The New York Times reports:
Wolfgang Werlé and Manfred Lauber became infamous for killing a German actor in 1990. Now they are suing to force Wikipedia to forget them.... German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society ....Now [the lawyer for murderers Werlé and Lauber –EV], in suits in German courts, is demanding that the Wikimedia Foundation, the American organization that runs Wikipedia, do the same with the English-language version of the article....
Not so long ago, the law in some American states — including, most prominently, California, where I live — would actually have been on the side of suppressing the criminals’ names, maybe, sometimes, depending on how a judge or jury would apply a mushy “newsworthiness” standard. Fortunately, some Supreme Court decisions from the 1970s and 1980s recognized a nearly unlimited right to report truthful information from public records, and a 2004 California Supreme Court decision definitively held that the old California cases were no longer good law.
To explain why I think protecting such speech is an excellent decision — and why I’m strongly opposed to some “privacy” and “paid his debt to society” rhetoric in such cases — I thought I’d reprint an excerpt of my Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000):
[In Briscoe, Reader’s Digest was held liable for revealing that Briscoe had eleven years earlier been convicted of armed robbery (a robbery that involved his fighting “a gun battle with the local police”). The court acknowledged that the speech, while not related to any particular political controversy, was newsworthy; the public is properly concerned with crime, how it happens, how it’s fought, and how it can be avoided. Moreover, revealing the identity of someone “currently charged with the commission of a crime” is itself newsworthy, because “it may legitimately put others on notice that the named individual is suspected of having committed a crime,” thus presumably warning them that they may want to be cautious in their dealings with him.
But revealing Briscoe’s identity eleven years after his crime, the court said, served no “public purpose” and was not “of legitimate public interest”; there was no “reason whatsoever” for it. The plaintiff was “rehabilitated” and had “paid his debt to society.”) “[W]e, as right-thinking members of society, should permit him to continue in the path of rectitude rather than throw him back into a life of shame or crime” by revealing his past. “Ideally, [Briscoe’s] neighbors should recognize his present worth and forget his past life of shame. But men are not so divine as to forgive the past trespasses of others, and plaintiff therefore endeavored to reveal as little as possible of his past life.” And to assist Briscoe in what the court apparently thought was a worthy effort at concealment, the law may bar people from saying things that would interfere with Briscoe’s plans.
Judges are of course entitled to have their own views about which things “right-thinking members of society” should “recognize” and which they should forget; but it seems to me that under the First Amendment members of society have a constitutional right to think things through in their own ways. And some people do take a view that differs from that of the Briscoe judges: While criminals can change their character, this view asserts, they often don’t. Someone who was willing to fight a gun battle with the police eleven years ago may be more willing than the average person to do something bad today, even if he has led a blameless life since then (something that no court can assure us of, since it may be that he has continued acting violently on occasion, but just hasn’t yet been caught).
Under this ideology, it’s perfectly proper to keep this possibility in mind in one’s dealings with the supposedly “reformed” felon. While the government may want to give him a second chance by releasing him from prison, restoring his right to vote and possess firearms, and even erasing its publicly accessible records related to the conviction, his friends, acquaintances, and business associates are entitled to adopt a different attitude. Most presumably wouldn’t treat him as a total pariah, but they might use extra caution in dealing with him, especially when it comes to trusting their business welfare or even their physical safety (or that of their children) to his care. And, as Richard Epstein has pointed out, they might use extra caution in dealing with him precisely because he has for the last eleven years hidden this history and denied them the chance to judge him for themselves based on the whole truth about his past. Those who think such concealment is wrong will see it as direct evidence of present bad character (since the concealment was continuing) and not just of past bad character. . . .
[W]hich viewpoint about our neighbors’ past crimes is “right-thinking” and which is “wrong-thinking” is the subject of a longstanding moral debate. Surely it is not up to the government to conclude that the latter view is so wrong, that Briscoe’s conviction was so “[il]legitimate” a subject for consideration, that the government can suppress speech that undermines its highly controversial policy of forgive-and-forget. I can certainly see why all of us might want to suppress “information about [our] remote and forgotten past[s]” in order “to change . . . others’ definitions of [ourselves].” But in a free speech regime, others’ definitions of me should primarily be molded by their own judgments, rather than by my using legal coercion to keep them in the dark.
So the California Supreme Court’s 2004 decision (Gates v. Discovery Communications, Inc.), and the Supreme Court decisions on which it’s based, are a victory for free speech. And to the extent that they are a defeat for “privacy” under such circumstances, they are a defeat for a form of privacy that the law ought not recognize — a putative right to stop people from telling the truth about what you’ve done.
dcuser says:
The shocking thing the very idea that society’s ability to write history based on true facts should be subordinated to a particular person’s desire not to have that actual history known.
The criminal’s past is relevant not just to those considering some kind of relationship with that particular criminal. It is also relevant to a host of potential public policy questions — was security adequate at the crime site; was the statutory punishment too harsh or too lenient; etc etc.
Indeed, it is also relevant to questions of social policy on rehabilitation, etc. Shouldn’t advocates of short sentences have access to this criminal’s past history, so that they can use it as evidence that criminals can reform so sentences should be shorter? Conversely, others should have access to the evidence so that if the person is caught misbehaving again, they may use his case as an example asking for harsher punishment.
The arrogance of judges who would deny the public these vital tools for democratic self-rule — all because of some judges’ own view that they already know the right answers — is mindboggling.
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November 17, 2009, 8:08 amMartinned says:
Before the ECtHR there is currently a case brought by (former FIA boss) Max Mosely against the UK. (The case is against the News of the World Newspaper, but in Strasbourg you can only sue a signatory of the Convention.) In that case, he’s trying to get more restraints against the (occasionally somewhat rowdy) British Tabloids. The previous link is to an order by the court, asking the parties to brief the following issues:
Otherwise, I could only find cases on newspaper reporting of investigations, like this year’s A v Norway, and (other) defamation vs. free speech cases. Also relevant here is the infamous Von Hannover v Germany case, where Princess Caroline of Monaco won in a case seeking to restrain the paparazzi.
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November 17, 2009, 8:29 amMartinned says:
To be fair, almost none of the things you list require the names of the criminals to be known. To the extent that they do, this information can be obtained in other ways.
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November 17, 2009, 8:31 amKen Arromdee says:
By that reasoning there should be no such thing as sealed records. Heck, by that reasoning there should be nothing wrong with making someone who urinated behind a bush 20 years ago be registered as a sex offender.
The reason that most of us consider the sex offender example to be a miscarriage of justice is that we know that a lot of people who look at the sex offender registration will take it out of context and not bother to do the research to distinguish “urinated behind a bush” and “molested a child”. The registration becomes damaging because of everyone else’s rational ignorance. While the murder example isn’t an identical case, it has some elements in common; nobody’s going to bother learning the details about the crime, even if some of those details may make the guy not much of a threat to bystanders.
Another comparison may be to the idea that people caught with drugs lose their college scholarships. Most of us consider that a miscarriage of justice too. Some of it is because we don’t like drug laws, but some of it is simply the fact that depriving the criminal of a college education not only punishes him by removing a benefit, it also huts the rest of society because a college education helps people get out of poverty and therefore become less likely to commit more crimes. Punishing the criminal by removing this “benefit” is counterproductive because it pushes him towards crime again. Having it widely known that a criminal is a criminal has a similar effect: if it’s widely known that he’s an ex-con, he may not be able to get a job or credit or find a good place to live, which increases the chance he’ll commit a crime again.
Of course, none of this affects the free speech aspects, but we should recognize that it’s a tradeoff between free speech and other things. It’s not just the government cracking down on free speech for no reason whatsoever. Heck, you could even argue that not allowing the names of criminals to be repeated is a public good; the benefit of repeating the name goes to the newspaper who repeats it, but the harm falls on others.
As for the English Wikipedia, bear in mind that Wikipedia routinely censors names of innocent people to protect their privacy (look up Star Wars Kid), and that “we should only censor names of the innocent, but not of the guilty” is a hard argument to make.
