My fundamental problem is that there is no adjudicating factor, other than self-report (i.e “i was insulted”). Often this occurs due to an action or speech which was not even aimed/directed at the person claiming to be insulted.
I would reject the concept.
You owe something even without profit. There are mean-spirited people who enjoy harming a person through insults. In fact, the one who delivers insults invade into the personhood of the insulted.
So, let’s try to approach this phenomenon using the mechanisms developed by the continental legal system. After that, we can discuss it all through the lens of the Anglo-Saxon system.
First, we need to clarify: we are placing this institution within the sphere of civil legal relations. What does this mean in the continental legal system (from here on, I will be thinking within the continental legal system): the state cannot accuse or prosecute under criminal or administrative law. If the state can sue a citizen (we’ll explore this further), it is only in private.
Continental constitutions contain a codified right (it may vary from country to country, but generally states the following): everyone has the right to privacy, personal and family secrets, and the protection of their honor and dignity.
The right to honor and dignity refers to personal non-property rights, the judicial protection of which is realized by filing a lawsuit in court and is carried out in accordance with the procedure established by civil procedural law.
Honor is a person’s social assessment, a measure of their spiritual and social qualities;
Dignity is a person’s internal self-assessment of their own qualities, abilities, worldview, and social significance;
In short: honor is a social assessment; dignity is internal self-assessment. Both concepts are tied to the evaluation of the individual, not to its exploitation. My construction is different: not “I was poorly assessed,” but “I was used as a resource.”
If we use this mechanism, we inevitably come to the question: was there any disparagement? Was it false? Was there harm?
This isn’t quite what I want. I need to find out whether there was exploitation? Was there any benefit from it?
So, the object of protection here should be the right to personality (as an object of civil circulation in the negative sense). Civil law already has something similar: 1. The right to an image (cannot be used without consent); 2. Right to a name 3. Right to privacy
In all these cases, the issue isn’t “harm,” but rather unconsensual use. Therefore, “personality” should be protected as a value (as one’s own brand), not as an assessment of another person’s personality.
I was used - someone benefited - share the profit with me
But here we run into the fact that classical constitutions don’t include personality (as a personal brand) among the values subject to protection. Why is this so? In my opinion, it’s connected to the changes in real life that have occurred since the inception of classical concepts of rights. Today, bloggers use your “personal brand” to earn likes on social media. Previously, neither in the 18th, 19th, nor even the 20th centuries, such an option existed. This whole discussion started with a sign on a store. Who cared about it before? Well, maybe a handful of people who had been there. Today, I, on the other side of the planet, know this (stupid) story.
Thus, a “new value” has emerged that deserves protection. Do you agree with this approach?
I’d gladly ban the “energy vampirism” or “toxicity” of some people, but that’s too much. What I proposed above is certainly a “cheat,” but it allows us to approach the problem from a legal perspective. Such a mechanism would (in my opinion) force people to consider whether it’s appropriate to use “others” as targets for criticism or hate if it generates some profit. So be it. First, we need to understand whether it all works.
By the way, the problem didn’t just arise out of nowhere. This right to “speak one’s mind” has evolved somewhat in recent years. If we delve a little into history, the very process of acquiring “subjectivity” in the context of the “right to say anything” was different from today’s. For example, in archaic societies, you had to undergo “initiation” (like killing a bear with a knife, etc.) to be accepted into the group and be able to speak. But this also imposed a moral obligation on you—to be a role model. What about today? Today, anyone who says anything bears no moral responsibility for it (everything is blurred, God is dead, everyone is equal). Hence this whole conversation.
Previously, someone insulted you by right of might. And you weren’t even offended (because insults from the strong don’t anger you—Aristotle’s rhetoric). Their opinion was worth something, and you were left with either agreeing with the offender or challenging their right to insult (for example, challenging them to a duel, etc.). Today, anyone who has asserted their own subjectivity says whatever they want about anyone. This upsets the balance that existed, offering nothing in return. Offering no way to defend yourself. Or even worse, someone who speaks to the point is bombarded with dislikes from paid bots. How can you defend yourself?
Hmm. Very much appreciate the exposition but my comment remains the crux. If there’s a judicial system which allows “insult” to be wielded legally that is wrong to my mind.
I propose we abandon the word “insult.” It’s not quite what we need. Law often does this: it protects something important through an entirely different institution.
I’ve translated a sentimental insult into the language of modernity. So, it’s not an insult, but rather the exploitation of someone else’s resource. This can be measured, it can be calculated, it can be assessed. Let’s move away from the word “insult.”
Then I guess I’m not actually understanding what we’re talking about.
If you mean “exploitation”, that’s it’s own type of transgression rolled into several causes of action (in any jurisdiction I’m aware of anyway).
Given how it’s being worded, I’m unsure I can respond to this adjusted version of the concept. At any rate, I do not think that the law should have any part in saving feelings.
