'Politics'
About Einarsson v Iceland: Rape Allegations as Defamation?
16th January 2018
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This post discusses rape (and sexual violence) allegations, in light of a recent case which I wrote about.

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A short piece I wrote before Christmas got published a few days ago. It’s on the Oxford Human Rights Hub Blog, and it’s a ‘case comment’, which means it is short and mostly about the facts and law of the case. There is little space for analysis. Here, I want to write a bit more about what didn’t fit into that piece, with less legal detail.

Summary: What Happened

An Icelandic guy – Egill Einarsson (the name he uses is ‘Gillz’) – had been accused of rape and sexual violence by two women (for two separate incidents). The police/prosecutor had investigated, but decided there was not enough evidence to take it to prosecution. I don’t know exactly how the Icelandic system works, but if it’s anything like ours, then there needs to be good enough evidence before a case is taken to court. Because there was presumably alcohol, possibly drugs, and maybe non-standard sex involved, and because it is just their words against his, they decided it was insufficient evidence. It doesn’t fit the ‘typical’ narrative of sexual assault (which is NOT the most common one but is the most pervasive narrative), because the women agreed to go back to his house and to do some sex things with him, but claim he pushed beyond what they had agreed to.

Einarsson is some sort of celebrity, I guess similar to Russell Brand and Dapper Laughs, who is a musician, bodybuilder, writer and media personality. He has said some horrible things against women in the past, against feminists and women in general. After the prosecutions were dropped, he gave a public interview about his experiences. Of course, there was a backlash.

One such backlash came from a person – just a regular person, a student at the time – who uploaded a photo to their instagram. The photo was the cover of the magazine which published the interview, but the person had added a comment saying ‘fuck you rapist bastard’. The following day, an online gossip magazine discussed the interview and backlash and used this photo, plucked somehow from his instagram, in their online article.

The Court Decisions

Einarsson sued this person for defamation. Defamation is a clash between freedom of expression (calling someone a rapist) and the right to privacy (via not being called bad things in public), so the court (and society and politics) have to strike a balance between these. The Icelandic courts assessed it and decided that it was not defamation. He was a celebrity, had made bad comments himself, was publicly discussing the allegations against him, so that means that more can be said about him. Also, because of the general public knowledge, they said that this wouldn’t be understood to mean ‘Einarsson has been convicted as a rapist’ but that ‘he did a rapey thing’.

Gillz obviously didn’t like this and took the case to the European Court of Human Rights. Legally, the argument is that Iceland (the state) failed to adequately protect his right to privacy, via not finding the instagram post to be defamation. But in essence, the Court was deciding whether it was defamation or not for striking the balance between expression and privacy.

The Court said that it was defamation and not ok. It was a surprising decision: the European Court is overruling the Icelandic courts to say that it knows better, not because they got the law wrong as such, but in how they struck the balance between it.

The Court isn’t the most clear in its reasoning, as is common for it, but the one thing they seem to focus on is that the case against Einarsson had been dropped. The Icelandic courts – and the general public following the issue – of course knew this. But the European Court thought that, given the case had been dropped, it isn’t ok to call the guy a rapist.

Analysis – Defamation Lawsuits

Implicit in this is the idea that someone can only be called a rapist if they have been convicted by a court of being a rapist. The Court’s reasoning is not open about this and doesn’t really explain it, but it seems to be what they are saying. This is pretty absurd.

The editor suggested that I shouldn’t say that Gillz is more likely than not to be a rapist, because only around 10% of rape allegations are false (which is no different to other allegations), so if someone has reported him to the police then he probably is a rapist. Innocent until proven guilty is an ideal principle, but at the same time, western liberal states and societies have fallen very far short on adequately protecting women from sexual violence from men. Using the public media sphere or the social sphere (via ‘private’ disclosures to the social group or workplace) to hold the perpetrators to account and get some sort of justice is a fair response, in this situation.

