a) It’s astonishing how quickly users create content (in casu: hoaxes) and how fast this gets noticed by large mainstream media (search for dragan dabic website on Google News). Karadzic was arrested no more than 40 hours ago.

b) Hoaxes can be uncovered very quickly by other users.

c) The use of the Whois Privacy Protection Service by the domain name registrant was useless: First, the whois entry still shows the date of the last update — July 22nd; second, the fact that the registrant used that service kind of reverses the burden of proof that the website isn’t a hoax.

d) It might have been profitable for the hoaxer to add Google ads to the website.

(They’ve been publishing content over their own website for a while now.)

Given the fact that Swiss TV viewers (including me) pay a mandatory fee of 400 dollars a year, I can only welcome this added service.

Looking forward to Jusletter 2.0!

… is an expression of a strong attraction or repulsion to the behavior being evaluated,

seems to match this proposition fairly well. His argument concerning moral judgments by the courts (which otherwise would be highly problematic, as they raise the countermajoritarian problem of constitutional rights) can thus be interpreted as a normative statement that criminal law ought to sanction the evocation of certain (rather strong) emotions. My previous research in this respect focused on religious emotions and the boundaries set to the law when it comes to protecting them. Here, we are dealing with disgust–an emotion more ambivalent than it seems.

I suppose that disgust has important social functions, and I’m confident that a social psychologist could name at least a handful of them. Also, disgusting things and acts have some attraction to human beings, including the one who’s writing these lines–notably on a very disgusting case. The more beastly a murder is, the more extensive is the media coverage, and the more intense the interest of many of us. However, I would distinguish between “push” and “pull” disgust: By “pull” disgust I mean that an individual may seek his or her “does of disgust”, for instance by watching a horror movie or local news in the U.S. “Push” disgust is aroused against the will of the subject, as in the example of the cancer images on Canadian cigarette packets. The latter example also implies that even “push” disgust isn’t necessarily condemnable, but may well be utilized as a policy instrument, although–if I remember well–the effects of the images on smoking habits are at least disputed.

The ambivalent nature of disgust, among others, also explains why the law is–and ought to be–very reluctant to forbid the dissemination of “disgusting” information. (In Switzerland, criminal law, apart from protecting minors, only prohibits certain forms of “hard” pornography, Art. 197, and extreme depictions of violence, Art. 135.)

In the case of the cannibal of Rotenburg, a great deal of disgust could have been avoided by banning all reporting on the case–which is something that no serious legal mind would demand. But then, why should the cannibal be punished more severely?

(Note that the legal question is not whether cannibalism should be punishable at all. Rather, we must compare the Rotenburg case to a case where somebody with limited power of judgment asks another person, a sadist, to be killed, and the sadist willingly does it. In that case, the perpetrator would perhaps face between five and fifteen years of inprisonment.)

My personal opinion is that disgust is not a good reason to punish a cannibal more severely, and in the next post I will perform the ritual of interpreting Art. 111 (Willful Killing) and 112 (Murder) of the Swiss criminal code with the means of the canon mentioned in part 2 of this series. I will come to the conclusion that my view corresponds with the duly construed meaning of these provisions :-) .

I will also argue that the prohibition to desecrate human corpses (Art. 262) has an emotional rationale, but not as regards disgust.

Urs: “The internet has a memory like an elephant.”

Yep.

1. Jim Moore’s video on YouTube.
2. 10,000+ articles/posts on the story that will eventually go the way of everything on the web–to the Internet Archive.
3. A loss of reputation on the part of Viacom (allbeit certainly limited both in terms of time and audience).

I’m not quite sure whether Viacom was aware of this reputation risk when it decided to send cease-and-desist letters to Youtube. But the big echo this case has caused hopefully will change that and thus lead to a more targeted use of cease-and-desist letters under the DMCA. And the risk isn’t likely to decrease in the future, as the community is organizing around takedowns.

By the way, it would be interesting to know which risk a corporate compliance risk manager would quantify as higher: the risk of having to pay compensation under DMCA § 512(f) (see latter part of this post by J.P.) or the reputation risk associated with sending unjustified cease-and-desist letters.

In the paper, I argue that it is better to strengthen social norms through appropriate procedures than to replace them by substantive rules aimed at protecting emotions.

In Switzerland, Article 261 of the Criminal Code states: “Whosoever openly and invidiously insults or derides the beliefs of others in matters of faith, in particular the belief in God, […], will be subject to fine or a prison sentence of up to 6 months.” Similar provisions can be found in the laws of many other countries on the European continent. Their purpose is to protect public order by shielding the faithful from undue encroachment.

The nature of emotions, and especially the nature of religious sentiments, sets boundaries to the protection of emotions via substantive law: On the one hand, a legal rule aiming to protect emotions cannot—and ought not to—be entirely subjective; on the other hand, objectifying emotions necessarily involves their valuation. Yet, emotions are protected by law to a certain extent precisely because they are subjective and inaccessible to the valuation of others, be it another person or the judiciary. Therefore, objectifying emotions to a certain extent contradicts the very purpose of their legal protection.

A year ago, the publication of a dozen cartoons of the prophet Mohammed by a Danish newspaper caused a huge stir in Western Europe and in the Middle East, and to a lesser extent, as I understand, also in North America. In the light of Article 261 of the Criminal Code, the publication of the cartoons is not punishable, despite the fact that many Muslims, and by far not only the zealots, felt deeply offended by them. Obviously, the sensitivity of members of different religions of the world as to the ridiculing of the founders of their religion greatly varies.

The law, in contrast, cannot take that into consideration for various reasons, and protect each belief in a different manner, according to their degree of sensitivity. As a consequence, the protection of religious sentiments does not depend on the intensity of an encroachment, but rather—and arguably to a high degree—on the cultural background of the judiciary. In these cases, the law becomes ineffective, as it cannot fulfill its function of ensuring public order anymore.

In my paper I suggest that Article 261 should be repealed.

Instead, I argue that the provision should be replaced by a procedural mechanism which to some extent parallels existing concepts of criminal mediation, and which I chose to name a palaver*: Whoever nowadays would file a criminal complaint under Article 261 of the Criminal Code should be enabled to initiate a legal proceeding with the author of the statement concerned, in which he or she can confront that person and discuss the issue. (I am skipping the details of the procedure.)

The palaver could lead to either an apology or heated argument, ore something in between, depending on the good faith of the parties. Either result is a good one because in both cases, negative emotions caused by the concerned statement can be effectively canalized within the procedure and thus absorbed. As media coverage of the palaver can be expected particularly in cases where an offensive statement and the reactions thereto have received high publicity, the palaver will also give those people some satisfaction who do not take part in the proceeding but were nevertheless offended.

Last but not least, the remedy hopefully will have a preventive effect: Whoever is going to make a defamatory statement on religious matters in the public, i.e. via more or less unidirectional media, has the prospect of being confronted with his or her statements in a face to face situation. Since most humans tend to be more moderate and tactful in the presence of a person they know they might offend, odds are that they behave the same way when they speak or write in public. In other words, odds are that the remedy I suggest leverages the social norms governing face to face conversations in a way that they are respected when people speak through the media, instead of overriding them, as the substantive legal norm of Art. 261 of the Criminal Code does.

*) After a proposition by J.N. Druey. Palavers are known as important dispute resolution mechanisms in archaic societies.
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Update: Following a suggestion by my friend and colleague James Thurman, I replaced “religious emotions” by the more precise circumscription of the uncircumscribable, “religious sentiments.”