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November 17, 2009, 8:35 amHamlet says:
How times have changed:
http://en.wikipedia.org/wiki/Herostratus
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November 17, 2009, 8:49 amMartha says:
“Stopping people from telling the truth about what you’ve done” is also the justification for sealing the birth certificates of adopted people. In most states, adult adopted people can’t view their own birth certificates because they contain the true facts about their own births. Instead, adopted adults are given “amended” certificates which contain falsified information. Birthparent names are changed to adoptive parent names, time/date/location of birth can be changed, and so on.
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November 17, 2009, 8:55 amKen Arromdee says:
Hamlet: you’re seeing a biased sample. You can only read about the examples where the effort to strike the guy’s name from history failed. If it succeeded, of course, you’d never have heard about it.
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November 17, 2009, 8:56 amMithras says:
EU countries have strong privacy protections for individuals that are alien to the American mindset. It’s an interesting cultural difference that Prof. Volokh doesn’t seem to appreciate. He sets it up as a difference between freedom-loving Americans versus freedom-destroying Europeans which, of course, is highly conclusionary. I suspect that the European view is that freedom is not just about civil liberties, that society can be as oppressive as the state when one’s personal life is legally open to examination by anyone. This simply draws a different line at what kind of information is relevant in “the marketplace of ideas.” By statute, they’ve accorded people the right not to have information about themselves trafficked in. As a result, for example, it’s illegal there for companies to do the kind of data-mining that American firms do regularly. Like other issues of rights, this isn’t just about criminals.
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November 17, 2009, 9:28 amJonny Scrum-half says:
How does the fact that someone fought a gun battle with the police and then was convicted in open court implicate a right of “privacy”? If someone wants to keep information private, he/she shouldn’t act in a manner that makes the information public.
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November 17, 2009, 9:32 amNovember 16 roundup says:
[...] German law firm demands that Wikipedia remove true information about now-paroled murderers [EFF] More: Eugene Volokh. [...]
Yankev says:
As the Sages (of blessed memory) advised, “Respect him but suspect him.” (In the original, it takes only two words to say that, and it still rhymes.)
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November 17, 2009, 9:44 amSoronel Haetir says:
If the servers are in the U.S. (possibly even the German language servers) where does subject matter jurisdiction arise? The German courts couldn’t possibly expect US courts to enforce such an order through comity.
I don’t even see this case like the eBay Nazi memorabilia cases, in that Wikimedia might well be better off pulling out of certain markets rather than kowtow to such pressure.
I should check if this case is why they have been running protect wikipedia banners lately.
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November 17, 2009, 9:47 amMithras says:
I should add to my comment that, on the merits, I think the lawsuit does and should lose under U.S. law, but Volokh’s conclusion that the privacy principle at stake is completely without merit smacks of jingoism.
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November 17, 2009, 9:53 amBrian Garst says:
How dare we hold bad thoughts of which the state does not approve. They should not only stop us from sharing what facts and knowledge we recollect, but they should purge them from our memory as well. What war with Eurasia? We’ve always been at war with Eastasia.
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November 17, 2009, 10:01 amjb says:
The real question is, is Wikipedia more like a blog or more like the newspaper? However absurd it would be to censor newspapers from publishing this information, it would be vastly more absurd to censor private citizens from doing so.
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November 17, 2009, 10:01 amSuperSkeptic says:
Ken, I’m with you and your sense of justice until:
This is classic “create-a-externality” rationalization of restriction, repression, and regulation. I’ll say it until I’m blue in the face: “free speech is free speech is free speech...” We all get the benefits, we all bear the costs.
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November 17, 2009, 10:05 amtamerlane says:
And there should be nothing wrong with that as long as the reason he’s registered can also be freely publicized. The greater the transparency, i.e., freedom to publish and know, the less the problem. In practice, the European system works to protect the government, its bureaucrats, and the culture’s elites with a little collateral and incidental coverage for the masses. I’d rather live in a system where my neighbor and I can both know whether we might pose an existential threat to one another’s families and where the press is free to uncover and broadcast government misdeeds.
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November 17, 2009, 10:06 amSkyler says:
I predicted a decade ago that the internet, combined with global commerce would eventually become a force that would work to limit free speech globally.
If you want to do business in China, and who doesn’t, then you have to follow the diktats of the Chinese government. Or any other country. It can be easy for speech to be suppressed without any official actions or statements. For instance, if IBM wants to sell chips in China, then they will have to be sure that China can control our chips.
It’s certainly possible. I hope it doesn’t happen.
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November 17, 2009, 10:14 amCan't find a good name says:
I have to say that Wolfgang Werlé and Manfred Lauber’s plan to get people to forget about their crime may have backfired, given that the New York Times just circulated a million copies of a newspaper referring to the murder committed by Wolfgang Werlé and Manfred Lauber. Presumably if ex-convicts Wolfgang Werlé and Manfred Lauber are successful in their lawsuit against the Wikimedia Foundation, they will next sue the NYTimes.com to demand that it remove this article from its web site. Of course, that lawsuit might itself garner some attention as well for the former killers, Wolfgang Werlé and Manfred Lauber.
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November 17, 2009, 11:00 amMartinned says:
The Streisand Effect strikes again.
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November 17, 2009, 11:11 amneurodoc says:
Professor Volokh did not argue “there should be no such thing as sealed records,” and it does not follow from the case he did make that courts should never be allowed to seal records.
Again, by your reasoning, not Professor Volokh’s.
Your sex offender example is completely inapt here. So we may agree with you that “urinated behind a bush” isn’t reason to list someone as a sex offender, while believing that the historical record should not be obliterated to shield Werle and Lauber, though they completed their prison sentences for the murder they committed.
And another inapt example/comparison in lieu of any on point argument bearing on the instant case of Werle and Lauber, or ones much like theirs.
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November 17, 2009, 11:22 amMartinned says:
@Neurodoc: Would you maybe like to explain why you don’t approve of Ken Arromdee’s analogies? The comparison with sex offender registration seems particularly apt, especially now that the range of offenses for which you have to register keeps growing, meaning that the fact that someone is a registered sex offender becomes ever less informative.
Is there any evidence that anyone cares about the circumstances of that hypothetical urinated behind a bush guy? I.e. is there any evidence that Tamerlane is right, above, saying that the solution is more transparency of the reason why someone ended up being a registered sex offender in the first place? I haven’t done research on this any more than you have, but my sense is that very few people are inclined to look past the sex offender tag, no matter how easily accessible the facts of the case are. That is why I oppose sex registration schemes except for serious offenders.
Why does this analogy not work? To be sure, it’s not the end of the story, but it gives a frame of reference to think about this issue outside the (problematic) context of regulating newspapers and websites. By moving away from the free speech issues for a moment, you can think about the privacy rights of convicted criminals. That is the purpose of an analogy like this one. Once you’ve formed an opinion about how much the privacy of criminals should be protected, if at all, we can return to the free speech (and jurisdiction) problems.
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November 17, 2009, 11:31 amPintler says:
People may commit a wide variety of offenses against propriety: cheat on their wives, pass out drunk at a kegger, dump a boyfriend via a textmsg, rob a bank, fail to repay that $20 you bummed off a friend, ding a door in a parking lot and leave, or commit murder.
Which of these should be protected from future truthful disclosure by third parties?
It seems odd to only prevent disclosure of the most heinous crimes, and still allow people to mention your minor peccadilloes, yet it seems pretty unworkable to proscribe mentioning any true but unflattering information about one’s past behavior.
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November 17, 2009, 11:45 amyankee says:
Why the scare quotes around “privacy”? How does having shameful information about your past widely disseminated not implicate your privacy?
I agree with your bottom-line conclusion, but I’m very disappointed by your apparent lack of concern about the problem the speech-restrictive rule is designed to deal with. Having one’s crimes widely publicized makes it very difficult to reintegrate into society. People are much more likely to reoffend if they find it very difficult to get and hold a job, and more so if they are ostracized by the law-abiding. Preventing ex-cons from reoffending is at least an important government interest (though probably not a compelling one) and yet you dismiss it entirely.
