20 September 2005

"I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory?

The perennial issue about whether it’s defamatory to state or imply that someone is gay has come up again – this time in the context of tabulating the number of queer MPs in Parliament. See David Farrar: Gay MPs I prepared a paper on this issue while I was studying at UBC a couple of years ago: "I'm not gay - not that there's anything wrong with that!": Are unwanted imputations of gayness defamatory? It’s a little dated now and needs some revision. In particular, the Rivkin case went to the High Court of Australia - John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50. While it was decided on other technical grounds, Justice Kirby (one of the few out gay judges) made the following comment:
The homosexual intercourse imputations: In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory. The introduction of Mr Rivkin's postulated sexual activity with Mr Wood was not entirely innocent, given the context. Mr Rivkin was described as a married man with five children who, by implication, was leading a secret life. This hypothesis was confirmed by the reference to his "high degree of interest in good looking young men" and by his provision to Mr Wood (who arguably filled the description) of a car, clothes, furniture and apartment, by clear implication in exchange for sexual favours. In the context of an article describing two murder hypotheses for the death of the deceased, one of which postulated the engagement of a "contract killer", the suggestion of homosexual activity between Mr Rivkin and Mr Wood in SMH1 went beyond an imputation of marital dishonesty or adulterous promiscuity on Mr Rivkin's part. In the context, such a sexual liaison, inevitably introduced into the matter complained of, as it would be read by the ordinary reasonable reader, the imputation as pleaded.
I’m revising the article for a Sexuality and Citizenship Symposium that a couple of us at the Law School are organising in November this year – with a view to publishing the papers next year. Any comments therefore welcomed!

