There are important articles about public health and public safety, about science and technology, which are simply not being published or even written, just because of the English law of libel.
Libel seeks to protect reputation, but it can be used to discourage and prevent any critical contributions to important debates. Once the prospect is raised – or even merely feared – of a libel claim, the contribution to a debate will probably not take place. As a consequence, the output of that debate will be less useful and less efficient.
Public debate is debased; the terms of the debate are counterfeit and - indeed - bogus.
The mere existence of the English law of libel has a negative effect. This is called the chilling effect.
But the right to protect reputation should not be absolute. And indeed it is not in many areas: the defence of "qualified privilege" has expanded over the years to cover many situations where there is a public interest, regardless of whether the damaging statement can be "justified" or be deemed "fair comment".
Areas of qualified privilege include:
- reports to the police;
- reports to social services;
- complaints at work;
- regulatory communications.
And so on.
In these areas, an aggrieved potential claimant can only bring a case if malice can be shown - and the onus is on the claimant to show this.
It is in areas where there is no qualified privilege where there is the most severe "libel chill" - the chill caused of course because a libel action can be brought without proof of loss and the burden of proof is on a defendant to show justification or fair comment.
Where there is qualified privilege there is little or no libel chill.
Historically, qualified privilege often arose when there was a "common interest" between the person making a statement and the person receiving the statement. Other areas of qualified privilege were introduced by statute, for example covering certain official publications and reports.
In my view, each development of qualified privilege has been a response by the Courts or by Parliament to some new idiocy thrown up by the law of libel.
In 1999 the House of Lords departed from the narrow basis of qualified privilege where there had to be a close proximity between the maker of a statement to its reader and, in Reynolds, extended its protection to investigative journalists writing for the public as a whole, as long as certain demanding requirements were met.
In practice the Reynolds defence has been difficult to deploy by newspapers, as it takes arguably an unrealistic view of investigative journalism: for example, putting the statements to the subject before publication merely leads to a protective injunction.
Nonetheless, the principle remains - there are certain publications to the world which should be protected, without needing to show justification or fair comment, because the public interest in their publication outweighs the private interest in a reputation.
Perhaps there should be a general public interest basis for qualified privilege for general publications.
However, that may be too ambitious request. I would settle for there being qualified privilege in respect of matters of public safety and public health.
This would have protected the fine journalists who sought to expose the 2006 Trafilga oil scandal as well as Simon Singh's critique of chiropractic.
There is a clear public interest in statements being published to the general public which regard public safety and public health; so clear a public interest that it is difficult to conceive of a better example. If the statements are malicious, then the claimant can still sue; if the statements are merely incorrect or unfair then the claimant can still point this out - I would accept a statutory right of reply or a duty to make an appropriate correction.
But reputation should not be the primary issue in debates about public health and public safety.
Some things are just more important.
And so my practical proposal for libel reform is for Parliament to enact - either in a new Act or as an amendment to existing legislation - for a publisher of a statement concerning public health or public safety to have the automatic benefit of qualified privilege.
(This could perhaps be called the "Simon Singh Amendment".)
And then only the malicious will feel libel chill.