Ultimately I do agree that dissemination of such information should not be prohibited, but it’s a rule with a serious downside.
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November 17, 2009, 11:46 amKen Arromdee says:
And there should be nothing wrong with that as long as the reason he’s registered can also be freely publicized.
Publicizing it doesn’t mean anyone’s going to read it. They’ll just find that the guy is on a sex offender list and not bother to determine why. Then they’ll treat him like a child molester even though he isn’t.
In other words, it’s pretty much guaranteed that the public will take it out of context.
Having everyone know about a murderer has similar problems. I can think of a lot of situations where someone might murder. Some may indicate that the guy is a danger to his neighbors. Some may not. But it’s guaranteed that almost nobody who learns he’s a murderer is going to research any facts that distinguish between those situations.
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November 17, 2009, 11:50 amKen Arromdee says:
Well, consider the problems that protection from disclosure tries to solve. First, it encourages the public to take the crime out of context–the crime may cover a range of offenses but the public will always assume the most serious. Second, if the ex-con can’t get a job or otherwise have a normal life, he’s more likely to reoffend.
I don’t think dinging a door in a parking lot and leaving causes those problems, so there’s no reason not to let it be disclosed. In general, the more serious the crime, the more those reasons point towards nondisclosure.
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November 17, 2009, 11:57 amtroll_dc2 says:
We do not have an explicit constitutional right to privacy. We have some court decisions piecing out such a right in some circumstances, and we have some legislation addressing specific circumstances. There are good reasons not to have a broad concept. As we saw in the Virginia Tech shooting case, for example, privacy rules make it hard for the authorities to deal with mentally ill persons.
When the Privileges and Immunities Clause is brought to life, partisans of all sorts of concepts will seek to have theirs recognized (since the framers of the Fourteenth Amendment intended the P&I clause to go beyond the Bill of Rights). It is hoped that the supporters of a broader right to privacy do not convince the Court to agree with them.
In any event, I do not see how any constitutionally recognized right of proivacy can limit the First Amendment. As for Wikipedia, given the mindset in Europe, maybe it should put all of its servers in this country.
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November 17, 2009, 12:11 pmBill says:
There’s a significant flaw in the argument from those claiming the murderers have “paid their debt to society”.
The murders in this case were paroled — they did not serve their entire sentence.
They had not, in fact, paid their entire debt to society — they paid 15 years of a life sentence.
if germany defines parole like other nations, they may be required to resume their sentence if a court believes they violated the terms of their parole.
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November 17, 2009, 12:12 pmDavid M. Nieporent says:
Because this is about information which is already public. It makes no sense to claim that someone has a “privacy” interest in public information.
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November 17, 2009, 12:14 pmChrisHo says:
what is next? Having actors have bad movies they made removed from review sites?
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November 17, 2009, 12:26 pmyankee says:
There’s an enormous difference between information being in a file in some courthouse somewhere and having it printed on Wikipedia where anyone can find it with a single Google search.
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November 17, 2009, 12:27 pmPatHMV says:
Mithras, the jingoism is yours. Prof. Volokh did not decide that the privacy interests are “completely without merit.” He discussed the idea in some depth to explain why he believes that the opposite rule, the right to publish true facts without government prohibitions for “privacy” purposes, is most correct. That he came to a conclusion with which you disagree does not mean that he cavalierly dismissed the arguments or claimed that they had no merit whatsoever.
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November 17, 2009, 12:29 pmtroll_dc2 says:
I do not doubt that this is true, but I do not see how it makes a difference insofar as the First Amendment is concerned.
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November 17, 2009, 12:32 pmPatHMV says:
This situation is also not analogous to the “20 year old public peeing now on the sex registry” case. With the sex registry, the government itself is doing two things. First, it is the one actively promoting and publishing the list, giving it a governmental imprimatur that this is information which really should make a difference to people. One can easily determine both that the government should not itself publicize certain facts (sealing court records, etc.) and at the same time that the government should not prohibit private individuals from doing so. Second, the government is making a classification; it is defining urination in public as a “sex crime” for purposes of the registry. That is not simply a fact being reported; it is the government itself making a value-based classification.
If you want to allow for criminals convictions to be expunged from the public records at some point to further the (largely mythical) rehabilitation goal, that’s fine. I would disagree as a policy matter, but doing so would not implicate the rights of any other person. But government prohibition on private individuals uttering certain words and conveying true facts to other private individuals, THAT steps in and infringes on their rights.
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November 17, 2009, 12:35 pmCurt Fischer says:
The analogy to sex offender lists made by Ken Arromdee and possibly others in this thread fails in one key respect. Sex offender lists are published by the government, not by wikipedia. Many citizens are likely to see the government’s imprimatur as providing extra credibility to sex offender lists. I don’t see that the same is true of some article on Wikipedia. It *may* make good sense for the government to remove former sex offenders from its lists after they have been “rehabilitated”, but I don’t see what policy judgements in that area have to do with censoring the speech of private citizens on non-governmental websites.
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November 17, 2009, 12:37 pmKen Arromdee says:
It also classified the murderer as a murderer. What if he killed an intruder in self-defense? (which I doubt is legal in Germany) The public just sees “murder”, they don’t know that this murder isn’t as threatening to the neighbors as some other type of murder. Not seeing the difference between various types of murder is a lot like not seeing the difference between various types of sex crime.
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November 17, 2009, 12:38 pmPintler says:
The worse the crime, the more the perpetrator would like it hidden, but also the more everyone else would like to know about it. If one neighbor was convicted of burglary 20 years ago at age 19, and the other is just out of prison after his third forcible rape conviction, is society really better off as a whole by shielding only the rapist?
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November 17, 2009, 12:42 pmMithras says:
I disagree. His last sentence is a cavalier dismissal of the notion of a privacy right — he puts “privacy” in scare quotes — and nowhere in the post does he even acknowledge the basis for a different legal conception of the balance between the right to know v. the right to control information about yourself.
And the fact that this is about a criminal conviction is a red herring, the effect of which is to frame the conversation as one about “criminals’ rights.” It just presupposes the conclusion. Not very intellectually rigorous.
In any event, I don’t see how I can be labeled a jingo by arguing that one should treat both systems of legal philosophy with the respect they deserve.
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November 17, 2009, 12:51 pmtroll_dc2 says:
Ken, how would deal with the First Amendment issue?
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November 17, 2009, 12:51 pmtroll_dc2 says:
Ken, how would you deal with the First Amendment issue?
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November 17, 2009, 12:51 pmSuperSkeptic says:
I’m wholly unpersuaded that some perception of social stigma legitimizes an infringement of my First Amendment rights. It’s ridiculous, and yes, I’m largely dismissing any government “interest” otherwise. Get over your own social stigmas, leave my speech rights alone.
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November 17, 2009, 1:02 pmBrian Garst says:
If the word privacy is to have any meaning, it cannot apply to a public act. If I walk around outside without my pants on, I have no basis to argue that my privacy demands witnesses keep this fact to themselves. It doesn’t matter that the information is about me, the information itself does not belong to me.
The information about these two murderers does not belong to them. It belongs to anyone who holds it, and we can do with it as we please.
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November 17, 2009, 1:04 pmMithras says:
This is similar to the argument in connection with government-run surveillance cameras. Privacy advocates argue that having the government watch and store video of citizens’ actions when no crime has been committed is wrong because people should be free not to be watched. The surveillance advocates then say — as you do — there is no right to privacy in what you do in public because anyone could watch you do it. The privacy people say that the technology turns the possibility that you could be observed into a certainty, which is an infringement of liberty. It’s interesting that in both cases it’s the power of the technology which is creating the issue.
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November 17, 2009, 1:13 pmRichard Nieporent says:
What some people are arguing is in effect that people should be shielded from the consequences of their own actions. Nobody is talking about mining obscure data bases to find embarrassing information about a person. What we are talking about is public information. The fact that these individuals were convicted of a murder was reported in the news. This fact does not go away just because it happened 15 years ago. If you don’t want people saying bad things about you, don’t do bad things.
