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Monday, 21 June 2010

Did BCA v Singh really show that libel reform is needed?

When I heard someone say at last week's excellent Westminster Legal Policy Forum on Libel & privacy law - challenges for reform that, in effect, the British Chiropractic Association v Simon Singh case was an example of libel law working, I was astonished.

My immediate reaction was if that case was an example of libel law working, then I would hate to see an example of it failing.

However, the person who said that was Professor Gavin Phillipson, one of the most insightful and interesting academic lawyers writing on libel and privacy law.

Anything Professor Phillipson has to say on media law is worth considering carefully, and I thought his was a point of view worth sharing with the followers of this blog in particular.

However, I was anxious not to misrepresent his view and so, with his kind permission, I set out his comments in full below:

"The campaign for the reform of the law of libel has been a wonderful thing in forcing this issue onto the public debate.

"It is, however, certainly not the case that English libel law had become more draconian in recent years.

"On the contrary as Professor Mullis and others have pointed out, all the major changes in recent years have been in favour of the media: the development of Reynolds privilege from 1999 and its strengthening recently in Jameel; the introduction of the offer of amends procedure; and the ability of the Court of Appeal to control the award of damages by juries.

"What I think led to this campaign was developments elsewhere: the introduction of conditional fee awards, which allowed more people to sue; the rise of the internet, which hugely increased the scope for defamatory allegations to be read across the world, thus increasing the choice of possible fora for legal action; the practice of newspapers and NGOs maintaining vast online archives combined with the effect of English law’s archaic multiple publication rule, meant that such bodies faced liability for defamation that was essentially indefinite in time (this is because English law treats each time an article is download and read as a fresh publication, giving rise to fresh liability, meaning that in effect, there is no limitation period for libel).

"English law has not recently become more claimant-friendly, rather the reverse; but the rise of the internet and the globalisation of legal services has recently extended the practical effect of English libel law as a potential restriction on free speech.

"This in turn means that we should be very cautious before accepting that sweeping changes to the law of libel are needed.

"The Simon Singh case - one of the catalysts for the campaign – is illustrative. I am delighted that Simon won his appeal. But whether, as some claimed, his victory proved that more reform of the law is needed I am rather doubtful.

"One might well argue that it showed that the defence of fair comment in the substantive law of libel was sound in that it eventually produced the right result; but that reform is needed to the way that costs are charged and awarded."



Is he right on this?

Is the only reform which should follow on from BCA v Singh a reform to the way that costs are charged and awarded?


Professor Phillipson has generously said he will follow and engage with comments on this blogpost.


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22 comments:

Suzanne said...

If this was a case of Libel Law working right, how come the initial ruling on meaning went against Simon and he was twice refused the right to appeal against that judgement? Surely that must at least mean that the defence of fair comment or public interest needs to be better defined.

Dubito said...

Speaking as a journalist from a different country but one which is probably closest to English libel law (Australia), the Singh case was not the worst example of a libel suit I have seen, and I think the initial judge's ruling on "bogus" which allowed the case to proceed was incorrect but understandable.

I am more concerned, in England and in Australia, that the rules concerning place of publication are tightened to cut down on "libel tourism" and that scientific debate is given a different status in consideration of what is libelous and what falls under a truth defence. (In fact, I would like the truth defence to be a lot stronger or, depending upon jurisdiction, to exist.)

I certainly agree that the Internet has created numerous problem for libel law.

Botogol said...

I've said all along I don't think this was a good 'crusading' case for law reform.

- Simon Singh got himself into trouble not by being a scientist exercising sceptism, but by overegging his pudding with an ill-advised attack on the BCA's integrity (the 'happily promoting' sentence).

Singh was right on the pig picture (Chiropactractic for colic is bogus) but wrong on the particular - in the middle of his reasoned, fair comment, scientific attack he did, alas, write a libellous sentence.

Eady forgot the big picture and took the legalistic view
The appeal judges saw the big picture took the right decision, and, cleverly, found the legal argument to support it.

It's a good case to teach clever judging, but not necessarily one that points to a clear direction for libel reform.

ivan said...

Phillipson says the obvious that something is wrong with the costs system in libel, so we'll tick that box and leave that to one side.

