Libel Reform

December 11th, 2009 by Ben Goldacre in bad science, legal chill, libel | 23 Comments »

Yesterday morning I helped to launch the libel reform campaign in parliament with Index on Censorship, English PEN and Sense About Science. To be fair, the best line came the day before at the celeb launch from Alexei Sayle, who explained that he was once sued for libel by someone, and it cost over £100,000 to defend: “it would have been cheaper”, he explained, “if I’d just stabbed the f*cker.”

The report is extremely good and I encourage you to read it here:

libelreform.org/our-report

Libel is an issue close to my heart. I was sued by a pill salesman called Matthias Rath last year in a case which took 19 months to resolve, and cost the Guardian £535,000 to defend. We got £365,000 reimbursed: that means the cost of winning was £170,000, slightly less than the cost of the average house.

Then there is Simon Singh’s case. Then there is the case of Peter Wilmshurst, a medical academic who is currently defending himself against a charge of libel brought in London by a US company over comments he made to an US journalist working for a US publication about a US trial he was involved in. He expressed concerns about what he regards as inconsistencies in the data, and has raised the possibility that the medical technique being studied may not have been successful in some cases. He is defending himself single-handedly, risking his family’s home and livelihood in standing up to this company, after the Medical Defence Union declined to support him.

Our libel laws are a menace, but not to journalists, or even to doctors: they are a menace to you. Put very simply, when you restrict the free criticism of medical ideas and practices, you harm patients and the public.

Medicine is a sinister business, because it is possible – quite accidentally – to do great harm, even when you intend to do good. This is why all medical practices and ideas must be subjected to free and intense critical scrutiny, and that is a process you can see in any medical journal, at any hospital journal club and in any scientific conference, where academic presenters frequently find their claims being attacked in an extremely direct and uncompromising fashion. This is not incidental, and it is not merely tolerated: this is the core of medicine and science, but our draconian and unpredictable libel laws mean that even when people strive to be even-handed, these vital critical discussions are conducted in an atmosphere of fear and uncertainty.

Anyway, here is some news coverage:

BBC NEWS Comic Dara O Briain says libel laws ‘quash dissent’

The Times Scientists urge reform of ‘lethal’ libel law

The Independent Comic Dara O Briain lambasts ‘bully’ libel law

The Mirror Dara O Briain wants libel reform

THE UCL provost: libel law is stifling academic freedoms

New Scientist blog Campaign to reform English libel law launched

Press Gazette ‘Libel can kill – reform it now’

The Press Association Dara O Briain wants libel reform

You can see an older video of the ABSW event here where we each make the case for libel reform.

I would encourage you to contact your MP and let them know what an easy, obvious win reforming of this dumb law would be. You can also add your voice at www.libelreform.org, and if you want a present for a friend at Xmas you can donate to the campaign at www.justgiving.com/bookfund.


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23 Responses



  1. jesroddy said,

    December 11, 2009 at 7:27 am

    As an outsider, it seems to me that the issue in UK is not the transfer of the burden of proof to the defendant, but rather the inadequate awarding of costs. If I was to claim that Ben G regularly eats Pandas for breakfast it seems entirely reasonable that I would be required to prove it in the court.

  2. benjeapes said,

    December 11, 2009 at 10:10 am

    I would love to have been able to sign the petition at www.libelreform.org. Unfortunately, clicking the “sign the petition” button takes you to a pre-filled in letter to my MP – the petition itself seems to vanish. I resent the assumption that I haven’t already written to my MP, or that if I have it’s a good idea to spam him with duplicates. Or maybe the letter IS the petition? Either way, at best it’s not clear and at worst you get the distinct feeling of being manipulated. It seems odd for a campaign based on notions like transparency and being straightforward. I ascribe this to bad management rather than malice, but someone with a clue needs to overhaul the website. I will sign the petition when the “sign the petition” button takes you to a freakin’ petition to sign.

  3. HowardW said,

    December 11, 2009 at 1:07 pm

    I went to sign the petition and had the same reaction. I want to be able to sign the petition without being forced to send an email to my MP. This seems daft – even more so in my case as my current MP is standing down at the next election.

    Why not generate the letter and allow people to copy it as text, but don’t force them to send it?

    Howard

  4. mikey2gorgeous said,

    December 11, 2009 at 1:35 pm

    I presumed the first part (filling out name, email etc) was the bit where you ‘filled in’ the petition.
    I was then taken to a page with the letter – isn’t it optional to do the letter sending?
    You may be right that it’s not clear, but I think this is a hasty website built by someone under time pressure & it probably wasn’t even considered.