9 September 2005

Citation of Wikipedia

I thought people might be interested in a Faculty email thread discussing the appropriateness of citing Wikipedia in Law School essays and research papers. POSTSCRIPT: I should add, the issue has not yet been formally resolved by the adoption of a policy and remains an issue of individual academic judgment. (And, of course, I should also add that the views expressed below on the propriety or otherwise of citing Wikipedia are not necessarily to views of the Faculty as a whole!) -----Original Message----- From: [Colleague 1] Sent: Tuesday, 6 September 2005 10:16 a.m. To: _All Law Faculty Staff Subject: Law school policy issue... Do we have a position on the citation of Wikipedia in research papers? [Colleague 1] -----Original Message----- From: [Colleague 2] Sent: Tue 9/6/2005 10:26 AM To: _All Law Faculty Staff Cc: Subject: RE: Law school policy issue... It should be utterly forbidden [Colleague 2] -----Original Message----- From: [Colleague 3] Sent: Tuesday, 6 September 2005 10:43 am To: _All Law Faculty Staff Subject: RE: Law school policy issue... I have had a long conversation with a student who cited it in a property opinion about the complete inappropriateness of it. I told him to consider the "Supreme Court of New Zealand test". If you can cite it to them, you can cite it to me. So other things you can't cite to me are my lectures!! -----Original Message----- From: Dean Knight Sent: Tuesday, 6 September 2005 2:07 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... If you receive any citations, I would simply refer the students to this page on Wikipedia: http://en.wikipedia.org/wiki/Citation_of_Wikipedia #Citation_of_Wikipedia_in_Law_School_essays_and_research_papers Dean -----Original Message----- From: [Colleague 4] Sent: Tuesday, 6 September 2005 4:20 pm To: Dean Knight Cc: _All Law Faculty Staff Subject: Re: Law school policy issue... Dean, When did the faculty approve this sentence from the wikipedia page" "For example, the Victoria University of Wellington, Faculty of Law does not permit the citation of Wikipedia in student essays or research papers." In my ... seminar, I let students refer their readers to the wikipedia for background information. Suppose the student is working on security issues and wants to refer to the Diffie Hellman key exchange, I see no reason why they shouldn't be able to use and quote the material in the wikipedia. I haven't seen any comparable explanation in a journal article or court decision. I doubt whether our library's hardcopy collection provides any sources. What do you think? [Colleague 4] -----Original Message----- From: Dean Knight Sent: Tuesday, 6 September 2005 5:01 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... [Colleague 4] and others... The Wikipedia page and reference to it was primarily intended for amusement. However, it does illustrate some of the issues regarding reliance on Wikipedia as reference material. For those of you for whom the penny hasn't yet dropped, I created the page [en.wikipedia.org/wiki/Citation_of_Wikipedia #Citation_of_Wikipedia_in_Law_School_essays_and_research_papers] about half an hour before I circulated the link to it. Wikipedia is an open-source encyclopaedia in which anyone can create or edit pages. The community self-moderates its content. For example, the page I created is presented being commented on and voted on for deletion for differing reasons, namely: - it's "original research" (ie, I made it all up) - "redirect", ie, there's already a more appropriate article elsewhere on Wikipedia. If you want to see or contribute to the discussion, see http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion /Citation_of_Wikipedia. Yes, the page is inaccurate because it presently asserts we have a policy on the citation of Wikipedia, which we do not. Hopefully, the Wikipedia processes will ensure this "error" is corrected in the page, amongst other ways, by someone editing this sentence out (note my recent subtle amendment too…). If it doesn't I will remove the offending sentence in a day or so… Personally, like [Colleague 4], I think it’s a great resource and it does seem to fill the gap in some existing resources, particularly with very current events or developments. But there are some obvious problems with its reliability; many of these are recorded by Wikipedia itself: http://en.wikipedia.org/wiki/Wikipedia:Why_Wikipedia_is_not_so_great. If we need to develop some guidance on its citation though (assuming it can't be deal with under the rubric of general reliability and judgement), I think as a rule of thumb it presently would fail the reliability test in s42 of the Evidence Act for use in Court proceedings and accordingly is inappropriate to be cited in legal essays and research papers in substitution for other authoritative works. But, I guess, there may be some (very?) rare cases in which it might still be appropriate to be relied on for citation purposes (although generally the articles will disclose more reliable primary sources anyways?). Dean PS As an aside, there are some interesting and useful legal articles being created. See, for example, notable cases decided Canadian Supreme Court (http://en.wikipedia.org/wiki/Supreme_court_of_canada_cases), US Supreme Court (http://en.wikipedia.org/wiki/US_Supreme_Court_cases) and House of Lords (http://en.wikipedia.org/wiki/House_of_lords_cases) - some of the US and Canadian ones have extensive summaries, see http://en.wikipedia.org/wiki/Chaoulli_v._Quebec_(Attorney_General) PPS Might contributions to a page count towards the PBRF?!!? -----Original Message----- From: Dean Knight Sent: Wednesday, 7 September 2005 12:57 pm To: _All Law Faculty Staff Subject: RE: Law school policy issue... A couple of more points to add (sorry to the non-“coneheads”): 1. I have presently (temporarily?) lost my battle with the Wiki community to maintain the page (but I am still fighting to have it restored: http://en.wikipedia.org/wiki/Wikipedia:Votes_for_undeletion #Citation_of_Wikipedia.23Citation_of_Wikipedia_in_ Law_School_essays_and_research_papers) If you still want to see the original page, you can see it in the page history (scroll down below the marked up changes): http://en.wikipedia.org/w/index.php?title=Citation_of_Wikipedia&diff=22673606&oldid=22665573 2. I have now discovered at least a few cases in which Wikipedia was referred to in the Court’s decision; see, for example: - Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (2004) (Supreme Court of Michigan) Hunt had no control over her locomotive skills and was prone to sliding about uncontrollably and, therefore, she was at risk for suffocation by "positional asphyxia." [n2] … [n2] HN1"Positional asphyxia refers" to suffocation that results when someone's position prevents them from breathing properly. See <> (accessed July 27, 2004). - Bourgeois v Peters 387 F.3d 1303 (2004) (United States Court Of Appeals) We also reject the notion that the Department of Homeland Security's threat advisory level somehow justifies these searches. Although the threat level was "elevated" at the time of the protest, "to date, the threat level has stood at yellow (elevated) for the majority of its time in existence. It has been raised to orange (high) six times." Wikipedia, Homeland Security Advisory System, available at http://en.wikipedia.org/wiki/Department_of_Homeland_Security_Advisory_System (last referenced Aug. 16, 2004). Given that we have been on "yellow alert" for over two and a half years now, we cannot consider this a particularly exceptional condition that warrants curtailment of constitutional rights. We cannot simply suspend or restrict civil liberties until the War on Terror is over, because the War on Terror is unlikely ever to be truly over. September 11, 2001, already a day of immeasurable tragedy, cannot be the day liberty perished in this country. Furthermore, a system that gave the federal government the power to determine the range of constitutionally permissible searches simply by raising or lowering the nation's threat advisory system would allow the restrictions of the Fourth Amendment to be circumvented too easily. Consequently, the "elevated" alert status does not aid the City's case.” - Harrisson v Alan [2005] 2 SLR 387 (Singapore High Court): 37 As briefly adverted to earlier (see [32] above), the defendants' reliance on the mandate for Option 3 purportedly sanctioned by the March 2004 SGM is flawed. The 93 votes in favour of Option 3 cannot constitute a simple majority of members present and voting. Shackleton on the Law and Practice of Meetings (Sweet & Maxwell, 9th Ed, 1997) at para 7-27 defines "simple majority" as a situation where "a motion is carried by the mere fact that more votes are cast for than against". I find the following illustration of this definition in an online encyclopaedia (at (accessed 3 March 2005)) illuminating: A simple majority is the most common requirement in voting for a measure to pass, especially in deliberative bodies and small organizations. It means that, of those who cast a vote for or against a proposition or candidate, more than half of the votes is necessary for election. As an example, let's consider three propositions: A, B, and C, that are proposed in a club of 100 members. In order for a proposition to be successful, a simple majority must agree to it. The results of the election are: [middot] 20 votes for proposition A [middot] 40 votes for proposition B [middot] 10 votes for proposition C [middot] 10 votes are blank Since there are more votes for B than there are votes for both A and C combined, B has the simple majority and so wins. Notice that the abstentions and non-voters do not affect a simple majority process, since they neither support nor oppose. They only affect an absolute majority. In an election for president in the same club having candidates Jim, Bob, Sally, and Bridget, the results are as follows: [middot] 20 votes for Jim [middot] 20 votes for Bob [middot] 40 votes for Sally [middot] 2 votes for Bridget In this election, no one has more votes than the combined votes of the opponents, so no one wins. In a case like this, most systems would either adopt a plurality rule or would have a second runoff election. Tie votes do not meet simple majority and are classified as failures. [emphasis added] (see also Black's Law Dictionary (8th Ed, 2004) at p 975). - There’s also another couple of cases of Canadian cases in which it was referred to: Bajraktaraj v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 293 “the quality of the sources relied upon by the applicant, including … a downloaded extract from an on-line encyclopaedia, "Wikipedia," that provided no references for its content, did not impress”; and Almrei v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 437 where an article was included in the bundle of material relied on by an immigration minister delegate when determining a person was a terrorist and a danger to the security of Canada! Interesting to see judicial reference to it, although I suspect it still does not undermine the “generally discouraged as a substitute for reliable sources” theme which seemed to come through in our threads. Dean

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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