Yes, I agree with your explication of the issue, I am sold. Except for the part where you also want to attach a condition of profit, as in material gain. I don’t agree that the person delivering the insult must necessarily acquire material gains from insulting others in order for the law to prosecute. The psychological toll to the one insulted might be enormous to the point of affecting their livelihood and their family obligations, losing friends, gaining enemies, being shunned in their neighborhood. So, you’re only measuring the gain acquired by the other party, but you’re not assessing the loss sustained by the victim.
Throughout this discussion, I’ve been criticized for not being able to punish insult based solely on how the subject felt, because it’s unprovable and, in a broader context, violates freedom of speech. Hence this approach (but that doesn’t mean we should stop there).
First, I’d like to clarify this. It could be a starting point for further research.
So, I started with the protected value. In the continental legal system, there are elements of legal relations. This is the object—that which gives rise to the relationship, the subjects—the participants, and the content—the very essence of the relationship (the emergence of rights and obligations).
Let’s try to formulate what we’ve approached in a positive sense.
Object: Intangible assets that constitute a subject’s identity and are capable of social and/or economic use (image, name, reputation, socially perceived image, elements of a personal brand)
Parties of the relationship:
The content of the legal relationship is expressed in the right of the party to demand:
Thus, in a positive sense, an individual should have the right to control the use of elements of their identity (image, name, reputationally significant characteristics) by third parties, including for profit-making purposes.
Unauthorized use of identity should be understood as actions by any person aimed at involving the image, name, reputation, or other identifying characteristics of a subject in public or commercial communications (specify here) without their consent, if such actions are likely to result in social, reputational, or economic gain (the emphasis here is on the consequences).
I propose this as a starting point. In the continental legal system, we engage in rulemaking in approximately the following manner: First, we define the object, subject, and content as theoretically as possible, and then we discuss it.
Addition. Today, in the continental legal system, personal non-property rights are not objects of civil commerce. They cannot be sold, pledged, or transferred. I call them “assets.” In this entire story, this is perhaps the most important shift. It’s a kind of semi-reversible construct. And the most important problem. So, identity rights are similar to property rights (prohibition, transfer of benefits), meaning they can simply be purchased? It’s difficult to simply reify them. But if we want to protect them, we’ll have to do so…
Excellent. I found something similar in Denmark. It’s already a working version (the law has been passed). It’s somewhat different from what I proposed; it’s more likely that it only regulates online relations. But nevertheless,
I thikn there is some serious error in this approach.
If you’re in public, some of these go out the window. “Likeness” is a bit different, because it generally only attaches to a public person, so setting that down for the momement:
“socially perceived image” is a nonsense. It is nothing, tangible or intangible, that could be pointed at without an extremely tortured process of eliminating all contraindications from the environment in whcih one is arguing hte point. That seems both misguided, and impossible on it’s face. This is not to argue that it is not part of some policies. It is my telling you that for my money, this is bogus and unenforceable.
So looking at the other elements, they are already taken care of - and have moved so far away from the initial questions posed that again, It’s hard to respond. This is an entirely different conversation now. Onward…
This, I do agree with. Someone’s “self” as it were, is theirs, regardless of what actually makes it up (this is why i removed socially perceived from it, as that definitionally does not belong to the subject). So, in concept, I am with you - and i note that most jurisdictions do offer some fairly comprehensive protections along those lines.
So, to me, this is now a bit of a dead-end. Those things have already been rolled into policy most places and are fairly wieldy, as best I can tell. There are plenty of defenses, though, until one starts profiting. So the stop-gap I would have pointed it is covered by the profiteering nature of the type of cause of action you want to see. I can’t understand a place for what you’re positing - it’s already there (albeit, in several places rather than a catch-all Bill).
On your concluding remarks, I do not think one’s identity should be saleable. Nor is it, best I can tell, anywhere. So I’m unsure what it is we’re getting at protecting? This adjusted version of the thread seems to be retreading ground that the law covered over about 40 years ago? I really, really appreciate your efforts in clarifying and helping me along in this discusison.
Excellent, and thanks for the comment. I appreciate it. But I (as you’ve probably already realized) don’t want to dwell on it. Your main message is: “What’s new and original?”
Let’s look at this:
Of course, all this has strayed far from the original topic. But that’s exactly what we’ve been doing from the very beginning—identifying what needed protection and devising a mechanism. I had to dig out my dusty legal tomes to get it all down to this point. It’s wonderful (for me) because it’s rekindled some interest in this field.
This entire correspondence, and even this forum subsection, is somewhat different from the rest: it’s truly practical philosophy, not just a reflection on the decline of society. I see some diversity in this. Why not?
I think the problem here is that we keep talking about slightly different things:
Our face, our identity, our uniqueness only matter if there’s someone else. If you’re alone on a desert island, none of that has any value, and you could be anyone. The value of what I’m talking about arises when there are at least two people. Value (and I say the law should protect this now) arises in society, and especially in public.
If you’re on a desert island and suddenly receive a message in a bottle insulting all desert islanders, you wouldn’t care at all (considering you’ll never meet anyone).