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November 17, 2009, 1:21 pmMithras says:
I wasn’t trying to gotcha anyone; I’m simply trying to point out that Germany and other EU nations have made different policy choices on the question of the right of privacy. Treating those choices as crazy or somehow an affront to what “should” be misses a potentially fruitful conversation about what is gained and what is given up in both systems (my example of surveillance cameras in the U.S. being an example of privacy that Americans don’t even realize they’re giving up).
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November 17, 2009, 1:39 pmegd says:
I’m sure that all of the individuals defending the privacy right here would agree that we should stop talking about Adolf Hitler. While his crimes were indeed grand, he is now dead. There is no sort of punishment the German government could have done above that, and therefore we should forget his crimes.
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November 17, 2009, 1:57 pmHarryEagar says:
There is an excellent argument for this sort of thing in Viktor Mayor-Schonberg’s new book, ‘Delete.’
I say excellent, although it did not persuade me.
Significantly, Mayor-Schonberg has a German (Austrian, apparently) law degree.
German notions of privacy baffle me. Some years ago, I was investigating what I suspected (correctly as it turned out) was a bogus claim of a degree from a German university. I was astounded to learn that German universities are not allowed to reveal the names of their graduates.
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November 17, 2009, 2:04 pmPatHMV says:
Privacy is not in “scare quotes.” I suspect it is in quotation marks to indicate that the word is being used in the bizarro legal definition it has come to have, which is more akin to “zone of protected liberty” rather than actual private actions. As others have noted, a murder is not “private,” nor is the fact that one was convicted of murder “private” in any normal definition of the word. Both involved other people; the former at least the victim, while the latter involves police, judges, juries, prison officials, public records of all sorts. A great many individuals were undoubtedly aware of the murder and his conviction when it actually happened. Now, the European rule you advocate would prohibit them from discussing that fact in public at all, even though all of their knowledge comes from published reports or their personal knowledge at the time of the murder and prosecution itself.
We Americans are well aware that Europe has historically had less regard for individual freedoms, and greater government intrusion into individuals’ lives, than we have. It’s not news to us that you have different cultural preferences. You claim to do it for the greater good, of course. I remember talking with a Swede once who was livid over some claimed American intrusion into “privacy” (never actually defined, of course). I pointed out that his country required cradle-to-grave registration of every single person in the country, mandating by law that each person notify the central government of every address change within something like 2 weeks of moving. But that was different, he explained, because their government was doing it only for good things, like providing welfare benefits.
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November 17, 2009, 2:15 pmMartinned says:
Recently, the most visited (by far) Dutch blog GeenStijl were sued for publishing footage of a drunk law student after a night out on the town. Their point was something like “Look here, our future elite”. The footage had to be removed under copyright law, which says that an unauthorised “portrait” of a person may not be published without their permission if such publication goes against their “reasonable interest”. Privacy didn’t even directly come into it.
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November 17, 2009, 2:18 pmMartinned says:
Not to mention that it allows us to dispense with a separate voting registry: Everyone is automatically registered to vote. (Also: No birth certificates.)
In general, people here are justifiably concerned about various government registries and they way that they can or cannot be linked. In each case, the question is whether the benefit outweighs the cost.
Hardly. Discuss away. Only when writing in the newspaper, papers in many European countries tend to write about Wolfgang W. and Manfred L., and place black bars over their eyes. That does not intefere with public discourse at all.
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November 17, 2009, 2:26 pmPatHMV says:
If it does not “interfere with public discourse at all” and it’s readily apparent from reading the paper who they are talking about, then what benefit does the law possibly serve?
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November 17, 2009, 2:31 pmMartinned says:
On the contrary, there is a great amount of case law on art. 8 ECHR:
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November 17, 2009, 2:35 pmMartinned says:
No, the point is to make it impossible to know who exactly they are talking about, unless the reader is personally connected to the case. The specific identity of the burglar/murderer/terrorist/whatever is irrelevant to the story. The subject of public discourse is that a crime has been committed, whether this has handled appropriately, what can be done to prevent this crime in the future, etc. None of this requires the disclosure of the identity of the criminal, who is now behind bars.
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November 17, 2009, 2:38 pmDavid Schwartz says:
Martinned: That’s just complete and utter nonsense. I’m sorry to be rude, but I don’t know how else to put it.
As only the most obvious examples of how utterly absurd this is — how can you possibly tell if a crime was handled appropriately or not if you can’t research what the apprehended criminal did after his punishment ended? How can you figure out how to prevent similar crimes in the future if you can’t research whether what you did in this case prevented or didn’t prevent similar crimes committed by the same person?
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November 17, 2009, 2:51 pmPatHMV says:
“the right to live one’s own life with a minimum of interference” is hardly an exacting definition, and thus means whatever some future bureaucrat decides it should mean. I’ll give you some credit for a couple of paragraphs of section 14, as it does at least spell out some specific provisions, though those specific provisions are only anti-paparazzi, celebrity-protection measures. The rest simply says “privacy is protected” and “editors should be liable for invasions of privacy by their papers.”
The provision as a whole does illustrate an extremely significant distinction between American and European philosophies. Europeans, on the whole, see no difference at all between “positive” rights and “negative” rights. Thus, this article discusses the need to balance the right to free speech with the right to be free from invasions of privacy. It doesn’t even acknowledge any fundamental difference between the negative right (that one has to be free from government coercion of one’s speech) and the positive right (that one has, in Europe, to have the government take action on one’s behalf, to limit what is said about them). In this case, Europe is perfectly happy to infringe upon the negative rights of some individuals (the right to speak true facts, and opinions) in order to provide a positive right to other individuals (the right to government enforcement of one’s “privacy”). There is a substantial difference.
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November 17, 2009, 2:56 pmMartinned says:
Hang on, you want the right to research me? Or at least any person ever convicted of a felony? And you want the right to do that over the internet? Really? Is that why you want felons’ names in the paper?
What you’re talking about is a scandalous violation of people’s privacy. It is exactly to make that impossible that Europeans tend to keep people’s names out of the paper unless they consent.
Parliamentary inquiries and other official inquiries can all access the information you are talking about by picking up the phone and asking for the files. Journalists and scholars can do what they always do: ask around. In many other circumstances, an individual can obtain a “statement regarding behaviour”, i.e. an official statement from the department of justice saying that this person does not have a criminal record. (You need it for a variety of jobs, including teaching and government work, and also if you want to join the bar, I think.)
The kind of personal internet research you are talking about is exactly what these laws are meant to prevent.
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November 17, 2009, 3:04 pmMartinned says:
@PatHMV: Like it says in par. 1, the resolution was passed against the background of the death of Princess Diana, the Princess of Wales. Hence the focus on paparazzi. (I pulled it out of another Princess case, the case of Caroline von Hannover, the sister of Prince Albert of Monaco, against Germany.)
And yes, the US Bill of Rights, being written in the 18th century before anyone started thinking about positive rights, does not on its face deal with such rights. They are only protected to the extent that they have been read into certain provisions by the courts. Later lists of rights, such as the ECHR, the German Constitution or the Canadan Charter of Rights and Freedoms, tend to have a more balanced view.
That said, you can overdo it. I can’t say I’m particularly thrilled about the EU Charter of Rights, which always used to be harmless because it was non-binding, but now that the Lisbon treaty has been ratified, it is no longer so. (Fortunately, the Lisbon Treaty also requires the EU to ratify the ECHR, meaning that appeals will be possible from the EU’s ECJ to the ECtHR, so hopefully the ECJ won’t build its own rights regime around the EU Charter.)
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November 17, 2009, 3:13 pmMartinned says:
P.S. This is what the EU Charter says about Privacy:
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November 17, 2009, 3:15 pmMithras says:
Please re-read my posts. You seem to think I am advocating for a certain policy to apply to both the US and the EU. You’re mistaken. As I said above, I believe that the proper outcome in the US courts under US law is for a case like this to be dismissed. However, this is a case in German courts under German law. You’re also mistaken in assuming I am European.
