“How dramatically the digital world seems to have jumped way ahead of our institutions and the protections they offer to citizens.”
First published in the Ocean Road Magazine Summer 2023 Edition – check it out here.
At the end of the day, of all the proprietary assets we gather throughout a long lifetime of toil – in amongst the real estate, riches, toys and trinkets – the most precious of all is surely our own good standing and personal reputation. How our peers perceive us, and how our family and friends will remember us, are the critical and much-treasured essence of what we all strive for, and who we become.
Little wonder, then, that over the centuries our laws have enshrined strict safeguards to safely protect and defend our good name. As early as 1275, in the medieval reign of King Edward 1, the Statute of Westminster introduced the concept of criminal defamation into English Law. The offence of Scandalum Magnatum demanded that “henceforth none be so hardy to tell or publish any false news or tales, whereby discord or occasion of discord or slander may grow between the King and his people, or the great men of the Realm.”
By the beginning of the 16th century, the common law courts also began to develop civil action for slander, but meanwhile, the criminal offence of defamation remained as a punitive sanction against false news and scurrilous slander.
Even by the year 1899, when Queensland legislators authored the state’s Criminal Code, the offence of criminal defamation was included. And despite the many amendments and purported reforms over the decades since then, the offence of criminal defamation survives in Queensland Law. It carries a maximum penalty of three years imprisonment.
Meanwhile, as the power of newspapers grew, criminal defamation increasingly came under attack in Western democracies. Outraged journalists argued it served as a dangerous restraint on free speech and, when the UK parliament finally abolished it altogether in 2010, the media and civil rights groups lauded the move as a long-overdue victory for the right to freedom of expression.
But, several years later, in 2014, a curious case concerning allegations of a monstrous Satanic Cult, raping and murdering children in the leafy, up-market London suburb of Hampstead, changed everything. In its wake, many UK commentators were suddenly questioning whether the time may indeed have come to bring back the offence of criminal defamation.
It all began when two young children, aged 8 and 9 respectively – who were the subject of a custody dispute between their estranged parents – sensationally accused their father of running a devil-worshipping paedophile ring out of the local primary school.
In the process, they expressly named roughly 175 parents, teachers and religious staff, describing in lurid chapter and verse their demonic abuse on the school and church grounds, assuring all who would listen that if police investigated they would quickly find “dead babies” buried there.
But when Scotland Yard was in fact called in, and police ultimately found absolutely no evidence whatsoever to back up the awful assertions, the children recanted, revealing the disturbing truth that they had been bullied into making their outrageous claims by their mother and her new boyfriend.
To counter this latest development, the children’s mother enlisted two activists to help with her custody battle. One of them launched an online campaign that quickly saw the Satanist story explode into an international conspiracy theory, and the other uploaded the children’s original police interview – in which they first made their untrue allegations – along with a comprehensive list of the names and addresses of the innocent parents and staff who were wrongly accused. As a result, their details were viewed by millions across the world, which soon saw them harassed and targeted with death threats and online abuse, much of which continued for years. One of the activists even published the photograph of a nine-year-old schoolmate of the children, describing her as “the star of a sex show.”
Meanwhile, the school and church grounds were suddenly besieged by mobs of conspiracists angrily screaming “Paedophile!” Alarmed parents looked at moving house and home-schooling their kids to shield them from all the lunacy, while their businesses were being destroyed by a torrid online onslaught on their good name.
When the matter finally came before the High Court in March 2015, Mrs Justice Pauffley dismissed the children’s claims as utterly baseless, ruling that they had been forced to fabricate the allegations by their mother and her new partner, and describing the couple’s tactics as “torture.” But none of that tempered the ongoing online abuse.
Meanwhile, no charges were laid against anyone for having published the lies, and none have been laid in the many years since.
In documenting the outrageous events of the Hampstead case, in a recent podcast entitled Hoaxed, former barrister turned investigative journalist, Alexi Mostrous, observed how dramatically the digital world seems to have jumped way ahead of our institutions and the protections they offer to citizens. “The accountability we see in the physical world is not transferred to the digital world,” he recently told the Guardian Newspaper. “There’s a gap.”
Perhaps, few sensible people would disagree. In the eight years since Hampstead, the world has endured crazy worldwide conspiracy theories, such as Pizzagate and QAnon, and the disturbing rise and rise of widespread hate speech and vilification on social media, with apparently little, if any true account taken.
Some are now starting to ask whether governments’ apparent inability to regulate this dangerous and ultimately damaging trend may mean the offence of criminal defamation still has a valuable role to play in ordering our online and offline existence.
Chris Nyst, Lawyer, Novelist and Film Maker