People can fight and lose misguided court cases, and cause considerable annoyance to an innocent plaintiff on the way. The fact of such isolated cases does not prove the law needs changing. Nor does the fact that a judge makes a questionable ruling on the way show that the law needs changing. So BCA v Singh and Desmond v Bower probably don't show that the law needs changing. In each case, the right guy won in the end, and the judge's bad interim rulings were successfully appealed.

What does show that the law needs changing is if there is a persistent background of cases which gave the claimants in those bad cases a good reason to believe that they might win.

So I think what does show that the law needs changing is the Ukrainian case (and all the other international powerful richmen for whom England is the jurisdiction of choice to shut the critics up), the tennis player who got 20+ publishers to apologise before the Telegraph took him on and won, the fact that Bower's book on Desmond remains unpublished, the case of the scientist who criticised a lie-detector, etc.

Tony Lloyd said...

Professor Phillipson makes three mistakes which are fatal to his thesis.

1.Phillipson seems to insist that the law can only be in need of reform if it has changed. “It is, however, certainly not the case that English libel law had become more draconian in recent years.” This only makes sense as an argument if change should only be sought to undo previous changes or it is held that libel law was abosolutely top-knotch beforehand. There are plenty of places where the law, even though long standing and well tested, could be improved. The libel campaign is saying that libel law is one of these.
2.He thinks quantitatively where he should be thinking qualitatively.
There are things that people and organisations should be allowed to publish and things that they should not be allowed to publish. The criteria involved depend on a description of the qualities of what is being said. One should not, knowing it to be false, shout “fire” in a crowded theatre. This is because it is an “act” of speech, rather than an opinion or a bland report of a putative fact. It’s expression would risk injury and death of others. It is not because it is a big lie, or that one has already filled ones quota of lies and needs to hold back for “balance”. “Liverpool FC are good” is, as far as falsehoods go, a whopper but it lacks those qualities that enable us to forbid it. Phillipson however fails to distinquish between what can be said and what remedies and restrictions should be available. He discusses “how much” things have changed and seems to suggest that as “the media” have had lots of good stuff recently then maybe it’s time we slowed down to preserve “balance”.
3.He misses the role of procedure in costs (both financial and time). Simon Singh lost, without any hope of recompense, two years of book-writing time. This is an "outcome" of the case just as much as the BCA withdrawing. It is a bad outcome. If the law (and procedures) were altered it may have been avoided or the extent of Simon's loss reduced. It's not enough that the right decision was reached eventually: it needs to be reached in as efficient a manner as possible.

vp said...

Justice Eady has demonstrated in the past that he will go to considerable lengths to avoid applying precedent favourable to libel defendants.

In the House of Lords judgment in Jameel, Eady was explicitly accused of being "hostile to the spirit of Reynolds". I rather suspect that he will prove equally "hostile to the spirit of Singh v BCA".

Can someone explain why almost all libel cases at the High Court seem to be assigned to this one judge? Given the expense of the appeals process, Eady effectively exercises huge power in the area of media/libel. Couldn't he be reassigned to something else -- bankruptcies, say?

Simon said...

The failure to amend CFAs is important, the costs are used to intimidate. While Singh won his case he was significantly out of pocket. I cannot see that as just. The BCA (corporate) were able to sue Singh (private individual) instead of the newspaper in which he published. This was a blatant effort to use the law and its known costs to bully and intimidate.

There is also something wrong when a foreign publication can be sued in the UK by foreign national for a publication in their own country. There should be some kind of presumption that local law must be used in such cases.

Dr. Brian Blood said...

In my local solicitor's office there hangs a delightful if rather alarming cartoon. A large cow is being pulled in one direction by a defendant and in the other direction by a complainant; a lawyer, bewigged and seated on a three-legged stool, is busily milking the cow.

When discussing legal process and the law it is sometimes hard to decide exactly where an apparent defect lies - is it in the way the law is framed or has developed through a steadily growing area of related case law, or in sets of procedures that have become unnecessarily complicated and therefore potentially ruinous to the either or sometimes both parties.

I feel that this is particularly pertinent in the law of libel because although one can appreciate why either party might want to seek redress from the other, and concepts like 'honest opinion', 'public interest', malice and 'falsehood' are not intrinsically difficult concepts, the process has now become very expensive and in many situations the plaything of extremely wealthy litigants who may have little genuine reputation to protect or use the law as an extension of bullying tactics they employ as part of some 'business' ethic.

