The UK Parliamentary Select Committee Report

The offence of blasphemy, last successfully prosecuted in the UK in 1977, has now been abolished. However, an analysis of the offence is instructive and the history leading up to its abolition will be briefly recounted. Following a 1985 report by the Law Commission, which concluded that the offence should be repealed, and a similar recommendation by the UN Human Rights Committee, in 2002, the House of Lords appointed a Select Committee ‘to consider and report on the law relating to religious offences’. The Report did not offer a conclusion regarding the law of blasphemy, but offered several possible options for reform which will be discussed later. The report, in its approach to religious freedom, mostly encompasses the identity aspect of religious freedom rather than its expres­sive-critical aspect, as will be seen in the following discussion.

In its analysis of the law under the Human Rights Act 1998, the Committee saw in the prohibition a contravention of freedom of expression (Article 10) and of the obligation not to discriminate in the application of the right to religious freedom (Articles 9 to 14). It thus looked at the equality of protection of religious freedom of the members of groups, which the blasphemy laws either did or did not protect. The Report did not consider religious freedom as a critical- expressive right, the religious freedom of the blasphemer, which is impaired by blasphemy laws.

The Select Committee suggested three options for reform the offence of blas­phemy, without choosing between them: ‘leave as is’, repeal, or replace with a broader offence. The reasoning behind each of the approaches reveals more of a community-identity approach than an expressive-critical approach to religious freedom. One reason for the first option, leaving the law unchanged, was that blasphemy law was part of the legal fabric; this reasoning underscores the law’s constitutional heritage and national identity, which should be tampered with only for weighty reasons. This is a viewpoint that sits squarely within the community perception of the right to religious freedom.

Under the reasons in support of the ‘repeal’ option, the Report stressed that the common law offence of blasphemy was discriminatory as it protected only one religion. The Report also stated that the most serious deficiency of the blasphemy offence is that UK courts had interpreted the offence as one of strict liability. The Report did not directly ask, however, whether any offence of blasphemy would be commensurate with respect for religious freedom. An expressive-critical approach would raise this question and answer it by noting that a blasphemy offence is incommensurate with the right to religious freedom.

Under the option of replacement of the offence with a broader, non-discriminatory provision, the Report suggested the use of the Indian Penal Code provisions as a starting point, particularly Article 295A, which states:

Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or religious beliefs of that class, shall be punished with imprison­ment… or with a fine, or with both.

The Indian Supreme Court viewed this Article as commensurate with the Indian Constitution’s provisions of freedom of speech and freedom of religion. The Indian approach, as the Report itself noted, is based on the uppermost con­sideration of preventing religious strife in a particular political context. The Report envisioned problems with such a law, namely potential misuse for political prose­cutions (which it did, however, see as unlikely to occur in the UK) and the difficulty of defining hurt to religious feelings.

Yet the more basic objection should stem from a view of religious freedom that sees the value of this right in the freedom to criticize and debate issues of religion and belief. Even deliberately insulting speech is not necessarily without merit; some effective conveying of religious ideas for and against religions is deliberately provocative and insulting. There is, however, speech that effectively silences, through propagation of hate or intimidation, members of a religious group from expressing their own voice and enjoying their rights as equal citizens. This speech should be more narrowly defined and is better addressed through prohibitions on hate speech.

How the Law Treats Lawsuits by Debt Collectors and Original Creditors Differently

As I have pointed out elsewhere, people can be sued for debt by one of two different kinds of plaintiffs: “original creditors” or “debt collectors.” Broadly speaking, original creditors are the persons who originally claimed that you owed them money for some credit-based transaction. Debt collectors are other entities who either came into possession of the debt after it was delinquent or are acting (as independent contractors) for the original creditor.

Loan “servicers,” who come into possession of the debt immediately after it is incurred and administer the debt in the usual course of business, are considered “original creditors” even though the debt obviously did not originate with them.

Legal Impact of the Entity Suing You

Because original creditors have a direct, non-collection relationship with the general public, they have commercial pressures preventing them from acting too horribly during the collection process. Their collection activities risk alienating or annoying the public and thus, in the eyes of the law at least, they are held in check by the market. Therefore, the law does not provide any remedy against original creditors per se. However, this does not mean that original creditors are permitted to do anything without limits during the debt collection, just that there are no laws directed against them specifically. If they commit “outrageous” and abusive acts, or if they “defame” you by publishing false information, or obviously if they assault you or commit some other crime, you would still have your normal rights under the law.

Some states probably have specific laws directed against the collection process, too, either as part of their “merchandizing” codes or otherwise, so you should not automatically write-off the behavior of original creditors.

Against debt collectors, however, you have much more specific rights. And this goes back to the commercial realities underlying the transactions. There is no customer-based relationship between the debt collectors and the people from whom they are collecting. There only customers are either the original creditors, or none at all-they are acting independently on their own behalf and, as far as the market is concerned, are free to take any actions whatever to collect the money. This has given rise to some extreme and shocking abuses, and it led to the passage of the Fair Debt Collection Practices Act (FDCPA), among other legislation.

Because of the lack of market countermeasures to debt collectors and the legislative response, the relationship between individuals and debt collectors has become significantly regulated. The FDCPA makes “unfair” or “deceptive” collection techniques illegal in general, and it specifies a large number of particular practices as violations. But even if the action is not specifically named as illegal by the FDCPA it will still be illegal if it is unfair or deceptive. This allows lawyers and individuals fighting on behalf of people abused by debt collectors to be as creative in stopping obnoxious practices as the debt collectors are in creating and implementing them. The FDCPA provides attorneys fees to people suing debt collectors (if they win), but otherwise the remedies are fairly small, with the exception of “personal injuries,” which can include emotional distress. So that opens the door to real money a little bit.

Again I would remind the reader that remedies are not limited either to federal law (FDCPA), as some states may have better laws, or to debt-collection related laws. Reporting false information is defamation, and behaving beyond certain limits is “outrageous” enough for states to provide a remedy. And these remedies likely include punitive damages, various forms of “compensatory” damages, and other forms of relief that can be much more substantial than those provided by the FDCPA.

In conclusion, it is far more advantageous legally to be sued by a debt collector, as the law provides many more remedies against them. You are not without any remedy, however, against the actions of original creditors if they are sufficiently extreme.

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