Criminal Codex

[Cormac]

Again, civil cases between a citizen plaintiff and citizen defendant are unconstitutional. Aside from being unconstitutional, I'm strongly against the number of frivolous suits and the culture they would create that would result from allowing citizens to sue other citizens.

I'm also against having criminal penalties for civil cases. If a case has criminal penalties it should be a crime, otherwise it shouldn't be dealt with by our justice system at all. And given there are no practical "damages" that could be imposed other than the penalties prescribed for criminal offenses, the only penalties we could have for civil cases would be criminal penalties.

That said, you've made a compelling argument against the inclusion of Defamation in this legislation. I'm willing to remove it, though I'll wait to hear from others.

[Theoden Sebastian]

I would suggest the inclusion of the following provision:

Under Section 2, High Crimes of Osiris

The addition of (e) "Espionage" is defined as the disclosure by an officer or agent of the Osiris, of confidential information relative to the interest or security of Osiris to a representative of a foreign region.

This is a higher crime and thus demands a higher penalty than "Unlawful Disclosure under Section 3. It is also specifically limited to an officer of the region, which is to be construed to mean any public official, officer or member of the armed forces, and those others who are deemed acting in an official capacity.

EDIT:

Oh and a clarification Cormac,

Again, civil cases between a citizen plaintiff and citizen defendant are unconstitutional.

Why are suits of such nature unconstitutional?

[Juris Lancaster]

Spoiler

I'm having this exact argument in TNP, so I'll edit up my post from there to here:

Libel, slander, and defamation are civil complaints not criminal ones. Civil complaints are handled entirely differently than criminal ones, and with good reason. Hell the UN Commission on Human Rights has outright said(in 2012) that criminalization of libel(and by extension, slander or defamation) is a violation of freedom of expression.

In the US, whose law I'm most familiar with, in order for successfully prove defamation(which we can use as a catch all term for defamation, libel, and slander), you must prove the statement to be false, that the statement caused harm, and that it was not researched properly. Furthermore, public officials and celebrities must prove that "actual malice" was a factor. That is to say that the person making the claim was absolutely aware that it was false, and said it anyway. Since we're all known to each other here on a semi-personal level(and almost all of us are public officials of some kind), that is the bar we have to clear.

Even with that hurdle to clear, there are several decent defenses recognized against claims of defamation.

Does a claim make no sense, or is it completely illogical? Doesn't matter. If a reasonable person might believe the claim, it's not defamation.

Is a claim reasonable, and made in good faith? Not defamation.

Is it simply an opinion? If so, it's not defamation.

Was it a claim made in anger, or is it obvious that it's just someone striking out? Not defamation.

And then, after it's all done and over with, if all of the hurdles are cleared, if it's certain that the defamation was made with the full knowledge of it's falsehood, with intent to harm the person defamed... civil penalties are enacted, not criminal ones. You penalize the defamer in such a way to make it too costly for her to do that again. You don't take away their rights to do it again. Because that would be limiting their free speech.

Slander, libel and defamation ARE protected free speech, and they should continue to be so. If we want to codify it as a civil complaint with criminal penalties, fine, but we need a separate code for civil complaints, that can cover the nuances(and there are many) of civil cases.

Yes, sure, you make valid points for US law. But, we are not legislating for the United States of America here, we are legislating for our Fraternal community here.

Secondly, this is not TNP. We should not be so strict on our laws as to have to point to real life references to make our case. Regardless of what the UN Commission on Human Rights said, or what the United States has for standards (and those are generally different, state per state), we are not here to talk about that.

We are here to talk about what would be good for this community. We have just come out of our occupation by the Empire. We need to ensure that our community and its culture are backed by good sound principles. One of those principles should be maturity. People shouldn't be able to parade around Osiris and spout lies to ruin other people.

Even then, to even acutely address your argument about a violation of rights.... Rights are not absolute. Since you used the United States, I refer you to Justice Oliver Wendell Holmes. Holmes laid out that all rights, even free speech, are not absolute. Per his example: If you shout "FIRE!" in a crowded theater, knowing full well there was no fire, and people rush out like mad and get hurt, you are responsible for their injury. I do not really see how this kind of speech should be protected. So, to insinuate that free speech is unlimited within the United States, doesn't really hold with what is actually true.