It is much too simplistic to say that Simon's victory justifies the law or even the process, no matter that it may have helped clarify certain areas of the law, because there is clear evidence that in science in particular, where authority and reputation necessarily count for nothing, disputes that should be fought out, free of the potential distortions from the fear, threat or initiation of libel action, have been subverted by it.

The problem cases are well known; the potential damage to a proper understanding of areas of scientific progress is not solely a matter for philosophers and academic lawyers, for there is a real threat to a system of knowledge and of knowledge acquisition that requires a no-holds barred albeit open and honest approach to questioning opinion and judging evidence.

Sometime ago, the law thought it had a role to play in religious disputes. There were blasphemy laws and laws about observance and about belief. These have withered away and today we have little more than laws about what constitutes 'good manners' where an individual's religious sensibilites might be involved.

The Appeal Court's ruling in the BCA v. Singh case may be a welcome sign that the law is begining to withdraw itself from matters relating to honest dispute in science.

If so, then this is a good thing - but one swallow does not a summer make.

James Cranch said...

Perhaps in practice it doesn't matter.

Let's say that there is a certain sort of bad libel action we want to prevent.

Then changing the law to make such actions impossible will prevent them.

But also, changing the financial implications to make such actions prohibitively expensive and unrewarding will also prevent them.

I do not know if, in this particular case, the two techniques will be equally appropriate or whether one will work in a better way to the other. But I don't see any reason to be biased for or against one tool of reform from the beginning.

Lloyd Jenkins said...

@TonyLloyd
I think that the point at 1. is rather different: the country has functioned reasonably well without libel reform for years: much of the histeria in the media campaign would have you beleive otherwise.
I'm not sure I follow you at 2.: the reason libel exists isn't because lies are wrong but that they can be damaging to the victim. That is the quality which we seek to forbid.
And, in the end, procedure (3.) can't be shortened too much. Simon Singh's phrasing was close to being libelous. Those sort of cases will have to spend time in court: if we forbid them we risk forbidding legitimate cases too. Has Simon Singh really done nothing for the past two years bar prepare his case? That seems unlikely.

John Collins said...

In response to Tony Lloyd - I can't accept that the country has "functioned reasonably well without libel reform".

Hasn't he heard of the McLibel case? Which broke all records for wasting literally years of court time? And didn't even achieve anything because McDonalds lost on 3/5 of the case despite a top QC being up against two lay people.

And perhaps he'd like to explain to a Maxwell pensioner (or rather non-pensioner) why letting him dish out libel writs like confetti was better than having his pillage of the pension funds exposed at an earlier date.

I'm sure there are hundreds of Maxwells around hiding behind the libel laws. I can think of two right now.

Alex B said...

The good professor is correct in his analysis that libel law has not become more draconian in recent years. However, as with so much in English law, it rather depends on decent men acting decently.

When libel suits were only brought for egregious slurs widely circulated in the English press, then the law probably worked just fine. Unfortunately with concepts such as libel tourism and reputation management, no writer wherever they publish and no matter how true the words they write are free from the chilling effect of libel tourism. This is why reform is needed regardless of the eventual outcome of the few high profile cases.

I liken it to the ill judged and often exploitative 'compensation culture' that suggests no accident occurs without someone being to blame (generally with a lawsuit attached). Now the evidence I have found suggests that these cases are actually fairly rare and not all that likely to suceed or lead to mega payouts. However the perception of these cases has led to a massive burden of 'Health and Saftey' bureaucracy and increased insurance costs on businesses and voluntary organisations. As with libel the costs to the targeted party are massive and something needs to be done to prevent the abuse of process irrespective of whether the law generally gets the right result in the end.

I also think that both problems also share common causes that the legal profession are unwilling to tackle, these are the solicitors/barristers who act for these people who abuse the process and the judges who too often are complicit in the abuse of process or do not punish the abusers to act as a deterent to others. Without action to discourage those in the legal profession from acting dishonourably then this problem will never be sucessfully solved.

Tony Lloyd said...

Hi Lloyd

I think the costs of most libel cases could be dramatically reduced by having the pre-trial hearing at a (much) lower court, including decisions on the evidence required to claim/defend, outlining the likely level of damages and suggesting solutions. (My suggestions on evidence here: http://bit.ly/bW4p5w)

Add in a clear principle of “marginal defamation” and I think that neither the Singh nor the Osler cases would have lasted longer than thirty minutes.