Once more, the appeal to patriotism is jingoistic and beside the point.
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November 17, 2009, 3:23 pmtroll_dc2 says:
I can see an effort by those who are fond of citing foreign law to justify certain outcomes under our Constitution to put the European concept of right of privacy into the Fourteenth Amendment once the Privileges and Immunities Clause becomes revived.
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November 17, 2009, 3:27 pmDavid Nieporent says:
There’s a difference, but it’s quantitative. Whereas the difference between private and public is qualitative.
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November 17, 2009, 4:00 pmtamerlane says:
As I suggested earlier, the ulterior and primary purpose of these laws appears to be the protection of governments, government bureaucrats, and other elites. I find it amusing that a defender of these laws provides this evidence for my case.
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November 17, 2009, 4:12 pmMartinned says:
Don’t be silly. The only people who can be named with their full name and picture without their consent are members of “governments, government bureaucrats, and other elites”. The ECtHR certainly didn’t say that if Princess Caroline commits a crime, she has to be described as “Princess Caroline von H.” It only said that paparazzi cannot take her picture unless she consents, possibly by attending some kind of public event, or unless she does something particularly newsworthy. (Like, say, kill someone.)
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November 17, 2009, 4:22 pmMartinned says:
And for those who have such high hopes that clearer minds will prevail when it comes to such things as sex offender registries, here is what happened when the News of the World (the same paper I mentioned above was sued by Max Mosely) published the British Sex Offenders list in 2000:
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November 17, 2009, 4:31 pmMartinned says:
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November 17, 2009, 4:34 pmDavid Schwartz says:
You have just agreed with my refutation of your argument:
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November 17, 2009, 5:14 pmMartinned says:
@David Schwartz: Not at all. There’s a difference between “public discourse” and someone googling all about my life, or someone else’s, just because he feels like it. That’s where the (investigative) journalists come in.
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November 17, 2009, 5:40 pmPintler says:
That’s certainly an example of the bad. OTOH, the sheriff’s office here routinely sends out notices when sex offenders move into your neighborhood. That have a picture, criminal history, and an address like ‘the 1400 block of Maple Drive’, as well as a bold face warning that harassment will not be tolerated. This has been going on for a few years — we have received a dozen or so, and the metro area must have received thousands. I have heard of an occasional problem in other states, but as best I can recall there have been no local incidents. I would say it works well.
We have a fellow a couple of doors down who, many years ago, served time for armed robbery and burglary. I exchange pleasantries when I see him, but have not included him in the set of neighbors to that I give a house key and alarm codes to so they can watch the house when we’re gone. I don’t feel I am unduly discriminating against him.
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November 17, 2009, 6:10 pmDavid Schwartz says:
Martinned: I’ll repeat my argument in case you missed it:
You seem to be standing by the argument this refutes without any counter-argument.
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November 17, 2009, 6:10 pmMartinned says:
@David Schwartz: “Public discourse” is not the same as individual newspaper readers doing research. It’s a conversation about a certain set of facts, or about competing sets of facts, as the case may be.
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November 17, 2009, 6:30 pmMartinned says:
I can’t even begin to describe how many privacy laws (and other laws) that would violate if a law enforcement agency did that here.
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November 17, 2009, 6:32 pmDavid Schwartz says:
This is an utterly absurd claim. I honestly cannot find words that are capable of stating how obviously ridiculous that is. Are you serious? Do you think most of the public discourse on this site would be possible if individuals could not do independent research?
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November 17, 2009, 6:37 pmMartinned says:
Yes.
Long version: The conspirators do research the old fashioned way, by actually looking at the documents, asking questions, etc. This they can do regardless of which side of the Atlantic they are on. The commenters on this site, barring a few exceptions, do “research” by googling newspaper reports, journal articles, etc. Under ordinary European privacy law the conversation on this blog would be exactly the same. Nothing discussed on this blog turns on the identity of the people discussed, unless we’re talking about Supreme Court nominees, politicians, etc. In an earlier comment in this thread, I cited the case of A. v Norway. The fact that that case is called “A v Norway” instead of “Abraham v Norway” or “Ahmed v Norway” or whatever the guy’s name is, is irrelevant to the discussion, and to any other discussion we are likely to have. In Dutch legal parlance, important cases are usually given a nickname when the names of the parties are redacted out.
Even in the US, one of the most important cases is Roe v Wade, a case brought by Jane Roe, John and Mary Doe and dr. James Hubert Hallford against Wade, the District Attorney of Dallas County. In 36 years of incessantly talking about that case, how has “public discourse” ever been hampered by the fact that the real names of 3 of the 4 plaintiffs are not known? The conversation is exactly the same, even though you and I are hampered in our ability to argue against the case by our inability to google how many (more?) abortions Jane Roe had in the years and decades after the ruling.
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November 17, 2009, 7:08 pmDavid Schwartz says:
Martinned: The specific things you claimed were important matters of public discourse (whether a crime was handled appropriately, how to prevent similar crimes in the future, and so on) are the specific areas where precisely that information *does* matter. For at least the third time:
You keep pretending to respond to this without actually addressing it.
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November 17, 2009, 7:36 pmMartinned says:
Yes, and that information can (and should) be provided in newspapers and otherwise. But how does any of that necessitate identifying the criminal’s name, picture, etc? Why does it matter whether Bernard Madoff is 5 ft. 10 or 6 ft. 4, whether his name is Madoff or Marx, whether he is caucasian or black, etc.? I don’t see how such information about the accused — or now convicted person — affects the “public discourse” about the case in any way. The journalist sitting in court knows these facts, but why should he not be barred from writing them in the paper?
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November 17, 2009, 7:50 pmDavid Schwartz says:
Martinned: You don’t seem to realize how often contributing usefully to public discourse involves doing original research and making new connections. Without Madoff’s name, there would be no way to tie all his deeds together or tie his deeds to his past and future business associations. The clear distinction between journalists and the public you rely on no longer exists.
And as for whether his height matters or whether his color matters — those are the precise subjects that must be the subject of public discourse. Maybe they don’t matter, maybe they do. The question is whether judges can substitute their opinions of what matters and what doesn’t from the process of public discourse, which may well produce a very different outcome. If we knew before the public discourse what mattered and what didn’t, we wouldn’t need much public discourse.
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November 17, 2009, 8:21 pmreadery says:
I agree with the result but not the argument. The idea that government has no right to take a side in a moral debate is absurd.
By enacting the First Amendment, government took a side in a moral debate about what type of speech should be permitted. It is because, and only because, government has taken a side in a moral debate, that the First Amendment exists to control the case. Determining whether this is protected or unprotected speech has to be decided by legal analysis of the First Amendment’s scope to determine which side of the moral debate the government has actually taken, not by appeals to any nonexistent general principle that government has no right to take sides on moral debates.
After all, opponents of the 13th Amendment made the identical argument, that government has no right to take sides in a moral debate. So did opponents of the 21st. Some moral positions turn out to be sound, others don’t. But both are equally positions in moral debates.
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November 17, 2009, 8:39 pmPatHMV says:
martinned continues to be a fruitful source of fundamental distinctions between European (and, to a certain extent, American liberal) philosophies and traditional American philosophies. To justify a comprehensive ban on all publication of the names of ex-cons, he points to the criminal misbehavior of a few vigilantes in England. This proves nothing, of course, in this debate, because America sees very few episodes of vigilantism, even against people on sex offender registries, despite regularly publishing such information. The European view is to outlaw things that cause no harm in and of themselves, simply because they may be misused by some. This is the same attitude which calls for the outlaw of guns from all people, simply because some anti-social people might misuse them.
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November 17, 2009, 9:44 pmMartinned says:
I agree. There’s no question that this is a matter of competing rights. As the title of the post says: the right to privacy vs. the right to free speech. As the Political Assembly of the Council of Europe (hereafter: PACE) resolution says: those rights are equal, in the sense that neither dominates structurally over the other. When they conflict, some kind of balance must be struck, and my point is merely that keeping certain personal details of convicted (or accused) criminals out of the media is not an unreasonable way to strike the balance.
