'Legal Fiction: Reading Lolita as a Sentencing Memorandum' by Christina Frohock in (2022) 86(1) Albany Law Review comments
The idea of a legal narrative often focuses on identifying a narrative within the law, for example, the persuasive power of storytelling in a trial court motion or an appellate brief. The story emerges from the law. This Article proposes inverting that focus so that we identify the law within a narrative. Using the example of Vladimir Nabokov’s classic novel Lolita, the Article explains how we can read the novel as a prolonged sentencing memorandum. That memorandum casts the infamous first-person narrator, recounting his crimes under the pseudonym of Humbert Humbert, as a defendant writing pro se. In Lolita, the law emerges from the story, showing that an entire legal document may be redrawn as a narrative. The legal document and the narrative are one, with a distinct point of view in favor of the criminal defendant. This unity between law and narrative illuminates a deep, essential goal shared by both genres: garnering sympathy. The notion of law without sympathy thus rings hollow. Finally, this essential link between law and sympathy shines a new light on the law’s role to promote justice. Justice must be measured at least partly as an expression of sympathy rather than solely as a cold calculation of costs and benefits.
SCAG earlier this month stated
On 9 December 2022, the Standing Council of Attorneys-General approved in principle final amendments for Part A of the Stage 2 Review of the Model Defamation Provisions. This is subject to final agreement in the first half of 2023. Participants noted the significant work that has been undertaken by the interjurisdictional Defamation Law Working Party, led by NSW, since the exposure draft Part A Model Defamation Amendment Provisions were released in August 2022 for public consultation. A large stakeholder roundtable was held in September and 36 written submissions were received. Careful consideration has been given to the feedback received from a wide range of stakeholders and this has informed further refinements to the Part A amendments. The Part A reforms that have been agreed in principle for commencement from 1 January 2024 are a pragmatic approach that is intended to strike a better balance between protecting reputations and not unreasonably limiting freedom of expression in the various circumstances where third parties publish defamatory matter via internet intermediaries.
The amendments include:
- Two conditional, statutory exemptions from defamation liability for a narrow group of internet intermediaries, including search engines in relation to organic search results
- A new innocent dissemination defence for internet intermediaries, subject to a simple complaints process (Model B)
- A new court power to make orders against non-party internet intermediaries to prevent access to defamatory matter online
- A requirement that courts consider balancing factors when making preliminary discovery orders
- Updates to the mandatory requirements for an offer to make amends for online publications
Participants agreed that Commonwealth officials will consider the desirability of an exemption from section 235(1) of the Online Safety Act 2021 for defamation law and report back to the Defamation Law Working Party in the first half of 2023.
Participants noted an update on Part B of the Stage 2 Review, led by Victoria, which considers whether absolute privilege should be extended to cover reports of alleged unlawful conduct to police and other entities including statutory investigative bodies and professional disciplinary bodies.
Participants noted that consultation on the Part B reforms was finalised in October 2022 and that stakeholder feedback is informing final policy recommendations and amendments to the Model Defamation Provisions. This will enable consideration and agreement of the final Part B amendments in 2023.
Participants agreed in principle that there should be a review of the Stage 1 and Stage 2 amendments to the Model Defamation Provisions beginning no later than 3 years after the commencement of the Stage 2 amendments (for both Part A and B) in all states and territories.
