To sue or not to sue?
Phil Willis updates scicommers on the libel law.
By Parliamentary standards, four years to put ground breaking legislation in place is excellent progress. For the science community, the intolerable wait for protection against the chilling effects of UK libel laws has seemed an eternity. Indeed if it had not been for the courage of Simon Singh and Sir Peter Wilmshurst , the tenacity of Sense about Science and the high profile Libel Reform Campaign Group, I suspect politicians would still be trying to find ways to fudge the complex balance between protecting reputation and freedom of speech.
For politicians, media organisations, business, celebrities and the wider public, issues of public interest and serious harm are often difficult to quantify. But honest opinion and peer-reviewed statements are scientists’ bread and butter. In science, the review of evidence inevitably requires assessment and opinion. That is why peer review is at the very heart of a robust scientific society.
In 2008, Simon Singh decided to face down the defamation claims by the British Chiropractic Association. He had questioned their evidence that traditional chiropractic treatments were effective for treating childhood conditions like asthma.
His stance led to one of the most effective campaigns for legal change seen for over a century. He stood against the worrying trend of silencing scientific challenge by the use of expensive defamation laws. Indeed, as Nature commented, ‘for every case that comes to court ... there are many more in which scientists who lack the resources to fight just quietly back down or worse, censor themselves even before publishing’.
The commitment by all three major political parties, led by the Liberal Democrats, in their 2010 manifestos for libel reform was a crucial step. Though the journey via Lord Lester’s private Members Bill, three public consultations, two working groups and seven parliamentary debates may have delayed progress, such steps meant that the final Bill was, legally, relatively uncontentious.
It was therefore exceptionally frustrating that an amendment by Lord Putnam was introduced late in the House of Lords to include a legal provision from the Leverson Report to coerce newspapers to engage in compulsory arbitration. Fortunately common sense prevailed and the Defamation Bill completed its passage before the end of April.
Has everything the science community sought been achieved? The government made clear its desire to make sure scientists and medics, consumer groups and NGOs who wished to speak out about evidence, could do so without risking ruinous legal proceedings. That has been largely achieved. A crucial last minute amendment, to extend the legal defence against defamation to peer-reviewed statements in scientific or academic journals which are published in electronic form, was also agreed.
Less high profile, yet of fundamental importance to the scientific community, was another last-minute clause which would require corporations to show financial harm before they could bring a case for defamation. It also puts into statute the Derbyshire principle which established that government bodies should be open to uninhibited public criticism and therefore do not have the right to sue for libel. Unfortunately that principle was not extended to private contractors delivering public services, though there was agreement that a combination of human rights legislation and common law would deal with the anomaly.
The broader public interest defence, which allows the public to comment on evidence, is not included. That may continue to have a chilling effect on journalists and those of us who are lay commentators on scientific matters. Great care will have to be exercised to make sure peer reviewed evidence is used as the basis for comment. But considering the starting point for this important legislation, both scientists and the public have won an important victory.