To be clear: this is a legal issue. To be precise, it is a German (and ECHR) legal issue. The result under US law is clear. If and when this case reaches the appellate courts, for sure the lawyers for wikipedia will cite US case law, though I doubt the courts will be impressed. As far as I can tell, ECtHR case law allows for the kind of censorship that these plaintiffs want, but does not require it. (The Mosely case, linked above, may change that, but it looks like they won’t go further than some kind of notification requirement, whereby newspapers are required to notify the person they are going to write about.)
As well as bringing up a classic clash of rights, there are also some very interesting internet/jurisdiction issues here. Presumably, the German courts will be able to give judgement regarding internet sites accessible in Germany, the same way Turkish courts keep shutting down Youtube in Turkey. We’ll see how this turns out...
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November 17, 2009, 9:47 pmShelbyC says:
Because the government doesn’t get to decide which facts affect the “public discourse”
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November 17, 2009, 9:56 pmDavid Schwartz says:
Arguing that your right to privacy requires the New York Times refrain from printing an editorial that shares facts rightfully obtained is as absurd as arguing that your right to free speech requires that the New York Times print your editorial defending yourself. No, there are no competing rights here. The right to privacy is the right to *keep* things private, not to *make* them private.
There would be a competing rights argument if the information were wrongfully obtained by a third party.
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November 17, 2009, 9:57 pmMartinned says:
No dice.
I pointed to the News of the World/sex offender story as a side note. I did not intend for it to justify anything.
Privacy is a fundamental right, recognised in human rights treaties and constitutions the world over, including art. 8 ECHR, art. 10 of the Dutch constitution, art. 7 and 8 of the EU Charter of Fundamental Rights, and many others. Being a fundamental right, it needs no further justification. The idea that some legitimate (state) interest might be served by protecting a criminal’s right to privacy, while worth considering, is besides the point. Murderers have a right to privacy the same way website publishers have a right to freedom of speech. Neither is somehow superior to the other, and neither needs justification through reference to some other goal or interest.
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November 17, 2009, 9:59 pmMartinned says:
Why not? (As long as we substitute “the judge” for “the government”.) That’s how you resolve conflict of rights issues: by striking a reasonable balance.
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November 17, 2009, 10:01 pmMartinned says:
Now you’re confusing US law for law generally again. Just because US law only recognises a limited right to privacy doesn’t mean that no such right exists. (Or at least that other states wouldn’t be justified in recognising such a right. I don’t want to get stuck talking about natural rights again.)
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November 17, 2009, 10:03 pmDavid Nieporent says:
Actually there is a question that this is a matter of competing rights. On the one side, there’s clearly a right: the right of free speech. On the other side, we have the “right” to keep people from revealing information about you that’s already public — in other words, no sort of right at all.
Based on the article, it appears that there are no “lawyers for wikipedia”; the company is properly ignoring the suit, as Wikipedia has no connection to Germany and the German courts have no ability to enforce any sort of ruling against Wikipedia.
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November 17, 2009, 10:04 pmDavid Nieporent says:
Even assuming that’s true, already-public information by definition has nothing to do with privacy.
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November 17, 2009, 10:07 pmShelbyC says:
But the right you’re talking about isn’t a right in any meaningful sense. Many people already know this information, and you can’t force them to forget.
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November 17, 2009, 10:07 pmMithras says:
Martinned, you’ve done yeoman work here, but I think it’s wasted.
It’s dispiriting to see American lawyers be so parochial that they can’t even think back to their conflict of laws classes. (Reminder: Legal systems differ, and you won’t get very far by starting off with the premise that one is superior to another before you understand them both.) It’s even worse to see a law professor — tenured at an elite institution, who is supposedly some sort of notable intellectual and a political moderate — engaging in simpleminded xenophobia.
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November 17, 2009, 10:08 pmDavid Schwartz says:
Calling such a thing a ‘right to privacy’ is Orwellian. Privacy is, by definition, the right to refuse to disclose something. It is the right to *keep* a secret or to *maintain* concealment. To call a right to control information others rightfully possess a ‘right to privacy’ is akin to calling commandeering someone else’s printing press a right of ‘free speech’.
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November 17, 2009, 10:14 pmBlue says:
“Murderers have a right to privacy the same way website publishers have a right to freedom of speech. Neither is somehow superior to the other, and neither needs justification through reference to some other goal or interest.”
Wow, it takes a real...intellect...to be able to come up with THAT relationship!
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November 17, 2009, 10:42 pmMartinned says:
I think the better analogy is to copyrights. I still own the things I write even after I put them on SSRN. Putting an article on SSRN just means I consent to certain uses. If a newspaper downloads my article from SSRN, that doesn’t mean they are thereby allowed to print it. (Assuming they would want to.) What is so strange about me also owning my private information, meaning that I get to control — subject to limitations set by law, etc. — what others get to do with private information about me, regardless of how they obtained this information?
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November 17, 2009, 10:47 pmDavid Nieporent says:
First, because it’s not private information. It’s public information.
Second, from whence does your “ownership” of this “private information” derive? Copyright isn’t the ownership of “information,” but the ownership of expression, and this ownership comes from the fact that you created it. (Which is why independent creation is a defense to copyright infringement. As is fair use.) It’s hard to see how anyone can own facts, and specifically, it’s really hard to see how killing someone should give you ownership of the fact that you killed someone.
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November 17, 2009, 11:09 pmDavid Schwartz says:
Yes, and this analogy shows precisely why the purported “right” is so outrageous. It is akin to a “copyright” on a single individual true fact that others acquired from their own sources.
The crux of copyright is that you created the expression through creative effort, you elected not to keep the expression private but to release it subject to implicit conditions (and others chose to accept that expression from you subject to those conditions, with the clear understanding that they could use the ideas therein however they please), and the expression is but one out of millions of equally good expressions of the same idea.
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November 17, 2009, 11:48 pmKirk Parker says:
I’m with the Davids here: the fact that you murdered–no, for clarity make that the fact that you were convicted by the state of murder had darned well better be public information, not private!
Think what it would mean if it truly were private: the police arrested you secretly, and no one knew why you disappeared. They then held you secretly, and the government held a secret trial from which no information leaked. Finally, they incarcerated you in a covert manner for the duration of your sentence. No habeas corpus for you!
What could possibly go wrong with any of this?
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November 18, 2009, 12:03 amneurodoc says:
Yes, and that classification is the result of the most rigorous process we can humanly produce, namely a trial, with the government bearing the burden of persuasion, an extraordinarily heavy burden in criminal cases, “guilty beyond a reasonable doubt.” And carefully defined (and contested) distinctions are made between first–degree murder and what is counted less grievous illegal taking of a life, e.g., manslaughter. (“Self-defense” is usually an excuse, and if accepted by the court, then the accused is not held to be a “murderer.”)
You don’t know this, that’s why you think the Werle and Lauber matter is analagous to the business of being listed on a sex-offender registry for having urinated behind a bush?
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November 18, 2009, 12:26 amneurodoc says:
How many Americans would accept being limited in the names they could give their children to ones formally approved by their government? I don’t know whether this should be viewed as a “privacy” issue, but it certainly goes to our notions of individual rights and freedom to chose for ourselves.
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November 18, 2009, 12:35 amneurodoc says:
I think that I and others (e.g., PatHMV) have done that. But if we haven’t, doesn’t the burden of showing an analogy to be apt fall on the person who would argue on the basis of the analogy they propose? I fail to see where Ken Arromdee (or anyone else here) made a case that there was much in common between the government not blocking publication of the names of individuals convicted of murder after their sentences were served and the government publishing and publicizing lists of those who years before “urinated behind a bush.”
