This is a summary and review of the article Should states have a legal right to reputation? Applying the rationales of defamation law to the international arena by Elad Peled. It appears in the Brooklyn Journal of International Law (35 Brooklyn J. Int'l L. 107).
In this law review article, Elad Peled explores the possibility of an internationally recognized right to state reputation. Despite the mouthful, the basic idea is pretty simple. Most individuals have limited knowledge of foreign states, and foreign affairs (pg. 11). Thus, the media significantly shapes the political positions a person holds in the arena of foreign policy (pg. 7). Also, public opinion of global actors may help shape a responsive government’s foreign policy (pg. 11). Indeed, “[s]ince the global phenomenon of democratization has increased governments' attention to their citizens' views regarding foreign policies, mass media and public opinion have come to play major roles in international politics” (pg. 7). As such, the perception of a foreign state impacts the choices of state’s officials regarding interactions with that foreign state (pg. 6).
Peled goes on to argue that states honor their international commitments because non-compliance to international norms and standards is damaging to their economic and foreign policy well being, as it would deter global actors from interacting with them (pg. 7, 9). But currently international publics may be wrongly informed of the compliance of states to such standards. “[D]efamatory falsehoods reduce states' incentives to comply with international law, and render global decision-making less informed and, consequently, less efficient” (pg. 2). Thus, a statutory mechanism protecting state reputation would increase the efficiency of foreign policy and global politics (pg. 8).
Peled cites an international jurisprudential consensus on a crucial aspect of this possibility, stating, “…almost every state in the world has a civil or criminal law protecting individual and institutional reputation against defamation…” (pg. 2). Just as in other markets, market failures occur in the marketplace of ideas, and as such many feel regulation is appropriate. Peled assures us that this structure would only protect against factually inaccurate assertions of concrete events, and thus would not threaten damaging opinion or political rivals of any given state for mere dissent (pg. 3). Ultimately, Peled argues that such regulation is only justified if the benefits outweigh the costs, and that information must be reliably accurate in order to be valuable (pg. 10, 15).
While it is important that such limitations on free speech remain restrained, this limitation may cover too few utterances to be effective and produce benefits sufficient to outweigh the costs. As many know from consuming media, there is a fine line between an assertion of fact and a mere opinion. For example, according to the National Park Service, “more than 110,000 men, women, and children” of Japanese decent were interned during World War II (http://www.nps.gov/manz/index.htm). What if a Japanese news agency were to report that “we believe that 150,000 people” were interned? Would it be actionable under this proposal? What if the news agency said “some have suggested that nearly 200,000” were interned? Would that be actionable? It seems unlikely, as neither of these statements present “inaccurate statements of fact depicting concrete events”, but merely statements of opinion (pg. 3). The amount of energy expended, political compromises hatched and sovereignty questions raised may not be worth outlawing such a narrow range of statements.
Moreover, I feel that one must question the sufficiency of this mechanism which aims to limit harm to states based on such false information. While reputation may be ultimately protected, truth may not. Inaccuracies which hurt a state would be punished, but inaccuracies which help a state would not. Thus, by bringing to international attention one type of falsity, this structure may implicitly give credence to an arguably congruent falsity: propaganda. However, we all learn in public diplomacy that positive news often simply is not news. So perhaps this may not have a much of a reputational impact as damaging news, but I feel it still would likely remain an important factor for consideration.
I find the possibility of protecting state reputation to be a fascinating idea. And while the reputation of a state is very important, a statutory structure such as this may not currently be the most efficient approach. The global arena is still considerable governed by anarchy, though the United Nations and other NGOs are trending our world into a more structured future. Until that world is reached, an institution charged with protecting state reputation will likely gain little response from states with inflexible definitions of sovereignty. Presently, it seems the best way to protect and maintain state reputation is the use of strategic public diplomacy, as there is still unrealized potential there.
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