Are there really still problems being caused for scientists and science writers by the English law of libel?
On the face of it, that seems an odd question to be asked on this of all blogs.
But it is an entirely serious question, and it is not one which is intended to be unduly provocative.
Indeed, unless those of us who contend there is such a problem can answer this question in a calm, informed, reasoned, and ultimately persuasive manner, then our influence may be minimal in the upcoming debate on the legislative reform of libel.
The onus is on those of us who are urging reform to articulate and evidence the problem which requires a solution, and why the solution we propose addresses that problem.
Mere assertions of an adverse effect will not be enough.
And there is perhaps a danger that we are so accustomed to repeating the charge that libel should be kept out of science that we have lose sight of the nature of the problem.
Or it may be that we do not realise that if there was a problem, it may have already been solved by the Court of Appeal in British Chiropractic Association v Dr Singh.
The starting point for grasping the nature of any problem must be the spate of libel cases which involved science and medicine in the years running up to the Simon Singh case.
Simon was first threatened over his Guardian article on 28 May 2008 and the BCA's claim form was issued on 10 July 2008 (see here).
There was by then cause for serious concern for how libel had been impacting on science for at least three or four years before the BCA's actions.
It appears Gillian McKeith was threatening her various libel claims from at least 2004 onwards (see here), though details of these claims are currently difficult to obtain. In particular, it is not clear what is the current status of her claim against The Sun.
Andrew Wakefield issued his claim against Brian Deer and Channel Four on 31 March 2005 (see here and here).
The claim was abandoned on 2 January 2007. As to the details of the case brought by Wakefield, do see Deer's excellent account here.
In 2007, a paper co-written by Professor Francisco Lacerda on the deficiencies of certain lie detection equipment was pulled from the International Journal of Speech, Language and the Law after a libel threat from the manufacturers (see here).
And in the summer of the same year, Matthias Rath launched his claim against Ben Goldacre and the Guardian (see here). Rath dropped his case in September 2008.
On 11 October 2007, the Society of Homeopaths sought to take down a blogpost by Andy Lewis questioning their approach to claims by homeopaths that they could treat malaria (see here).
On 21 December 2007, NMT Medical Inc issued its now notorious libel claim on Dr Peter Wilmshurst (see here). The case is still ongoing.
And then in 2008, in what (for me) was the most sinister of all the recent claims for libel in a science context, General Electric Healthcare issued a claim against the radiologist Henrik Thomsen.
(All key documents on this important case are hosted here by the excellent ProPublica website for public interest journalism. Anyone interested in medicine and the law should read the original documents and see the horror unfold for themselves.)
I intend to write further on this one extremely nasty example of libel abuse. The case was dropped in February 2010, but only after Thomsen's poacher-turned-gamekeeper defence lawyers Carter-Ruck threatened to countersue.
And also in 2008, there was the libel threat against David Colquhoun and the New Zealand Medical Journal by the New Zealand chiropractors (see the the splendid editorial here).
So when Simon received the libel threats from the BCA in May to July 2008, it was against a background of a few years' use and abuse of English libel law against scientists and science writers.
But the intention of those threatening a libel claim is rarely to actually bring one.
Instead, the intention of those who use libel threats as part of so-called "reputation management" is for the potentially adverse statements not to be published in the first place, or to be quickly taken down.
For the defendant to call the bluff of the claimant, as which occurred in almost all the above cases, is exceptional.
It is not thereby a surprise that most of the claimant lawyers in the cases mentioned are not actually from the top City law firms specialising in "reputation management".
They wouldn't have been so clumsy.
For me, the greatest concern for science and medicine from libel is not the famous headline cases.
Instead, it is the ongoing, deadening effect fear of libel has on science writing and publishing.
This became most apparent in the days after the adverse ruling of the High Court in the Simon Singh libel case.
Until then I had more-or-less focused on his case, though I was slowly becoming aware of other examples of how libel was operating in the context of science and medicine.
