that he added the extra words after the laughter began.

I watched that episode of Q&A. I have seen a lot of Twitter discussion of it. None of that discussion seemed, to me, to suggest that Pell is himself is a pedophile. I am very sceptical that Deveny's impugned tweet did so (it has now been taken down, so we can't easily check for ourselves). But the extensive Twitter discussion does suggest some public concern over the amount of pedophilia in the church, and over the church's responses to it - responses that have involved blame shifting, atrocious priorities, and much all-round managerial incompetence. If the church and its hierarchs are now associated in the public mind with pedophilia, that is the fault of the church's worldwide hierarchy. Yes, the discomfort and censure is mixed with a certain amount of malicious glee ... but the church, through the cumulative actions and statements of many of its leaders, brought all this on itself.

Since I'm not sure that I've seen the actual tweet that is impugned, I can't be sure that it contained no outright imputation of pedophilia. Therefore, I can't be sure that the defamation action by Pell is unjustified. However, I'm very sceptical. I think it's right to be sceptical when we see this kind of legal action taken by a public figure. To be fair, Deveny is also a public figure, and anything she says in public will be heard or read by many people. There is not a total imbalance of public reach here. Still, I'm sceptical. In fact, I'm always sceptical when I see a powerful person reaching for the defamation button.

I'm also sceptical when I see threats to sue Twitter itself. I can see the point of being able to demand the details from Twitter of who owns an account - subject to judicial oversight - but a social medium like Twitter should not be legally responsible for what is said by the individuals who use it, any more than my phone company should be legally responsible if I defame somebody during a telephone conversation.


Russell Blackford said...

And just to be clear, when I talk about defamation action, etc., I am speaking informally. I don't claim that a formal legal action has been commenced in the civil courts. But action has been taken by Pell's lawyers in sending letters of demand to Twitter and threatening formal legal proceedings.

steve oberski said...

As Father Thomas P. Doyle put it in "Sex, Priests and Secret Codes":

When victims of sexual abuse launch civil suits against priests, they often sue the alleged perpetrator's bishop as well, reasoning that he, as the priest's supervisor, shares responsibility for the harm they have suffered. Such a claim naturally begs the question: How did the bishops know about sexual abuse? The answer is: They knew about abuse from many sources but especially from their membership in the secret society of clerics bent on preserving their public image above everything else. As to the questions: What did they know, and when did they know it? The answer, in a nutshell is: All about it and all along.

Pell may not have physically abused children but there is no way he could not have known and abetted pedophiles under his direct supervision which in the eyes of the law makes him as culpable as any actual child raper.

Doyle's book is an inside look at the history of sexual abuse in the RCC from the start of the organization and completely demolishes the arguments that the RCC has put forward claiming that sexual abuse is a local, recent, American, homosexual etc. phenomenon.

From Doyle's biography:

A Dominican priest with a doctorate in canon law and five separate master's degrees, Rev. Thomas Patrick Doyle, O.P. sacrificed a rising career at the Vatican Embassy to become an outspoken advocate for church abuse victims.

Russell Blackford said...

Steve, I'm just going to say this once for the wise.

I think we should avoid making allegations about specific individuals unless we have hard evidence for those allegations - such as that they have been found personally guilty of some sort of crime or misconduct in a court of law, or in a formal government investigation of some kind. I don't know of any basis to make such allegations against Pell personally, and I think people commenting here should be very careful not to make claims that could expose them or this blog to defamation actions under Australian law (which is a lot less protective of defendants' speech than American law).

(The quote from Doyle is pretty thin evidence of any wrongdoing by Pell or any other individual. We can't go around alleging things that named individuals "must have" done. And bear in mind that the basis for suing a bishop is just as likely to be the legal doctrine of vicarious liability as any personal involvement in wrongdoing.)

What we do know, from reading many of the reports from Ireland and elsewhere (and I've ploughed through a lot this stuff), is that there has been much mismanagement, callousness, etc., within the church hierarchy. We've also seen many efforts at shifting the blame by church officials and apologists.

I think that is the point that needs to be made about the church as a whole. But I'm not going to draw any inferences of personal misconduct or criminal behaviour by individuals who have not been directly found guilty of it. There is no basis that I am aware of to impute any personal misconduct or criminal behaviour to Pell, including acts of complity, abetting, and so on, and making allegations along those lines was not the purpose of the original blog post.

Russell Blackford said...

That should, of course, say "complicity" near the end there.

steve oberski said...

In "The Case of the Pope" by Geoffrey Robertson, the author makes the case that the pope bears command responsibility for the actions of child abusing catholic priests and as such should be tried in the International Criminal Court for crimes against humanity.

While I make no specific claim of paedophila against Pell, there is incontrovertible evidence that Australian catholic priests abused children under his watch as the Archbishop of Sydney and previously as the archbishop of the Archdiocese of Melbourne and as such the same principle of command responsibility applies.

It is interesting that in the case of a direct accusation of child abuse against Pell, the fact that the complainant was a "career criminal" was used to cast doubts on the validity of the accusation when of course it has been well documented that victims of sexual abuse go on to lead lives that include a whole gamut of anti-social behaviours.

Steve Zara said...

I have no reason to believe in any way that Pell has physically abused children. But it does seem to me that going for a legal response to what he thought was such an accusation is extremely politically unwise. Rather than try and shut someone up, he should have taken on the burden of demonstrating his innocence (even though that is what is assumed). He should have said that as far as he is concerned all documentation about him and anything he has been involved with is open to public scrutiny, and he should have said he would answer any accusations fully. As he has decided to remain in such a tainted organisation, it would be wise for him to put a lot of work into promoting his good name.

Russell Blackford said...

Well, the principle of vicarious liability might apply if Pell is the employer, or something analogous to an employer (which is probably the case, the way the Catholic Church is structured). As far as I know, that is why bishops get sued and why dioceses bear the costs.

But note that all sorts of people are vicariously liable for all sorts of things. It doesn't mean that they are morally tainted in some way. Sometimes they will be; sometimes they won't be - and that was certainly so in the situations in Ireland.

Vicarious liability is a legal principle that gives some protection to plaintiffs when the immediate person being sued (the direct wrongdoer) does not have deep pockets. It's not a principle that necessarily tracks our ordinary notions of wrongdoing, but it may be justified in the public interest on some other basis - e.g. it tends to spread plaintiffs' loss socially, because employers are better able than employees to insure against the cost of legal liability. This is loss-spreading effect is usually considered socially desirable.

That opens up a whole lot of policy issues. For one, it means that legal claims are inevitably taken over by insurance companies. Insurance companies are hard-nosed, ruthlessly practical litigants - they settle almost all claims, even unmeritorious ones, but after hard negotiations.

It also means that some limits are placed on vicarious liability so they are not legally responsible for everything their employees do, which then gets very murky ... and the lines historically drawn by the courts can seem contrived.

All of this opens up a whole other discussion about the vagaries of legal doctrines like vicarious liability, but it could get remote from the OP.