Defamation or Freedom of Expression? Can Translators Share Bad Practices Info Online?

Tricus bully

We all know Mr. Chiosso as the bully in translation thanks to his accusation of “slenderer” (sic.) against Aurora Humarán, President of IAPTI, and threats against IAPTI members. If you don’t know what I’m talking about, you can read the article that started the whole thing here, Chiosso’s own rambling on the subject here or a coherent version on Kevin Lossner’s blog here or on NOPeanuts! here. In addition to drawing a lot of negative attention to himself and giving reasonable people (who can actually spell in English!) enough comedy materials to last for a lifetime of Chiosso-jokes, he has also raised an interesting question: Can translators share information about unethical business practices or abusive rates or contractual terms online without committing some form of defamation?

Mr. Chiosso’s insistence on turning this into a “slender” (sic.) case and threatening with unfounded legal action has sparked the question of the legality of such information sharing. As a lawyer with a somewhat dark sense of humor, I could not resist the temptation to both poke fun at Mr. Chiosso (because, let’s face it, he’s asking for it!) and to address the legal question at hand. The answer is simple: Yes! They absolutely can share information online, provided that what is being said is actually true and that they are in a Western Country. (I can’t speak for parts of the world with whose law I am unfamiliar.)

Here’s the thing, the Internet is not regulated at an international level, but freedom of expression is. In addition, most jurisdictions in the West still regulate defamation criminally (though there is an increasing tendency to eliminate said criminal regulation worldwide). Regardless of whether you are in a jurisdiction under the civil law or the common law tradition, for an action to constitute defamation (whether in the form of slander [i.e. spoken defamation] or libel [printed words or images] or other), any damage to the victim’s reputation resulting from that action must be unfounded or untrue.

So, if we went around saying that Mr. Chiosso offers submarket rates and tries to convince linguists to learn as they translate in order to pay them less, and that turned out to be a big fat lie, then we would be committing defamation. However, if there were any truth to that statement, then we would simply be exercising our freedom of expression; which as we all know, is a human right contained in pretty much every major human rights treaty on the planet. Similarly, if Mr. Chiosso went around saying that Ms. Humarán wrote the allegedly defamatory article in question and that turned out to be a lie on his part, then he would be commiting defamation against Ms. Humarán (see how the table turns in the second hypothetical scenario?).

But the issue doesn’t end there. Mr. Chiosso, like Ms. Humarán, happen to be located in Argentina, where international human rights law has been part of the Constitutional “block” since the last Constitutional Amendment in 1994, whereby freedom of expression is an especially protected right (for obvious historical reasons that date back to the last brutal dictatorship). Therefore, as per countless freedom of expression precedents in Argentina (which are not binding for lower courts, but still matter a great deal in litigation) and per several rulings of the United Nations Commission on Human Rights (in the case of Alex Adonis in the Philippines, for example), the criminalization of libel constitutes a violation of the right to freedom of expression under article 19 of the International Covenant on Civil and Political Rights.

In addition, under Argentine constitutional law (article 43 of the Constitution) no person (be it a public authority or private individual) can hinder, jeopardize or threaten the rights and guarantees recognized by the Constitution. What this means is that (unlike under American law, for example, which works a little differently), constitutional rights (like freedom of expression) cannot be hindered by private individuals. So even if Ms. Humarán had written the allegedly defamatory article in question (of which there is no evidence), Mr. Chiosso still wouldn’t be able to do a damn thing about it if the contents of the article turned out to be true, i.e. if he really did incur the actions described in the article.

Whether there is any truth to that is for him to know and the Law to find out, if he really does take this court. However, regardless of the potential outcome of the case, the question here is:

Can we share information about unethical business practices, scams, etc. online?

Absolutely! Provided that, to the best of our knowledge and belief, the information we are sharing is true.

How?

1) Avoid character assassination and personal attacks that could potentially constitute bad faith on your end.

2) Make sure you can back everything you are saying up with evidence.

3) If you can’t back it all up with evidence (because, for example, said evidence is not available or easily accessible to you), phrase everything as hypothetical or alleged.

4) Become familiar with freedom of expression laws in your country.

5) Become familiar with your Constitution.

Remember, it took wars and revolutions for the world to figure out that freedom of expression is a fundamental human right. Many brave men and women have given up their liberty and even lives to protect this valuable right. Don’t take it for granted! Honor the human rights heroes of yesterday and today! Exercise your rights and don’t let anyone bully you into withholding true and accurate information that could potentially help fellow translators all over the world avoid scammers and bottom feeders!

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17 thoughts on “Defamation or Freedom of Expression? Can Translators Share Bad Practices Info Online?

  1. I couldn’t agree with you more Paula! Freedom of expression is a basic human right in many countries. If someone is engaged in questionable business practices I have every right to criticize it and discuss it publicly. Because I care about the future of our industry and I love my profession. Thanks for sharing this great piece! It summarizes the whole situation perfectly! Luckily translators are a tight-knit community and we will always stand for our own. Companies like Manta has no place in our industry!

    Liked by 1 person

  2. TranslationCraft says:

    Another insightful and useful post, Paula, thank you!

    A lot of us in my regional T&I association, NETA (New England Translators Association), have been discussing the issues raised by Chiosso’s risible lawsuits against Aurora and his absurd (and hypocritical) threats to defame IAPTI members who refused to disavow support for her. In light of the more extreme attack on freedom of expression in Paris that horrified the world last week, some of us have been shocked to learn how many countries still have abusive defamation laws on the books and still prosecute defamation to silence criticism.

