by Theodore Dalrymple
A friend of mine, an academic researcher in what at least 99.9 per cent of the population would find an arcane area of human knowledge, recently brought to my attention the form he was obliged to sign in order for a particular learned journal (owned by a publishing conglomerate) to agree to publish a review article that he had written.
It was an extraordinary form, six pages long, and so one-sided in the contractual obligations it imposed, or tried to impose, that I wondered whether any court would enforce it. Among other things, it demanded an absolute warranty that the article contained no defamatory material or misleading information, and that it contained nothing that could harm anyone.
The pledge he was being asked to make was absolute, not merely being to the best of the author’s knowledge and belief. Also he, the author, indemnified the publisher for any costs or damages arising from defamatory material or misleading material, or harm done by his article.
In putting his name to this document, he was assigning the copyright to the publisher forever—while presumably assuming liability forever.
It takes two to be misled or harmed by information. Indeed, people can be harmed even by information that is true if they misconstrue its import or implications; harmful information is presumably that which results in harm. The form aimed to make the author infinitely and indefinitely responsible for the consequences of his article, however remote those consequences.
Now the chances of a suit for defamation in an article such as my friend’s were minimal. Scientists may, like all other human beings, detest one another, and may want to do everything they can to ruin one another’s reputation or career; but when they try to do so (also not an unknown phenomenon), it isn’t by publishing defamatory material in a scientific article in a learned journal. They may denigrate a rival’s work in print, but it would usually be well within the bounds of fair comment, and would usually come in the form of rational if not necessarily correct argumentation. They do not usually allege, for example, that Scientist X has made up his results because he hopes that his shares in Corporation Y will rise greatly in value (though perhaps this is yet another phenomenon that is not entirely unknown, either).
I doubt whether any serious litigant, in the very unlikely event that one took action against the journal, would accept the publisher’s disavowal of liability. Although many litigants claim that they sue as a matter of principle, so that others may not suffer the harm done to them, I have met none who in practice was uninterested in the monetary compensation he stood to be awarded. People, or legal persons, are usually sued more according to their ability to pay than according to their strict responsibility for any harm done. You cannot, after all, get compensation out of an indigent any more than you can squeeze blood from a stone. And a publication cannot just wash its hands of its liability as if it were Pontius Pilate.
Why the form, then? The use of such documents seems to be increasingly common, particularly in America. While they protect no one and are probably meaningless, they nevertheless sow an atmosphere of threat and fear. Perhaps the publishers who use them are themselves acting from fear: their libel insurance will be invalid if they do not demand the signature of their authors attached to such a form, even if the form means nothing. What counts is the process itself, not any connection of that process to reality, let alone to what is right in itself. We live in a Kafka-esque world.
It is pointless for a solitary individual to kick against procedure. If he is fortunate enough to find an actual human being to whom he can protest, or even merely make enquiry of, he will be met by an expression such as, “It is our policy that.” Policy is as inexorable and unavoidable as the weather; it is under no single person’s control. Who decreed it or why is as hidden as the Twelfth Imam in Shia Islam. Everyone is only obeying orders.
When I sign my annual tax return, I am claiming that my answers are completely truthful and that I acknowledge that I am liable to legal prosecution they are found wanting—provided, of course, that any untruths be in my favor, not that of the tax authorities. But the fact is that the tax form I am signing is so complex that I do not fully understand it. I send a bundle of papers to my accountant and he returns the form duly filled out, which I then sign, on trust. I believe the papers I have sent him to be truthful, and I believe him to be an honest and competent man.
If I were examined in court about the veracity of my tax return, any competent advocate could quickly demonstrate that I hadn’t the faintest grasp of my tax affairs, and that I had sworn to what I could not possibly avow. In effect, I have perjured myself.
We pride ourselves on living in free societies, but I think that, more and more, that is not how we experience them. As our obligations weigh on us, we live in an atmosphere of fear— though not the kind that results from finding a snake under the bed. It is a miasma rather than focussed on any specific threat. It is composed of a thousand petty worries.
We fear to say anything much lest we give offense, and there are subjects that we avoid entirely. We commit innumerable passwords, codes and PIN numbers to memory lest we be swindled. Everywhere we go we are cajoled into safety. People now often say “Take care” to one another as they part, as if catastrophe were just round the corner for the unwary.
Only today, at a barber’s in France, I saw a notice to the effect that the use of razors was forbidden, as if every barber were a potential Sweeney Todd. If we travel, we spend hours taking security precautions against the rarest eventualities, while reluctantly half-acknowledging that they are necessary. We sign lengthy documents that we have not read and possibly could not understand if we did read them, but which might be used one day against us by faceless organizations. If we are professionals, we conform to procedures we know to be pointless but which it is too much trouble to protest against.
It is the formlessness of what is disagreeable in their lives, and the difficulty of proposing improvement, that angers people and makes them long for scapegoats or tangible enemies. They feel that there must be some central error or even plot that could explain their dissatisfactions, their lack of freedom—and this makes them susceptible to demagoguery, of which we have by no means seen the last gasp.
First published in the Library of Law and Liberty.
Dr Dalrymple: In a brief and plain-spoken message, you've identified concretely something profoundly and abstractly (yet viscerally) troubling. Excellent work.
I've read that it was fear of being accused of racism that prevented the police from acting swiftly against the grooming gangs in Britain. The absence of a First Amendment in many countries must be very intimidating for those who want to speak up.
Howard Nelson Nelson
The only thing we have to fear is cowardice itself.