Why Not Also Punish False Praise?
I recently read on social media praise for someone I know, someone about whom I know some negative things. I realized that if I posted my negative comments, those would be held to much higher standards than are positive comments. I might be sued for defamation, and many would apply a social norm to me which demands that one defend negative comments with concrete supporting evidence. We don’t have such a norm regarding positive comments.
While the Romans allowed one to sue for damages when someone defamed you even by saying true things, we today only allow that when someone says false negative things, although at common law the burden of proof is on the person accused of defamation to prove their negative claim. The message is: don’t say negative things about others in public if you can’t prove them in court.
Presumably the reason we now allow suits for false defamation is that we see a net social harm there; others are liable to be misled, causing misallocations of resources and relations. In addition, resources may be wasted in back-and-forth defamation battles. But it seems to me that we should also expect similar social harms to result from false positive comments, not just false negative comments. So maybe we should consider having law discourage those as well.
With negative comments it is the defamer who pays the person defamed, even though it is the larger society who in fact suffers the net social harm. The person defamed is just a convenient party we give an incentive to sue. But defamation law would serve a similar social function if we turned it into a bounty, where anyone could sue and collect it. So an obvious option for false positive comments would be to make that into a bounty.
It seems counterproductive to expect the person who is falsely praised to sue someone for doing that. Their incentive can be weak, and if they win they gain twice, from the false claim and from the suit. So my proposal is: let anyone sue re a false positive claim, the first person to succeed gains a bounty amount equal to the court’s estimate of the false gain that resulted. Again put the burden of proof on the person who made the claim. So just as with defamation today, the bounty hunter would have to show some substantial net monetary equivalent gain to the person who was falsely praised, and that could be the amount awarded to that hunter.
Yes, in our world where false praise isn’t punished there’s a lot of it, which isn’t believed so much, and thus each instance causes less harm. But that would also be true if we didn’t allow suing for defamation; a lot more criticism would happen, which would be believed less. If this isn’t a reason to allow defamation, it isn’t a reason not to allow suits against false praise.
Of course, I don’t expect people to leap to implement my proposal. I offer it as a thought experiment, to help us think about *why* we don’t like this, even though its justification seems similarly strong to our usual justification for allowing false defamation lawsuits. Why is false praise seen as so much less harmful than false criticism?
In the current system we can choose to communicate high probability factual disqualifications for someone as well as more fuzzy gestalt judgements based on low probability concerns. We simply moderate the amount of exaggerated praise we offer. If you start policing that exaggerated praise too sharply it becomes impossible for someone to convey the fact that a job applicant has always seemed to collect suspiciously lucky data sets (but maybe it's nothing) without outright accusing them of fabricating data.
I guess I'm suggesting that failing to offer exaggerated praise seems to much more effectively communicate to most humans that you have some relatively low probability worries about someone than by actually stating the probabilities. And you can't really make normal human psych work with probability judgements in context of libel law (what would people think if I went around asserting that with probability 1% you looked at child porn…even if that is just the population base rate).
While I like the idea of discouraging false praise I don't think this is a good or plausible solution for a couple reasons.
1. A positive libel bounty hunter would (unlike a libel victim under current law) would have every incentive to look for people engaged in speculative low confidence speech and try to squeeze them for money when they get something wrong. When only the victim of libel can sue and such lawsuits are usually money losing against private individuals the desire not to look like a dick encourages them to accept an apology when someone simply makes a mistake in an off the cuff conversation. I fear this would highly deter such speech.
2. The very tendency you mention about holding negative claims up to far higher scrutiny means that people can simply offer vague praise or praise in the form of an opinion which renders it (for good reason) immune from libel suits. Since people don't scrutinize positive remarks the way they do negative ones there won't be the same demand for specific hard details.
3. I think we are pretty good at distinguishing mere puffery or flattery from real information rich claims. What we really learn from random vague positive statements is just that the lauded individual is regarded (by some) as having high status and/or power (true or people wouldn't make them). When people are truly trying to evaluate someone they look for more specific claims which are pretty well deterred by the same reputational forces that deter most negative false claims (libel in the US today is really more about a recourse in the case of intentional harassment/campaign to harm).