    Italy has some of the worst laws and, to this day, is still imprisoning journalists, along with their editors and publishers, for so-called defamation. It is also one of the countries that, perversely, does *not* necessarily recognize a defense based on the truthfulness of the contents of the allegedly defamatory material. Many in ternational organizations, including the UN, European Council, and NGOs like Article 19 have repeatedly called on Italy to bring its anti-defamation laws into accord with international human rights standards (see, for instance, http://www.article19.org/resources.php/resource/37374/en/italy:-defamation-must-be-decriminalised).

    Although my understanding of the situation is imperfect, it seems that in Italy and certain other Western countries that prosecute “crimes against honor,” even truth-based statements may be construed as defamation based on their effects, whether “general” (harm to reputation) or “specific” (economic damage). Here are a few relevant reports and articles I found about this shocking state of affairs:
    http://www.freemedia.at/ecpm/key-findings/defences-in-defamation-cases.html;
    http://www.cjr.org/behind_the_news/the_truth_is_no_defense.php?page=all

    Then again, in many countries, there seems to be a distinction made between journalistic reports, which are expected to adhere to certain standards of veracity (and which are therefore subject to defamation charges if these standards are violated), and opinion pieces, where no such factual basis is expected, allowing value judgments to be expressed without being subject to defamation charges. The post in TranslatorLeaks, which Chiosso claimed was authored by Humarán, was clearly an opinion piece: even the title gives it away as a non-journalist piece, “Orbe and Manta Translations: Walks, Quacks, & Swims Like a Scam.” Even though it contains lots of facts — and even if it didn’t — they are presented in the context of an opinion, and, as such, the piece cannot be prosecuted.

    The text of the latest lawsuit Chiosso filed in Argentina now admits that it cannot prove that Humarán wrote the allegedly defamatory post in TranslatorLeaks, but it argues that she *did* circulate a link to it through social media, making her guilty for publicizing something that led to reputational damage. This harks back to pre-digital laws that held publishers and owners of news media liable, as “intermediaries,” for printing defamatory matter that their journalists wrote. The Center for Democracy and Technology recently published a fascinating report on “Defamation in the Internet Age” addressing the urgent need for countries to update their anti-defamation laws in light of the cross-border nature of digital communication and the changing nature of “intermediaries” now that anyone can publish on the internet (see https://www.cdt.org/files/pdfs/Defamation-Internet-Age.pdf).

    Thanks for stimulating these further thoughts!

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    • Thank you so much for your comment, Claire! Extremely insightful, as usual! And I loved your links, especially the last one. A friend of mine from law school actually helped develop that report, he’s going to be thrilled to know people are actually reading it!

      You’re absolutely right about Italy being quite notorious as a freedom of speech violator, and it Italy is not the only one. Despite what is being said in the media after the Charlie Hebdo tragedy, France has also been known to heavily restrict free speech (usually for prioritizing other human rights, though). Recent examples in Latin America include Chile and Brazil. But all these cases (as you pointed out) involve the media and/or political figures.

      In Italy, this was all a direct result of the extreme power that Berlusconi had over the media, because he controlled a very large percentage of all media outlets. Despite that abuse of power in Italy, Article 21 of the Italian constitution is very similar to the American Bill of Rights in terms of freedom of speech and expression, and private individuals are still protected under the law if what they are saying is true (and preferably in writing vs. other formats after the whole Berlusconi-YouTube-Google case of 2012). That said, you can still get in trouble in Italy if you are not very careful.

      That’s why it is very important to always look at your local laws before sharing such information, to see how to effectively exercise your rights without committing defamation, especially if you’re country is a little backwards in terms of free speech. I’m happy to say that Argentina is not backwards in that regard at all. I’m a member of the Argentine Supreme Court’s Public Policies Forum and know for a fact that all our Supreme Court Justice are pro-free speech, free-press, etc. because they are deeply committed to the promotion of civil and political rights. Similarly, there is already a project in the Argentine Congress to modify the criminal code and wipe-out so-called “crimes against honor” from the Codes. Chiosso’s “she shared it, she’s defaming” argument would not stand up in an Argentine Court.

      Liked by 1 person

  3. TranslationCraft says:

    The T&I profession is so incredibly lucky to have someone like you, with your legal degree and role in initiatives like Argentina’s Public Policies Forum, as one of our own weighing in on issues like this!

    It’s reassuring to hear that Chiosso’s arguments won’t stand a chance in Argentina. Some colleagues, incredulous that anyone could file such nuisance lawsuits, have wondered whether the filing will be thrown out prima facie by the court clerk (as having no basis in law) or whether it may proceed to litigation. If the latter, then, even if Humaran and IAPTI are guaranteed to win, Chiosso’s harassment lawsuits will have succeeded in wasting IAPTI/Humaran’s money and time. What do you think?
    –Catherine Howard

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    • Thanks, Catherine! That’s very nice of you!

      I think it would be a huge waste of money and time, not just for Aurora and IAPTI, but also for the Argentine State. Sometimes we forget that lawsuits cost the State tens of thousands of dollars (or pesos in Argentina) that come right of taxpayer pockets. That said, it would be flat out irresponsible of Chiosso to take this court, especially considering Argentina’s struggling economy. All this could easily and efficiently be solved through mediation.

      Liked by 1 person

  4. Interesting post – with so many translators sharing information about bad practice and scammers online, this comes handy.

    So basically, at least for western countries, you don’t risk much as long as you stick to facts?

    Like

  5. Thank you Paula !
    That brings a lot of light into many discussions we have in Brazil related to clients that do not pay and whether or not writing their names on our blogs to prevent other fellow interpreters to fall in their tricks is defamation. Thank you very much.

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  6. The words “based in XXX who shall remain nameless” spring to mind – ther are ways and means. I have heard about this risk before, but if Tripadvisor can do it why can’t translators? In fact why not have a translators’ version of Tripadvisor?

    Like

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