But at the support meeting for Simon which was organised at the Penderel's Oak on 18 May 2009, it was the attendance of countless working science journalists and editors which was the most revealing.
The real impact of libel on science seemed not to be about the rare cases where the defendant fought back.
Rather, the impact was a chronic "libel chill" - the everyday practice of not publishing, or not even writing, because of the anticipation of a libel case.
Of course, it is difficult to quantify the effect of such a "libel chill".
However, in February 2009 Sense About Science* placed evidence before the Culture, Media and Sport select committee on the extent of the adverse effect libel was having on everyday science writing.
I urge you to read it.
But does this evidence, when combined with the above examples of the use and abuse of libel, really substantiate the contention that there is a problem caused to science by libel?
And, if not, what evidence could substantiate such a contention?
These are difficult questions.
And a further difficult question is the extent to which there still needs to be a campaign to keep libel out of science in view of the Court of Appeal judgment in British Chiropractic Association v Dr Singh.
That judgment, to my mind, establishes that it is "fair comment" (or "honest opinion") to make statements about the value of evidence. Accordingly, for Simon to say "not a jot of evidence" was an expression of opinion, and he was entitled to say this, unless he was being malicious.
The panel of the Court of Appeal in that case (the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sedley) was the strongest one conceivable and, unless overturned or limited in its scope by a future Court of Appeal or the new Supreme Court (both of which are unlikely, but theoretically possible), the Court of Appeal judgment is now binding on the High Court.
So libel law is now to be kept out of good faith disputes over evidence, whether in a scientific context or not.
That is a step forward.
It is also perhaps significant that since the claim against Simon, there has not yet been another publicly-known libel claim brought against a scientist or science writer.
That is another step forward.
However, neither the Court of Appeal judgment nor the role of the internet in countering misconceived libel claims will mean that "libel chill" has gone away for science or other evidence-based writers.
It is still straightforward to threaten or bring a libel claim pitched in terms other than in respect of the evaluation of evidence (for example: the BCA said Simon had accused them of dishonesty; General Electric Healthcare accused Thomsen of malice).
And the impact of the internet will always be contingent on bloggers and others volunteering to spend time and energy on cases which may or may not come to light.
So, in my opinion, libel chill still remains for scientists and science writers.
For me, the best way of removing libel chill would be for a statutory general public interest defence to be introduced into English libel law.
This defence would not be limited to scientists and science writers; nor - as is the case with the Reynolds defence, would it be a defence limited just to well-organized and "lawyered" newsrooms on a good day, with a fair wind, and with a sensible judge.
It would be a public interest defence which would go to the subject matter of the statement made without malice.
The new Lord Lester Bill, on which I intend to do a series of blogposts, seeks to introduce such a defence.
Would such a reform work work?
And are any of the other reforms in the Bill of any help?
The tests for me in answering these questions are:
- whether the proposed reform would have deterred or prevented any of the libel cases to which I refer to above; and
- whether the proposed reform will tend to remove the "libel chill" which currently affects so many scientists and science writers.
These are hard tests, and we should be rigorous in applying them.
Free discourse is crucial for progress in science, medicine, public health, and public safety.
No right to private reputation should hinder such discourse, unless malice or bad faith can be shown.
Lord Lester's Bill will have its second reading on 9 July 2010 - the essential website for following its progress is here.
In my view, everyone who followed Simon Singh's case, on this blog and elsewhere, should follow the progress of this Bill just as avidly.
But it should not be followed uncritically.
At every step, and with every amendment, we should ask whether the Bill will protect writers and publishers seeking to contribute on matters of public interest, including science and medicine.
And perhaps any legislative change will not only mean that the likes of Brian Deer and Ben Goldacre, Henrik Thomsen and Peter Wilmshurst, and of course Simon Singh, will never have to face the ordeal of a libel suit again; it will mean that "libel chill" in matters of public interest will be banished at last.
*Declaration of interest. I am delighted to have just been invited on to the advisory council of Sense About Science.
No purely anonymous comments will be published; always use a name for ease of reference by other commenters.