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.
Sunday, 27 September 2009
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6 comments:
Jack, your proposal would be a welcome advance, but I fear that it does not go far enough.
For example, under the new rule, would the enquiry of the "Committee on Standards in Public Life" into the MPs' expenses scandal still be able to withhold from publication Heather Brooke's testimony on the grounds that it could be libellous.
See http://www.journalism.co.uk/2/articles/535700.php
This would appear to be a perfectly sensible proposal that rebalances the conflicting rights to have a reputation (small) with public health (large).
But is this only one small part of what needs to be done. Surely, there is an overwhelming need to ensure that the penalties for libel more closely reflect the scale of the wrong? If I say 'you are a crap lawyer', and maybe you lose the odd client or two. Surely, my liability should reflect the order of magnitude of your losses - and not have any massively disproportionate punative element.
This would also appear to be an essential component of libel reform in that free speech should not bear costs that turn out to be ruinous even if you have made a bit of a dick of yourself in what you have said.
Simon singh is being sued for libel, not because his statement was "concerning public health or public safety", but because it is alleged that his statement suggests that the BCA are disreputable. So the libel has nothing to do with public health.
I am equally amused by your suggestion that anything goes in a piece on public health. If I say that smoking causes cancer, can i then cast any aspersions on anyone, without fear of the libel law ?
I think I'm in agreement with the Le Canard Noir and others. The penalties for damage to reputation in seem too high.
Newspaper Tycoon 'Rupert Maxwell' neglects safety in his printing works and one of his workers dies. The compensation on is £500,000. Someone calls him an 'evil bastard' in print and gets sued for £1,000,000 plus costs.
I think Ben Goldacre, Nick Cohen and others are right: the libel laws exist by accident or design to protect the rich and powerful. Damage to reputations is best protected by making someone correct their insult.
I think the BCA are totally misguided in their libel action (and that their legal action has massively backfired) ... but had they just asked Simon Singh to print an apology for giving any (albeit unintended) impression that chiropractors deliberately and maliciously inflicted unevidenced and potentially harmful treatments on children they'd have had a point.
The law should protect all deserved and well-founded reputations. Just placing a cash value on a reputation fails to do this and acts as a multiplier for any 'legal chill'.
(On the other hand what you propose would be a good first step!)
Thom
"Abuse if you slight it, will gradually die away; but if you show yourself irritated, you will be thought to have deserved it."
Tacitus
I'd like to reiterate the "not far enough" point.
Let us mention Sheikh Khalid bin Mahfouz, which is safe because he has recently died. He was the prominent libel tourist who sued in the UK courts every time people said things about him he didn't like, even when there was documentary evidence it was true, and just about wherever they said it. If he could show that some foreign dealers had posted some minimal number books to Britain, that was about enough for Eady to allow him to sue. The US was so upset about some of these aspects of UK libel tourism, that they have some specific legislation in process to make UK libel judgments unenforceable in the US.
Clearly we need to address the tourism aspect, I leave it to lawyers to consider how.
But we also need address the "chill" point - Mahfouz frightened large newspapers off from publishing things for which there was documentary evidence. The mere threat of libel actions is apparently so costly that even major newspapers hold back from publishing well-evidenced things concerning deep-pocketed threatening indivduals.
But I would the law to go further than let people publish the truth unafraid, I'd like them to be able to warn us. Private Eye warned us Bob Maxwell was Up To No Good with someone else's money, which he was, but at the time Private Eye couldn't prove it and they lost in court. But this is a difficult one, because without proof it is always possible they might have been wrong.
I think these last couple of points raise the issue of standard of proof, and more generally of malice. If you have reasonable suspicion, rather than proof, what sort of things should you be allowed to say? Jack mentions public health. But what about financial misdemeanour, the Maxwell issue? What about politicians lying? If politicians are lying, does it matter if the lie is about financial probity, or about marital fidelity?
I think we have to have some more general rules about what we are allowed to say that might damage people's reputation (which can result in true damage in terms of loss of income), rather than specific exclusions in the name of public health, etc.
The damages in libel always struck me as odd. They seem to be made up without consideration of actual damage. If people had to make some plausible argument as to tangible loss of income, I think we might get some sense into it.
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