The #metoo campaign, Weinstein and other Hollywood revelations, plus numerous isolated incidents show the importance of public discussion – and allegations – of sexual violence. Yet this Court case, without even discussing this aspect of it, decides that it is defamation to call a probable-rapist a rapist.

This isn’t limited to people commenting on someone else, but includes those who have been subjected to sexual violence and make allegations. Many potential perpetrators have responded to allegations against them by suing the person making them for defamation. Sometimes it might be a false allegation, but in many situations this is a tactic to try to silence them, by crushing them with an expensive and difficult defamation lawsuit. Much like President Donald Trump tried to get lawyers to stop a book he didn’t like being published.

The criminal justice system often fails in another way: settlements out of court. The perpetrator can essentially pay the person to shut up about it, drop the case and not talk about it. This is what has happened to a great many allegations of sexual violence, especially in the USA, where (again) Donald Trump has done this a handful of times. If someone has settled out of court, not admitted they committed a crime and not been found guilty by a court, does that mean they can’t be called a rapist?

The leading case on this in the UK is McAlpine v Bercow from 2013. There had been media investigations into paedophile cover-ups in Parliament (which is quite likely something that happened, not just at the BBC but in other ways, it’s pretty dodgy). The media investigation did not name McAlpine, but gave a description of a senior figure with particular connections that could be figured out to be him. It turned out they were probably wrong on this. A lot of people had been discussing, especially on Twitter, that McAlpine could be this person. Bercow tweeted saying ‘I wonder why Lord McAlpine is trending hmm?’ (slight paraphrase) Shortly after, once it was established that McAlpine wasn’t a paedophile (or at least, there wasn’t much evidence of it), he sued her and a handful of others who tweeted about it for defamation.

I think what Bercow said is probably fair game: she isn’t directly alleging but pointing people towards a load of allegations which are flying around. Of course she is taking some responsibility for it, but she is pointing to a leading media investigation which was making the allegations. However, the UK courts said that it was defamation.

Given that this is how the UK tends to treat it, the Einarsson ruling from the European Court increases the protection which perpetrators have via defamation law. That’s worrying.

Analysis – Social Media

As well as the ‘rape allegations when not found guilty’ aspect, another aspect is the way in which people use social media (which again, the Court did not really discuss).

A private (ie non-celebrity) instagram user, who had 102 followers at the time but a public profile, put up an instagram post which called someone a rapist. They got sued for defamation. Their post only got widely seen because a media outlet picked up on it, and as much media reporting now is, used what people said on social media as part of a news story.

All of the courts asked the legal question of: is it a publication into the public domain. And they said it was, because any member of the public could see it. Yet most people do not see posting on instagram as a public-ation.

The changing technology of internet, social media and possibility of connection radically alters notions of society and the idea of public or private. It used to be quite easy to distinguish who is in earshot or can read something. Talking at the pub is usually a private conversation, hanging a sign out your window is a public one. Yet with social media, it is often treated like a private place despite its public accessibility.

Of course, social media is customisable: what you see depends on your privacy settings and who you follow. Instagram can be made private using that setting, and only those you allow to follow you can see it. With twitter, everything you tweet is public, but again only seen by those who follow you. Someone with a handful of followers can, however, have their comment seen by the world if it gets retweeted.

For a piece of coursework about social media and democracy I looked into research on this, which found that most people viewed most social media spaces as private spaces, despite public accessibility. Essentially, the public/private distinction which we used to have is no longer useful. Instead, sensitivity – such as what sort of comment is within acceptable limits of not defaming someone – should be done on a contextual basis, which is not what the courts did.

(The research also theorised that although internet and connective technologies could be used to build a strong ‘public’ or societal sphere, because of dominant neoliberal and individualising culture, we have instead turned what could be a ‘public’ sphere into a ‘private’ sphere. The way most people use twitter is more like people commenting on a TV show to friends while at the pub, instead of like citizens meeting in a public forum to discuss politics, though there is some of the latter)

So that’s another interesting aspect.

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