The principle of “marginal defamation” would be the damage done by the words complained of in excess of the worst non-libellous statement that could have been made. It seemed to be accepted by the BCA’s counsel that “blithely promoted remedies for which there was no reliable evidence” was, though defamatory, non-libellous. Insert “knowingly” and “bogus” and there might be a case. But there is little to no case that “knowingly” and “bogus” have materially more sting than a non-libellous statement which thoroughly defames the BCA. The Osler case would have been similar. How much extra libel is there in saying “X was wrongly arrested for being associated with the Baader Meinhof terrorist organisation” as opposed to “X was wrongly arrested for being associated with an unnamed terrorist organisation”?

We may have lived for long enough an well enough with these libel law's in place. However two years of worry, loss of earnings (whether full or no), direct loss of money for a case that appeared (to the three most senior judges in the land) to be more of an attempt to silence a critic than protect a reputation and an unknown number of "pulled" publications certainly gives scope for improvement.

Gavin said...

Tony Lloyd is jumping to a number of conclusions here: first, I agree that libel law needs some reform (e.g. to the multiple publication rule) - I also think that the Reynolds defence should be clarified and strengthened a bit (tho not to the extent of dropping the “responsible journalism” requirement). The reason for pointing out that recent reforms have been moving in favour of greater media freedom is simply to counter the notion, propagated by some in the libel reform campaign that the law has somehow recently got into a state of crisis. So the first point (1) is simply not something that I think or have said.

The point in (2) is somewhat obscure, as Lloyd Jenkins said; as far as I can tell, however, you again, simply misrepresent (or perhaps just make up) what I said. Your last sentence in particular is just not something I argue. The point about the recent reforms is not made to argue that no more are needed, but to point out the dangers of confusing changes in the context in which libel cases are brought (including the costs system) with the law itself.

(3) It would have been rather absurd if I had indeed not made the link between the time spent on the case and the costs incurred on it, since lawyers generally charge by the hour. I am a qualified solicitor, and have filled in time sheets when practicing! I also know that Simon spent a great deal of his own time in the last two years on the case. The point is that Singh's case has often been held up as proving that English libel law is draconian etc. I have merely made the point that I haven't heard a clear argument since the Court of Appeal judgement as to what changes in law (as opposed to costs or procedure) the case shows are needed. By the way JackoK says that I think the case shows that *only* reform of costs is needed, which isn't so. I think we urgently need new procedures to allow libel cases to be settled much more quickly and cheaply, i.e. alternative dispute resolution. If Lloyd has ideas for how the substantive defences of fair comment, truth and Reynolds should change, perhaps he could share and we can discuss them.

Tony Lloyd sounds like an intelligent bloke - a pity he prefers addressing straw man arguments rather than those actually put.

Suzanne - I agree with you that it would help if the defences of public interest and fair comment were put in clearer, simple statutory language. I think this is much more urgently needed for the Reynolds test than fair comment, but it would be useful for the latter as well. The Lester bill seems a good attempt in this regard.

My comments were addressed to the interesting paradox that the recent campaign for reform of libel law has come *after* a series of reform which have liberalised the law considerably, compared to the position prior to the mid-1990s. This does not mean that more reform may not be needed, but it does mean the twin notions that (a) libel law has got worse recently and (b) that English libel law is somehow uniquely bad in the Western world (which is straightforwardly false, but has been endlessly repeated in the press) need to be vigorously combated so that we can have a discussion about the law based on fact and reasoned judgment and not in misinformation and one-sided propaganda from the media, who are inherently biased on the issue, as they are on privacy of course.

Alex said...

"If this was a case of Libel Law working right, how come the initial ruling on meaning went against Simon"

Because Eady made a mistake/doesn't understand English properly. You can't legislate to either stop mistakes from happening, or make Judges better at parsing English.

Ken Hamer said...

"Is he right on this?"

He is dead wrong. This system as is can and is used to threaten, perhaps even in advance, anyone who might voice a contrary opinion. It is an effective tool to to suppress commentary. In fact the Singh case the perfect example of that very process. Yes, he may have won in the end. But how many people can afford hundreds of thousands of dollars, pounds, or euros, not to mention the time, required to defend themselves in the *hope* that they will eventually be vindicated?

Merely reforming "the way the costs are charged and awarded" is just treating the symptom, and not the problem. For many working people, even minimal costs may be a barrier to legal protection. I predict that even in the shadow of the Singh decision, similar cases will arise.