Suppose the discussion is about dogs. I pop up to observe that there are a number of commonalities between dogs and cats (e.g., most dogs and cats, though not all, have fur), and in turn cats and mice have some of those same things in common (e.g., most cats and mice, though not all, have fur). If I would now try to rebut someone else’s case about dogs with observations and arguments related to mice, would the other person have to deny any shared commonalities among dogs and cats and mice, or engage with my observations and arguments related to mice if they are defeat my “logic”? Or is it my burden to show that the evidence regarding mice (e.g., reasoning based on molecular biology work done on mice, but never done on dogs) is pertinent?
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November 18, 2009, 1:26 amKen Arromdee says:
Germany has a felony murder law. If it’s anything like a typical felony murder law, it means that if you’re robbing a bank with a note and no real weapon and the police shoot your partner, you’re now a murderer.
The analogy to the sex offender registry is that the government is making the classification, and doing so in such a way which pretty much encourages the public to take it out of context. Or are you suggesting that “murder” is defined so specifically that a person in Germany upon learning that someone is a murderer, would never think it’s more serious than it really is? And even if this is true for murder, do you think it’s true for every single crime that the law is trying to conceal?
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November 18, 2009, 1:34 amKen Arromdee says:
On the contrary. Adolf Hitler hasn’t paid his debt to society. The fact that he is now dead and can’t be punished further means that he can’t pay–not that he has paid.
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November 18, 2009, 1:45 amneurodoc says:
Professor Volokh certainly doesn’t need me to speak up on his behalf, least of all to defend him against crap like “who is supposedly some sort of notable intellectual and a political moderate.” But I must ask, what do you have for “xenophobia”? I see nothing. You really should retract that baseless and outrageous accusation, but I don’t expect you will.
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November 18, 2009, 1:46 amneurodoc says:
At the risk of invading the privacy of Werle and Lauber, may I ask if you know how they went about murdering their victim? Were there any extenuating or mitigating circumstances? Did they demonstrate remorse for their crime? Was one a “bystander” while the other actually killed the victim, or did they both participate directly?
No matter the answers to those questions, if you know them, you believe that Werle and Lauber did not forfeit their privacy interests in this matter when they committed their crime? Do you think such information should have been kept from the public all along, or only after they were released from prison, arguably having “paid their debt to society”? Should all legal records be placed under seal, or their convictions expunged since they served their sentence, and that would better protect their privacy interest that you exalt above a public right to “remember”?
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November 18, 2009, 2:00 amneurodoc says:
OJ Simpson was never convicted of murdering his ex-wife Nicole Brown and the hapless Ron Goldman, but he was found civilly liable for their murders. So because OJ was found “not guilty” (that ain’t “innocent”), should the government protect his privacy interests by barring any further publication of the facts of those cases in connection with him? Afterall, OJ had no debt to pay society, since he was convicted of no crime, right? And the debt he owed the Goldman family, that was a financial matter strictly between him and the Goldmans, right? When OJ was later tried (and convicted) on charges related to that break-in in Las Vegas, should that have changed anything, only then allowing the earlier criminal charges, of which he was acquitted, to be publicized and discussed?
How would the privacy matter with respect to him have played out in Germany, if such a singular case would be imaginable there?
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November 18, 2009, 2:08 amMartinned says:
There’s a nice bit of comparative law right there: The felony murder rule is of common law origin, and if I’m not mistaken most common law juristictions outside the US don’t have it anymore, either. Over here in Europe we consider it an outrage against justice.
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November 18, 2009, 7:53 amMartinned says:
And where, pray tell, is it otherwise?
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November 18, 2009, 7:55 amneurodoc says:
Where is what otherwise? You are not under the misimpression that in the United States parents can only chose names for their children from a list of names officially approved by the state, are you?
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November 18, 2009, 8:03 amMartinned says:
My bad, I should have been clearer. It is “private” information not because no one knows about it, but because it uniquely identifies and/or uniquely refers to one single individual. It’s not that he killed someone that is private, but his name, what he looks like, etc.
Ownership of this right derives from the control that I, as an individual, should have over my life. It’s a liberty interest, referring to the traces I choose to leave behind as I move through society. I can have a Facebook page if I choose to, but others can’t use my “private information” to make me a public profile.
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November 18, 2009, 8:06 amMartinned says:
No, I’m under the impression that parents can chose whatever names they like in every country worth comparing the US to. (I can’t vouch for China, but I’m not sure if that matters.)
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November 18, 2009, 8:08 amDavid M. Nieporent says:
You’re mistaken. Germany has similar types of rules.
(Now is your cue to explain how when you said that Europeans could choose, you didn’t mean choose freely.)
But again, how is any of that “private”? You reveal your name and what you look like to hundreds of people every day. In other words, it’s public already.
How can it be a “liberty interest” to prevent people from telling the truth about you? It’s not your “life” that you’re seeking “control” over, but facts. You of course have the right to choose what traces you leave behind — by not killing someone. Once you’ve done that; you’ve made your choice to leave that “trace.” It’s ludicrous to suggest that if you punch me in the face, you have some “liberty interest” in keeping me from telling other people about it.
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November 18, 2009, 9:01 amMartinned says:
No, now is my cue to explain that a rule that forbids parents from calling their children after condom brands is a de minimis restriction on liberty.
Breathe... Now read what I wrote again. That information is private in the same way my home or my car or my office is private: It’s mine and no one else’s.
Let’s just agree to disagree about this one. My point is this thread was merely to explain that the US way of doing things is not gospel, i.e. not the only way. I don’t know enough about German law to be able to say whether the plaintiffs will succeed, I’m not even entirely sure about Dutch law. (I think under Dutch law they may well win, assuming the jurisdiction issue is sorted out.)
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November 18, 2009, 9:38 amKirk Parker says:
Martinned,
Regarding names, we aren’t talking about what you “call” someone, but rather what you are allowed to put on the birth certificate (or whatever official registry takes the place of that.) Back in the 80s we had both Swiss and Dutch colleagues tell us that such names had to come from an official list. Is this no longer the case? Or was it never the case and we simply misunderstood what they were saying?
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November 18, 2009, 9:58 amDavid Schwartz says:
And you can negate any right this way. No government is going to violate rights when it has no reason whatsoever to do so. It’s going to do so when it has some reason, legitimate or not. All it has to do is call that reason a right, claim a conflict of rights, and then declare that the actual right loses the conflict for the very reason it wanted to violate the right in the first place.
Want to violate the right to a speedy trial while claiming to respect it? Easy. Just figure out why you want to violate it — say, to make sure criminals don’t get away with their crimes because the State needs lots of time to get the perfect case. Call that a right, say “society’s right to see that its laws are justly enforced”. Then claim the two rights conflict — society can’t justly enforce its laws in some cases if the accused gets a speedy trial. Then declare the speedy trial right loses for the very reason you wanted to violate it (why would you want to violate if not because you thought that what you got from violating it was more important than respecting it?). There you go, you can claim to respect the right without actually doing so.
The whole point of these things being actual *rights* is that they don’t yield to purported rights. If the alleged counterbalancing right doesn’t hold up to strict scrutiny, then the actual right is being trampled.
Because this purported “right to privacy” is such a transparent sham, the claim that it has to be balanced against the very real right to speak the truth in public discourse is a mere excuse to trample the real right. It is not about privacy, but about “privacy”. It is not about private facts but “private” facts. Something is private because nobody knows it and you take effective steps to keep it secret, not because it’s about someone. Privacy is the right not to disclose private information, not the right to stop others who rightfully acquired public information from sharing it with others in public discourse.
I agree, the US way is not gospel. But this simply is *not* a conflict of rights. That is the excuse for trampling on a real right, and that’s almost always the excuse.
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November 18, 2009, 10:05 amKen Arromdee says:
They’re on parole, and parole usually requires demonstrating remorse, so yes to that.
As for the rest, I don’t care. You can’t make a law which says “some crimes that are classified the same way by the law may be treated differently if there are mitigating circumstances”–if the law could recognize the mitigating circumstances it wouldn’t have classified the crimes the same way to begin with. All you can do is make it for everyone.
