The most important factor that defines the severity of defamation laws is who bears the burden of proof - the defendant or the plaintiff. The British and the American libel laws mark two extremes in this respect. British common law presumes that the media allegations are false, unless the defendant proves the opposite. American libel law, grounded on the First Amendment, assumes that the media allegations are true unless the plaintiff proves the opposite. Placing the burden of proof on the defendant, i.e. the accuser, makes it much costlier for him or her to make scandalous allegations. Conversely, if the plaintiff has to prove that the statement is false, the cost of making defamatory statements is smaller for the accuser, and we will expect more scandals.
A case in point is the lawsuit that Boris Berezovsky filed against Forbes
magazine in 1996. Forbes
portrayed Berezovsky as a criminal “on an outrageous scale” who had left behind him “a trail of corpses, uncollectible debts, and competitors terrified for their lives”. The case was heard in Britain, which places the burden of proof on the defendant. Needless to say, it was impossible for the magazine to provide evidence that Berezovsky had left a trail of corpses. It settled the suit and victorious Berezovsky ran a full page ad in The Financial Times
trumpeting the settlement (Actualmalice.com, 2003).
Had the case been heard in the USA, Berezovsky would have had to prove that he had not left a trail of corpses, and that he is not a criminal. In this case, he would have, most likely, lost. Similarly, a Russian newspaper statement: “he [the plaintiff] evidently left all conscience and basic sense of shame in the cloakroom, together with his Soviet Army officer uniform, a long time ago”, was found by a Russian court to be defamatory on the grounds that ‘the defendant’s representative
failed to produce evidence in court supporting that allegation” (Article 19, 2003). Needless to say, it is very hard to prove that somebody has left one’s sense of shame in the cloakroom, hence the greater costs of making similar incriminations.
Defamation laws also differ as to whether they consider the intention of the accuser. The New York Times v. Sullivan
introduced the ‘malice standard’ in 1964 in the USA. The malice standard condones false statements if journalists can prove that they honestly believed at the time of the publication that the statement was true. In England, by contrast, the publisher is liable for any false statement of fact, regardless of his or her intent. If defamation laws make a provision for the intention of the journalists, the costs for making scandalous allegations decrease, and vice versa.
Another feature of the defamation laws is the treatment of the difference between opinion and fact. It is less costly to make media allegations if the defamation law does not prosecute statements of opinion. American law assumes that opinion cannot by nature be true or false, and therefore it is not properly defensible and cannot be prosecuted. The British system makes a similar provision of “fair comment”. The “fair comment” clause requires the defendant to show that the statement expresses a view that a reasonable person can hold, even if he or she were motivated by dislike or hatred of the plaintiff.
Finally, it is less costly to criticize the government publicly, if defamation laws have a provision for “public interest”. The otherwise strict British libel laws slightly decreased the costs of accusation by introducing the “Reynolds privilege” in 2001. The clause allows journalists to publish material if they act in the public interest, even if relevant allegations later prove to be untrue.Scandal Costs: Laws for Classified Information
The laws for access to classified information also affect the probability of the emergence of scandals. Such laws enable the government to refuse to explain its actions under the pretext that the information constitutes a state secret or an issue of national security. The “strictness” of the laws is measured by the areas that count as “classified information”. Stricter laws for classified information increase the costs of making a scandalous allegation because they make it harder for journalists and other accusers to allocate information and to prove the facts of their publications, when they are challenged in court.
Here is one example. In the February 2003, Chechen terrorists took 850 people hostage in a Moscow theater. The Russian Special Forces raided the theater building using an unidentified gas. The Russian media and public suspected that 129 of the hostages died from the gas that the government used, not from the terrorist siege. Yuri Schekochikhin, a member of the Duma Committee on Public Safety and a journalist from Novaya Gazeta
, put in a formal inquiry whether the gas used by the government was poisonous.