  5. silelane said,

    December 11, 2009 at 2:07 pm

    Hi, Sile from Sense About Science here

    I understand that Mike Harris at the Libel Reform coalition is working to sort out the problems as quickly as he can.
    You’re right – it should be clear that when you sign up, you have indeed signed the petition.

    And there should be an extra step where you choose to write to your MP.

    He’s working through other feedback too.

    Sile

  6. AngryATHEIST said,

    December 11, 2009 at 2:52 pm

    Isn’t truth the best defense against libel/slander/defamation?

  7. deadyeti said,

    December 11, 2009 at 3:01 pm

    I will also not be spamming my MP (who i already know is fully aware of the need for reform)
    so it is with regret that i say i will not be signing the petition.

  8. cloggingchris said,

    December 11, 2009 at 3:22 pm

    I’ve just signed the petition, and there’s an opt out button – don’t have to send the message to your MP.

  9. le canard noir said,

    December 11, 2009 at 3:26 pm

    @AngryATHEIST “Isn’t truth the best defense against libel/slander/defamation?”

    Yes of course – but as Ben explains, you have to be prepared to stump up hundreds of thousand of pounds for the privelige of showing you are speaking the truth – and when you have done so, you will not get a significant fraction of that money back.

    So, next time you are issued with a libel writ where you can prove you speak the truth, what will you do?

  10. ignoranceisalearnedbehavior said,

    December 11, 2009 at 4:02 pm

    adding to the above, even if you think you’re justified and telling the truth, there’s no guarantee that the judge will construct the language you used in the way you intended…

  11. pseudomonas said,

    December 11, 2009 at 4:53 pm

    I also would like to sign the petition without spamming my MP, who has spoken fairly extensively in favour of the project anyway.

  12. Evan Harris said,

    December 11, 2009 at 5:07 pm

    Thanks for letting us know about this problem – which was inadvertant – has now been solved so you can sign the petition, get confirmation and write on the pedge wall and only then seperately decide whether or not to email your MP. No MP considers an email from a constituent to be spam or even unwelcome as they have systems for replying to them. The more they get, the more pressure they put on their party to give them something sensible to say in reply. I have had 30 emails already and David Howarth in bloody Cambridge has had 60. Even if MPs are retiring or you know they are supportive please consider enmailing them as the former group still put pressure on the party leadership and the latter like to receive messages they can agree with!

  13. Terrible Al said,

    December 11, 2009 at 5:45 pm

    Well, Mr Howarth just got another! Does the website have any way of tracking how many letters are being sent to each MP?

  14. scotslawstudent said,

    December 12, 2009 at 10:19 am

    jesroddy sets out the entire problem right there in the first comment. If you could condense a defamation action down to the playground situation of:

    “Andy: Bobby called me a poo poo head!
    Bobby: But you are a poo poo head
    Teacher: Can you prove that?
    Bobby: Yes, here’s some evidence”

    we’d have very little problem in the vast majority of cases.

    The big problem is that all the costs that Bobby incurs arguing and proving that Andy is a poo poo head generally fall on him to pay. Andy pays his own costs which can often amount to just about 1) quantifying his losses and 2) paying someone to represent him in court. People aren’t particularly bothered about saying true things about other people in case they’re found guilty of defamation, it’s the fines (if you lose) and costs that winning and losing incurs that chills them.

  15. PhDChem said,

    December 12, 2009 at 4:21 pm

    I’m curious as to how it costs so much to defend these cases (I live in Canada), could somebody please explain to me how these cases go to several hundreds of thousands of dollars? In addition, if you’ve proven that you’ve spoken the truth how is it that the person who sued you doesn’t have to pay your full costs?? I have been sued once previously and that individual ended up having to pay all of my costs as their case was baseless, I know that Canadian law is based on British law, so I don’t see why this wouldn’t occur for libel cases too.

  16. Veronica said,

    December 13, 2009 at 12:00 am

    “If I was to claim that Ben G regularly eats Pandas for breakfast it seems entirely reasonable that I would be required to prove it in the court.”

    I think – and tell me if I am wrong, that the English libel laws would say that the onus is on Ben G to prove in court that he doesn’t eat pandas for breakfast.

  17. Lifewish said,

    December 13, 2009 at 6:36 pm

    Veronica: I believe that’s incorrect. My understanding is that Ben G would only have to prove that jesroddy said nasty things about him.

    The burden is then on jesroddy to use the justification defense – e.g. to prove that his statement was true and that he knew it to be true at the time he wrote it. If jesroddy can’t provide documentation of Ben G’s panda-eating, he is screwed.

    You can see how they came up with a system like this, but there’s definitely something dodgy about the reverse burden of proof. Especially when, as previously mentioned, English judges have a tendency to focus on the most extreme possible interpretation of a statement.