I believe people have a right to be protected from speech that is malicious, or speech that incites danger. I mean, if people are advocating the violent overthrow of our Order, would that be protected speech? If a nation mass telegrams others to endorse him, as a "delegate of the people", when clearly he is not the true and elected delegate, is that protected speech? If a player tells lies to the voting public, to ruin his opponents reputation, is that protected speech? If a player goes around, and ruins your good reputation by using deceit, is that protected speech?

Rights are great, rights are good. But, too much of a good thing is a bad thing. Rights, unlimited, doesn't exist in any place, and they should not exist here.

[Cormac]

Despite being on a leave of absence, I'm going to endeavor to keep up with legislation to which I've been actively contributing -- so, currently this and the Applications Administration Act -- for the purpose of moving it along.

I would suggest the inclusion of the following provision:

Under Section 2, High Crimes of Osiris

The addition of (e) "Espionage" is defined as the disclosure by an officer or agent of the Osiris, of confidential information relative to the interest or security of Osiris to a representative of a foreign region.

This is a higher crime and thus demands a higher penalty than "Unlawful Disclosure under Section 3. It is also specifically limited to an officer of the region, which is to be construed to mean any public official, officer or member of the armed forces, and those others who are deemed acting in an official capacity.

I think this is a sensible addition and will edit it in, though I may tweak that definition a bit. As it stands, the current wording would criminalize even lawful disclosure -- i.e., intelligence sharing -- which would negatively impact our treaty law. Take a look after I've edited and let me know if you have any concerns with the definition I end up using.

EDIT:

Oh and a clarification Cormac,

Again, civil cases between a citizen plaintiff and citizen defendant are unconstitutional.

Why are suits of such nature unconstitutional?

At this time, Section 5 of the State Code only empowers the Pschent to hear criminal trials or to hear civil cases brought by a citizen petitioner against the government. Civil cases between two citizens are not included, nor is any power that could be construed to include them, and this was intentional (at least on my part, as primary drafter).

If we want civil cases between citizens, an amendment would need to be made to the State Code that would empower the Pschent to hear such cases. I would urge us not to go down that road for the reasons I've already stated previously in this thread, but ultimately it's up to the Deshret and that's just my view.

---

Regarding Juris' argument, above, related to rights, I would also add that our own bill of rights does not include a right to free speech that could be construed as absolute. The language is "the right to freedom of speech and expression, subject to reasonable restrictions imposed by law which do not violate the spirit of this Code" (State Code of Osiris, Section 6.2(c)).

[Treize Dreizehn]

Ironically enough, the original argument I made(whose comments I adapted to this thread) were against someone who had claimed that shouting fire(or death threats) were somehow synonymous with defamation. Those are not classed as the same thing. Shouting fire in a crowded theater is not protected free speech because it risks genuine injury to persons. Death threats are harassment.

Some speech is not protected and no one has claimed otherwise here Juris. Schenck v. United States, the case which limited speech that risked public harm is even more specific, and this relates to the restrictions I've talked about on any defamation case it wasn't just shouting fire in a crowded theater, the Holmes opinion referred to "falsely shouting fire in a crowded theater."

I'm aware we're talking about the OFO and not the US. Still: the freedom to speak your mind is one which I support wholeheartedly. Defamation does not rise to a level of harm that requires its restriction unless it has passed into the realm of harassment, in which case it is will already be covered.

[Juris Lancaster]

Ironically enough, the original argument I made(whose comments I adapted to this thread) were against someone who had claimed that shouting fire(or death threats) were somehow synonymous with defamation. Those are not classed as the same thing. Shouting fire in a crowded theater is not protected free speech because it risks genuine injury to persons. Death threats are harassment.

Some speech is not protected and no one has claimed otherwise here Juris. Schenck v. United States, the case which limited speech that risked public harm is even more specific, and this relates to the restrictions I've talked about on any defamation case it wasn't just shouting fire in a crowded theater, the Holmes opinion referred to "falsely shouting fire in a crowded theater."