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November 18, 2009, 10:20 amMartinned says:
I’ve never heard of such a list, neither here nor in any other country, but let me check...
[...]
The whole issue of names, etc. is part of the family law chapter of the Civil Code (i.e. book 1). Art. 4 of the current Dutch civil code states, in my translation, as follows:
Informally, it appears the officer will refuse names that are unprecedented, i.e. that have never been used before, that are wholly made up. But if the parents object, the city still has to convince a judge that the legal standard of “inappropriate” (which, in the Dutch original, is limited to the meaning that has the connotation of indecent) has been met.
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November 18, 2009, 10:22 amMartinned says:
No, what you’re talking about is a clash between an individual right and “society’s right”. What I’m talking about is a clash between the liberty rights of two individuals.
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November 18, 2009, 10:24 amKirk Parker says:
Martinned,
Was it also your cue to ignore the more substantial restrictions, such as names that sound too much like surnames, or “boys” names being given to girls? No to mention that fact that up until just last year the restrictions were much more strict?
But really, the details are not nearly so interesting to me as the fact that the “list” exists at all.
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November 18, 2009, 10:25 amKirk Parker says:
“What I’m talking about is a clash between the liberty rights of two individuals.”
Clearly we can stop talking any time, as there is no agreement possible here. Those of us on the other side simply deny that a person has a “liberty right” in suppressing information about themselves that is already public knowledge.
Might I modestly propose that we leave off kicking this poor horse, and move onto something where consensus might be achieved, like perhaps gun control? :-)
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November 18, 2009, 10:33 amBlue says:
What a ridiculous analogy. If you put something up on SSRN you cannot stop me from:
1) Naming you as the author;
2) Expressing praise or criticism of your work;
3) Using your work to build new knowledge in work of my own;
4) Quoting sections of your actual text under fair use.
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November 18, 2009, 11:13 amneurodoc says:
Do you base that assertion on actual knowledge, or do you just imagine it to be so? If the former, please tell the rest of us how we can confirm the “parole usually requires demonstrating remorse.” Would it surprise or disturb you to learn that the last member of the Bader-Meinhof crew, a truly nasty group of terrorists, was recently released from prison without even feigning remorse?
That’s fine, but it doesn’t mean that no one else should care and want to know.
Surely you are not maintaining that two people cannot be convicted of “crimes that are classified the same way by the law” yet “be treated differently if there are mitigating (or aggravating) circumstances,” because that ain’t so. In capital cases, possible “aggravating” (e.g., tortured the victim) and “mitigating” (e.g., youth) factors must be weighed, and if a death sentence goes up on appeal, as it almost certainly will, the appellate court will look carefully at that weighing of “aggravating” and “mitigating” factors.
Maybe what you mean is that the “elements” of a crime determine the classification, and we don’t refer to those elements as “aggravating”/“mitigating” factors, though they might be seen as such. If you cause the death of another without legal excuse (e.g., you acted in self-defense or were insane and hence incapable of the necessary mens rea), it matters a great deal whether you intended their death or their death came about as the result of your willful recklessness and indifference to the safety of others. The former is penalized more severely than the latter, though the latter may imply more dangerousness, that is greater likelihood of future violence and threat to others. If Werle or Lauber were buying a unit in my co-op building, I’d like to know, and think I shouldn’t have to jump through hoops to find out, what crime(s) they committed and those details that came out in open court. Under very exceptional circumstances a court might seal the record, but only under very exceptional circumstances should it do so, and that decision should be reviewable by a higher court if challenged, as newspapers are wont to do.
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November 18, 2009, 11:48 amMartinned says:
That’s another structural difference between the US and Europe: policy towards criminals/people with a criminal record. The fact that Americans tend to have exactly zero empathy for anyone who ever went near a crime doesn’t only explain the difference in levels of sentencing, it also explains most commenter’s unwillingness to consider the possibility that someone with a criminal record might have a privacy right to stop that fact from being published on the internet.
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November 18, 2009, 12:45 pmBlue says:
It has nothing to do with our attitudes about crime. You’re research paper analogy, for example, is just as absurd.
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November 18, 2009, 2:27 pmMartinned says:
Now that you mention it, my impression is that you, specifically, don’t get the concept of an analogy. I could explain it, but that’s what we have wiki for. (One clue: When someone proposes an analogy, they’re not saying the two are exactly the same, but only that they’re the same in certain respects that are relevant to the problem at hand.)
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November 18, 2009, 2:37 pmDavid Schwartz says:
You really think it’s fair to respond to my argument by attacking my example of it? The exact same argument could be made about the victim’s individual right to justice. And, of course, free speech is attacked with an individual “right not to be offended” and a “right not to have one’s religion denigrated” and so on.
Someone who wants to take away a right can always call whatever it is that makes them want to take away a right itself a right. They then have a “clash of rights” and can decide that the right they want to take away loses. Such arguments must receive strict scrutiny, and if the purported winning right does not withstand the scrutiny, the argument is shown to be a sham to take away the very real right.
And this purported “right to privacy” doesn’t even come close to withstanding such scrutiny.
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November 18, 2009, 2:38 pmMartinned says:
Your loss.
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November 18, 2009, 3:10 pmDavid Nieporent says:
See? Every time it’s shown that Europeans don’t believe in liberty, your response is simply to denigrate liberty. But whether it’s “de minimis” or not, you must admit that your claim that parents can name their kids anything they want was wrong. And if you actually read the article I linked to, you’ll see that the condom example was a hypothetical proposed by some government bureaucrat, whereas actual examples are much more mundane.
You’re merely restating your premise, not explaining it. How can facts be “yours and no one else’s”? How can you own facts?
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November 18, 2009, 5:49 pmDavid Nieporent says:
Not unless you misquoted; the legal standard also excludes names “that are identical to existing family names, unless those are also common first names.”
Moreover, notwithstanding your claim that parents can name their children anything they want, a bureaucrat can reject a name, and force the parents to go to court to get the name they want.
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November 18, 2009, 6:00 pmDavid Nieporent says:
No, it doesn’t; it has nothing to do with Americans’ views about criminals. We know this because most commenters are unwilling to consider the possibility that someone might have a privacy right to stop any public fact from being published on the internet, whether related to a criminal record or not. We don’t think that people own facts and have a right to prevent other people from talking about them.
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November 18, 2009, 6:04 pmMartinned says:
Is Google also free to publish information about what books you read? Is Amazon?
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November 18, 2009, 7:06 pmShelbyC says:
Unless they’re restricted by some contractual agreement, why wouldn’t they be?
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November 18, 2009, 7:30 pmDavid Nieporent says:
Unless there’s a contractual provision to the contrary, sure.
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November 18, 2009, 7:42 pmShelbyC says:
Hey!
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November 18, 2009, 8:54 pmDavid Nieporent says:
Sorry, Shelby; I owe you a Coke.
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November 18, 2009, 9:22 pmDavid Schwartz says:
There may be many ways to determine whether or not such a publication should be allowed or not, but the political process is perhaps the worst one imaginable. And of the possible awful political ways to do it, inventing an incoherent “right to privacy” that can be claimed to trump Google and Amazon’s very real speech rights would be perahps the worst of the worst such political ways.
There are costs and benefits to such privacy. If it’s important to me, I’m free to negotiate it. If it’s not important to Google, they are free to bind themselves to get my business.
The government forcing me to pay the costs of a “privacy” I may or may not want and am free to negotiate for if it is important to me and free to not pay the costs for it if it’s not, does me no favors.
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November 18, 2009, 10:39 pmMartinned says:
http://writ.news.findlaw.com/ramasastry/20091117.html
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November 20, 2009, 2:10 pmneurodoc says:
OK, just skimmed it very fast. Was there something there that might avail Messrs. (herren?) Werle and Lauber in their attempt to erase the public record of the murder they committed? Didn’t appear that anything in the article would pertain to the facts of their case, and I can’t imagine the FTC having anything to say about Wikipedia’s blowing the murderers off.
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November 20, 2009, 3:07 pm