Identity is only important if there’s something else to confuse it with: a scoundrel or a saint—all of that matters if there’s someone else.
The mechanism I’m proposing again is this: your identity has been used (for better or worse, it doesn’t matter) and profit has been made from it. Let them share the profits. I propose to shift the focus for several messages in a row.
While I appreciate it, I have responded to exactly tihs quite explicitly and my opinion is that no, the law should not protect this insofar as it doesn’t already (which it does, to a massive degree, in most places). I simply don’t see what you’re asking to protect, which is not currently protected. I can’t see what form of “exploitation” you want to talk about, without simply saying “this other cause of action covers it already”. I am sorry if i’ve missed something major.
@Astorre Maybe it would help if you set out a real specific example of the situation you are trying to develop a law to protect against. The Denmark law seemed like a version of trademark or intel property right infringement law.
I keep picturing the issue has to do with social media. People get paid to attract views and likes. So if someone posts my image, or uses AI to make my image, and uses my name (so now it’s something that affects me) in their social media platform, and I don’t like it or want them to stop, or they make money with views or likes from the post with my image, is that what we are trying to address?
Yes, social media is the most obvious example of the problem, because they directly monetize attention, reputation, conflict, and engagement.
But I’m trying to describe a broader phenomenon. This isn’t just about protecting an image, name, or trademark. And it’s not just about defamation. It’s about a situation where someone else’s identity is used as a resource for gain—economic, social, political, or symbolic—without the participation of the bearer of that identity.
And here’s a very important thing: sociology is needed. We need to conduct high-quality research into what exactly people would like to protect, where they are most vulnerable, so we can talk about specifics. Ultimately, all of this is just my perspective. I don’t even know if society needs it. My intellectual task was to somehow conceptualize the mechanism. But what to fill it with is a question for sociologists and politicians. I don’t rule out the possibility that different countries will have different sociology: some want the most mentions of themselves—good or bad—it doesn’t matter. In other societies, it might be the opposite: “Leave me alone, let me live in peace.” It might also differ between a big city and a small one… I don’t know.
Everything I’ve presented is a theoretical solution to a potential problem. A mechanism for development and use.
As previously, appreciation - but I still don’t know what you’re actually talking about.
Lay out a couple of cases for me?
Yes, please.
There’s a user registered on this forum. Let’s say AmadeusD. This user has some authority, and his comments are “table-turning.” He’s a very serious philosopher, having spent many years working on this.
Tomorrow, another user, Anti-Amadeus, registers on this same forum. Anti-Amadeus’s entire activity consists of collecting and organizing Amadeus’s comments, then ridiculing them, accusing them of using AI, and so on. Anti-Amadeus hasn’t read any philosophy. A short course in the Frankfurt School of Philosophy was enough for him; now he can deconstruct everything. Plus a bit of humor and charisma, plus trolling. And so, after some time, the original AmadeusD lost his authority. His posts are getting dislikes, or accusations of using AI. Amadeus’s girlfriend, having read all this, dumped him, and bankers are refusing to give him a loan (considering him a liar).
I hope you understand me with a little humor.
But how will you protect yourself?
Gotcha.
So, in this situation I have two responses, that cross two domains you’ve talked into here:
Losing my girl could happen for any reason. If it’s because she someone bought into the criticisms of a philosophical tadpole who didn’t even intend to say anything reasonable, I can’t say that’s my loss.
I don’t need protection in this situation. It’s up to me to beat her/his speech with mine.
Of course, a true philosopher is hard to come by =)
So I’m not trying to defend feelings. You personally may be resilient enough to ignore such behavior. Another person will be worried. A third might even turn it into a source of motivation – buy a punching bag and become a boxer. It’s a question of character.
But I think we’re still talking about different levels of the problem. You speak as a strong individual: “I can handle it. I don’t care.” And that’s your right. You can completely ignore such a law even if it is passed, since it’s a civil law matter (defend yourself, if you want to).
But I’m trying to look at it as a social mechanism.
Imagine that Anti-Amadeus is no longer a single person, but an entire infrastructure: algorithms, trolls, accounts, channels, the endless recycling of someone else’s personality into content. Not for the sake of truth, but because destroying someone else’s authority brings attention, influence, money, and symbolic capital.
In such a situation, we’re no longer talking about “insult” in the old sense of the word. We’re talking about the systematic exploitation of someone else’s identity as a resource.
And here, I’m not interested in the question: should people be able to tolerate it?
But rather: should the law completely ignore the emergence of a new form of profiteering from someone else’s identity?
But don’t forget the preventive power of law. The potential negative consequences (in the form of lawsuits and possible damages) will discourage many who want to even try to hype things up.
In general, on this topic:
At this point, I took a short break: going further and clarifying details while working in the void is pointless. First, we need to conduct sociological research and generally engage with this whole thing seriously. Judging by the interest of the participants on this forum, two things coincided: a reluctance to delve into practical issues and a lack of interest in a narrow, specific topic.