They will continue to arise until the law is changed to make the initiation of such a lawsuit a lot less certain of piling unreasonable and unjustified expenses on to your opponent.

James Jones said...

Professor Phillipson's comments published here remind me of comments made on newspaper web sites relating to articles on the Singh case when it was ongoing. There were numerous posters who seemed very eloquent, who seemed well informed about the law, and with strong views on legal matters. Probably lawyers. My impression was that almost without exception they felt that the libel law and all its apparatus was just fine thank you and many felt that Simon had got what was coming to him due to his "careless" comments.

I feel that our libel law is most certainly fundamentally broken.

That Simon's article, which turned out to have been justified, could result in the monstrous process to which he was subjected is simply wrong. I think it inhuman.

The entire system seems to be biased in favour of frivolous complaints. To suggest that Simon's achievement of the correct end result indicates that the process worked well is simply childish. I can for example point to the absurdly divergent judgements of the two courts on the case. One being the "illiberal" Eady judgement and the other the "extraordinarily liberal" Court of Appeal judgement. This divergence alone is surely sufficient to raise the alarm that there is something terribly wrong.

I would think that even the discredited chiros must feel that the law is an ass? One minute they are kicking this irritating and ill-informed (as they might view it) critic's writing hand to a pulp, they are feeling all smug that their outlandish and unproven assertions are deemed to be unchallengeable in England. Whatever they make up in the night becomes by definition "the truth". The next minute they are forced to scurry back to their coven and attend to their cauldrons, perhaps £200,000 or more the poorer.

I will not try to repeat them here but there are several other similar cases involving doctors and other health scientists where the aim of the claimant simply appears to be to silence criticism. Peter Wilmshurst's ongoing case is one that springs first to mind.

That a respected professor of law thinks that this is all way cool 'n' groovy, is perhaps indicative of the root cause of the mess. Perhaps lawyers are not best placed to figure out what people need from the law? Perhaps something in their training makes them singularly ill-suited to make such determinations. Or perhaps like the chiros most lawyers honestly believe that they are on a correct and justified path to [our] enlightenment:-)? (The previous sentence was written with tongue firmly planted in cheek)

vp said...

@Gavin:

You say that it is "straightforwardly false" that "English libel law is somehow uniquely bad in the Western world".

Isn't it true that English law is "uniquely bad" in terms of the costs of libel actions?

According to one widely-cited study, defamation cases in England and Wales are 140 times more costly than in the rest of Europe.

http://www.guardian.co.uk/media/2009/feb/19/no-win-no-fee-lawyers-shackling-newspapers

Nick said...

It would be interesting to know what specific elements of libel law, as opposed to litigation procedure and costs, are shown to have been at fault in Simon Singh's case.

The fact that the BCA were able to sue at all? That's a general argument against access to justice, as there will be occasions when people are libelled and should be able to seek redress. And if somebody does bring a claim, who is to say it's obviously bogus other than the court? Perhaps changes to the summary judgement process so this can be done more quickly? That's about litigation generally.

The fact that the first judgement went against him? That's why we have appeal courts.

The fact that it took so long, and was so expensive? Problems with litigation generally.

What are the libel-specific problems that this case demonstrated?

vp said...

@Nick:

The fact that a corporation is able to bring a libel suit for anything other than economic loss.

Corporations have neither bodies to be punished nor souls to be damned -- nor, one might add, feelings to be hurt or honour to be insulted.

David said...

It's always been a mystery to me as to why the BCA-v-Singh case deserved a change in the law.

Is the argument that the BCA should not have been allowed to bring the case? If so, why not? They believed that they were defamed and there is certainly one judge who seems to have agreed with them.

Is the argument that "scientists" should be allowed to publish whatever they like with impunity? If so, who is to decide what is a "scientific" comment against a "non-scientific" comment?

Is the argument that it took too long and was too expensive? Well both of those are certainly true, but does that mean that the libel law itself is wrong, or is it the procedure that needs changing?

It seems to me that there is a general belief that Simon Singh was innocent of having defamed the BCA. If that is true, then justice has been done. Where did the law fail?

Nick said...

@vp: defamation claims aren't about hurt feelings, though.

They're about the publication of statements that (broadly) damage somebody's reputation. For a corporation, damaged reputation can mean economic loss. If not, why would companies try so hard to protect their brand/goodwill?