To avoid public shaming, the government hid behind the national security clause. It responded: “The Federal Security Bureau looked into your request about the lawfulness of making it a state secret to report on the contents of the gas... According to Article 80 of the Presidential Decree from November 30 1995 any evidence, revealing the methods and means of operative work, constitutes a state secret” (Schekochikhin, 2001).
Quoting “national security” as a way to avoid a scandal is not a unique Russian phenomenon. Noble (Noble, 1992) points out that the Reagan’s administration used the national security clause as an excuse to stop the trial of Oliver North, who was alleged of selling weapons to Iran illegally. Noble even argues that “control of classified information is a tool that can potentially be used to circumvent the entire Independent Counsel process, as it puts the Executive Branch in a position of judging whether or not one of its own is prosecuted”.Scandal Costs: Relationship between the Government and the Intelligence Services
The cost of making accusations is smaller when the accuser has easy access to discrediting information. In each country, the intelligent services preside over a large reservoir of potentially compromising material. If the government has close ties with the Intelligences Services, then it is harder and costlier for non-government accusers to gain access to discrediting information (Goodman, 2009).
The strategic importance of information gathered and collected by the Secret Services is evident in all countries. The Clearstream scandal in France is a case in point. The former French intelligence chief, General Philippe Rondot, was instrumental in instigating a scandal meant to discredit Nicolas Sarkozy during the 2004 presidential elections in France. Rondot confessed to have assisted the former prime-minister Villepin in compiling a list of the names of illegal offshore bank account holders. The list included the name of Nicolas Sarkozy, who was Villepin’s chief rival in the election.
Bulgaria is no exception in this regard either. Some political observers argue that the national secret services in Bulgaria started the scandal which brought down the government of Philip Dimitrov, the spy scandal that occurred at the end of the mandate of Zhan Videnov, and the series of scandals alleging Dimitar Kostov’s government of corruption (Kostov, 2005). They conclude that it is not by chance that every new president and prime minister in Bulgaria fights over appointments to the national intelligence services.Scandal Costs: The Role of Journalistic Associations
In a recent interview, a renowned Bulgarian soccer player stated that he was entertained, rather than appalled, by the crude treatment of journalists. He said: “when they beat them [the journalists] up, I enjoy it. I really enjoy it. They have a journalists’ syndicate to protect them. Protect them from what? From the jackdaws. Only torment for such rubbish. Torment”. This statement is, obviously, politically incorrect. But it makes an important, albeit obvious point: journalists need protection to be able to openly criticize powerful political figures. The weaker the journalistic association, the less capable it is to protect the journalists from reprisals of the alleged government members. Hence, the lack of powerful journalistic associations increases the costs of initiating scandalous allegations.
Reprisals for critical journalistic material vary. They can range from death under mysterious circumstances (Anna Politovskaya and Paul Khlebnikov in Russia), to imprisonment, verbal assault, dismissal of journalists (the Paris Match
editor Alain Genestar in 2006), forcing the journalists to resign voluntarily (Dilyana Grozdanova in 1998 in Bulgaria), or suing the journalists (Anna Zarkova in Bulgaria). One of the most popular and accomplished investigative journalists in Bulgaria, Stanimir Vangelov from the newspaper 24 Chasa
, told me that there were no protections for investigative journalists in Bulgaria and that he would have quitted a long time ago, if it were not for the international journalistic associations.The Rise of Political Scandals: Conclusion
Political scandals are a complex phenomenon. They are a medley of institutional, legal, actor-specific and social prerequisites. They demonstrate how the confluence of factors of totally different nature can form an important occurrence. For example, laws for classified information and defamation are balanced against the public approval ratings of the government, which in turn come into play with the role of organizations, such as journalistic associations and the security services. Because of the element of “randomness” implicit in its formation, it is not surprising then that media scandals unfold in quite different patterns.
1.For example, very strict laws posit that information about the incumbents’ private property constitute a state secret.
2.The interview with the author was conducted on November 10, 2007 in Sofia, Bulgaria.
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