    Disclaimer: IANAL, I just read the wikipedia article. There’s also a good commentary by Jack of Kent.

  18. DrJG said,

    December 13, 2009 at 11:24 pm

    @15

    PhDChem – having followed some of these cases, the only explanation that I have been able to come up with is to reaffirm the old saying; The Law is an Ass. One or two judges seem determined to maintain that status quo, though get upset when criticized for doing so:

    www.guardian.co.uk/uk/2009/dec/01/david-eady-privacy-trials-media

    though if you read how determined that particular judge can be to make things hard for the defendant, you might find it hard to have much sympathy:

    www.guardian.co.uk/media/2009/dec/07/desmond-libel-law-ruling

  19. elvisionary said,

    December 14, 2009 at 10:16 am

    @DrJG

    Mr Justice Eady may have got it horribly wrong in the Singh case, but I’d be wary of siding with all those who attack him. To me, privacy and libel raise very different issues, and the tabloid media have a very strong self-serving interest in attacking those who might place limits on their ability to intrude into people’s private lives.

    Judges have to work within the law as it stands, building on previous precedents. So the particular criticisms in the second link seem a bit harsh – if the precedent is that he has to put it before a jury if it wouldn’t be perverse for them to see it as defamatory, then that’s what he has to do. If we want that to change, legislation is needed.

    @PhDChem

    Lawyers are very expensive, and I suspect that some courts are reluctant to further penalise unsuccessful plaintiffs. Much as we might see libel cases as sinister attempts to silence legitimate criticism, often the plaintiff will be responding to what they see as an unwarranted slur on their reputation. And in cases that come to court, the boundary between the two positions might be very blurred. Added to which, the true cost of defending a libel claim – in time, stress, and most importantly the need to finance the defence on the assumption that you will ultimately win – may be much larger than the directly attributable financial cost. If you can’t rely on the courts not to come to a perverse view (e.g. the Singh case), then you’re taking a huge financial gamble. It’s easier to cave. That’s why it’s critical that any reform requires a mediation phase before anything comes to court.

  20. DrJG said,

    December 14, 2009 at 10:55 am

    @elvisionary

    I agree that “my enemy’s enemy” is not necessarily my friend – I faced the worrying situation, when looking for a decent report of the Bower trial, of perhaps having to agree with the editor of the Daily Mail. In my defense, I will say that the Moseley case which so upset Dacre is one of the few high-profile Eady cases where I agreed with the outcome.

    But it is precisely the criticisms in my second link that worry me about this particular judge – when the defendants get a ruling from the Court of Appeal which mentions risk of a miscarriage of justice if Eady’s ruling stands, and he still appears to try and avoid carrying out their instructions, then it seems to me that he is more interested in imposing his own personal interpretation of the law, and placing this above the clearly expressed opinion of three more senior judges.

    As for a court having sympathy with an unsuccessful plaintiff, if they believe that they are truly serving the cause of Justice, then perhaps they should have sympathy for the innocent defendant, if the court truly believes them to be innocent. Of course, Justice is a pretty shaky concept when the amount that one side can throw at the lawyers is likely to play a major part in deciding the outcome. Years ago I suggested that, in civil cases, each side should announce how much they were prepared to pay in legal fees, then that money would be divided equally between their legal teams. Of course, there are all sorts of problems with That approach too, though I doubt it could be any worse than the current situation, but I suspect its only important weakness is that no-one with a law degree would touch it with a bargepole.

    Finally, I am afraid that I think a mediation phase – unless the mediator has the power to impose a ruling, which makes it a de facto trial – is only going to help in those cases where the claim is based on an honest feeling of grievance – justified or not. It will have no effect where the desire is to stifle legitimate criticism, as in those cases it is the legal action which serves the plaintiff’s purposes, not the outcome of any subsequent trial.

  21. mikewhit said,

    December 14, 2009 at 6:52 pm

    What I find annoying / unfair is that the prosecuting legal people can make up their own amount of costs, but if you defended yourself and won, you would only get expenses and loss of earnings – not a commensurate sum to that of the other side.

    Could be a nice (if risky!) way of earning a few years’ income in one go, otherwise …

  22. Ezenow said,

    December 18, 2009 at 1:11 pm

    I find it quite amusing to read about journalists calling for libel law reform. If you do not want to be sued for defamation then do not write defamatory words. Quite simple really. Newspapers are insured against libel so all this talk of defending a claim costing money is nonsense. It is far more important that people have a way of redressing lies written about them than protecting the right of a few hacks to write bollox. Otherwise how is someone who does not have access to the publishing power of a news corporation get their side of a story across? If you are a responsible journalist who checks facts and presents a balanced argument instead of regurgitating PR spin and news agency tikkers you have nothing to fear.

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