I'm aware we're talking about the OFO and not the US. Still: the freedom to speak your mind is one which I support wholeheartedly. Defamation does not rise to a level of harm that requires its restriction unless it has passed into the realm of harassment, in which case it is will already be covered.

I used the "FIRE!" example to illustrate that speech does indeed effect a community of people, while yes, it may not equate with defamation, it does illustrate the kind of atmosphere it brings to a region when people are spreading lies and rumors to harm others. I would hope that you would rather have Osiris be a place where such things don't happen...

While, like you, I support free and open speech, I also recognize that there are reasonable limits to such speech. I think that defamation is one of those reasonable limits. While we may not realize it, the individual and his community are bound together as one. What individuals do, depending on the action, harms the community. That is why crime exists. As a community, we say that these actions are not allowed for not only our individual safety, but the safety of the community.

And of course, the other thing too is that there is a difference between our law, and RL law. You talk about "genuine injury to persons", this is what things like defamation and harassment are within this universe. If somehow you can tell me that the false ruin of someone's reputation/credibility on NS isn't an injury, then we really have no basis for any NS law to begin with. A great majority of the regional laws that NS has produced promulgates in one way or another either protection of the region and its reputation/credibility or the protection of the individual and their reputation/credibility.

Further, i don't see why you are against defamation. If you say that Harassment is basicly defamation, and you agree that harassment should be a crime, why are you against defamation?

[Treize Dreizehn]

And of course, the other thing too is that there is a difference between our law, and RL law. You talk about "genuine injury to persons", this is what things like defamation and harassment are within this universe. If somehow you can tell me that the false ruin of someone's reputation/credibility on NS isn't an injury, then we really have no basis for any NS law to begin with. A great majority of the regional laws that NS has produced promulgates in one way or another either protection of the region and its reputation/credibility or the protection of the individual and their reputation/credibility.

Further, i don't see why you are against defamation. If you say that Harassment is basicly defamation, and you agree that harassment should be a crime, why are you against defamation?

I absolutely do not understand this. You don't know me as well as some people around here do, so they may understand my bafflement at people getting offended at false accusations. I really do not see a problem no matter how much terrible crap is made up about me.

But, that said... the reason why I'm much happier with it being rolled into harassment is that it's a more serious crime, and will require people to repeatedly perform these actions. The measure of proof should be higher for such a thing.

[Cormac]

I don't have a strong opinion either way on Defamation, but it looks like we're going to either have to find a compromise between those who do or leave the language as-is and see how the votes fall when the legislation is at vote.

It would be good if other Councilors could chime in on the subject so we'll have a better idea of how the rest of the Deshret feels about it. Given that I don't have strong feelings about it, I'm willing to further revise my draft in whichever direction most of us want to go, but I need to hear from others in order to know what direction that is.

[Theoden Sebastian]

I think this is a sensible addition and will edit it in, though I may tweak that definition a bit. As it stands, the current wording would criminalize even lawful disclosure -- i.e., intelligence sharing -- which would negatively impact our treaty law. Take a look after I've edited and let me know if you have any concerns with the definition I end up using.

Thank you. I like the provision, though my concern is that the phrase used is too overbroad, and can be abused by overzealous prosecutors. I suggest a revised version of my original proposal, by adding the word "unsanctioned" before disclosure:

"Espionage" is defined as the unsanctioned disclosure by an officer or agent of the Osiris, of confidential information relative to the interest or security of Osiris to a representative of a foreign region.

At this time, Section 5 of the State Code only empowers the Pschent to hear criminal trials or to hear civil cases brought by a citizen petitioner against the government. Civil cases between two citizens are not included, nor is any power that could be construed to include them, and this was intentional (at least on my part, as primary drafter).

If we want civil cases between citizens, an amendment would need to be made to the State Code that would empower the Pschent to hear such cases. I would urge us not to go down that road for the reasons I've already stated previously in this thread, but ultimately it's up to the Deshret and that's just my view.

After further perusal of the State Code, I am inclined to agree in so far as present constitutional provisions restrict possible judicial actions, to only those criminal in nature. But I would disagree in your saying that citizens should be prevented from filing suits that are purely civil in nature, or offenses between two individuals in a private capacity.

[Cormac]

Edited Josh's suggested espionage definition into the draft.