So, this week some of us wrote about the problems of English (and Welsh) libel law. At the same time, a couple of new incidents of scientists falling foul of the libel laws were given publicity in the British press. If the scientists lose, it would signal that (until the laws are changed) we would be unable to make criticisms of other scientists, or those using science in their business.
A suit against Peter Wilmhurst has been going on for some time (but see the recent addition in that story), after he questioned the results from a trial of a medical device. Now, according to The Guardian, a similar suit is being threatened against Dr Dalia Nield by Rodial Limited for comments of hers that were reported in The Daily Mail. She had been quoted as being sceptical about the efficacy of a cream that Rodial claimed could increase breast size.
Nield’s comments are pretty standard for the sort of article that was penned: a bit of controversy was added by quoting an expert (no doubt in a white lab-coat) saying that they weren’t sure that the cream worked. Even though we’re a long way from the action even coming to court (and it may not even get that far), the effect of the threat may be felt: legal costs are so high (Simon Singh won his defence against the BCA, but it still cost him £20k in legal fees) that even having action threatened can be a dis-incentive to comment. Would you want to suffer the threat of being dragged through the courts, and made to pay even if you won?
The Singh and Nield cases are both about scientists communicating to the public in public fora. But libel laws have also been used within the more rarified scientist-to-scientist discourse. A couple of years ago, a paper by Francisco Lacerda and Anders Eriksson, both working in Sweden, was removed from the website of the peer-reviewed International Journal of Speech Language and the Law, following the threat of legal action by an Israeli company: Nemesysco Limited. Here is legal muscle being used against the heart of the scientific process: asking whether other peoples’ work is valid, and criticising any problems (although it’s clear even from that the abstract Lacerda & Eriksson didn’t just say that the company’s machines didn’t work, they went a bit further. In the full text they even use the dreaded “bogus” word).
The cases above are all at the intersection of science and commerce: companies and other groups protecting their interests. But the latest case to appear in the press is rather different. First, the people being sued are the RSPB. Second, the people bringing the suit are private individuals, not some big company. The case is also about scientific criticism, and not a even public pronouncement.
There is surprisingly little about this case online, but from the Telegraph’s report the gist seems to be that a pair of amateur birders and conservationists, Gordon and Christine Bowker, published a paper about declines in black grouse and predation. Some scientists working at the RSPB criticised the work in “internal email and two letters [to The Forestry Commission and Severn Trent Water]“, suggesting that the work may have lead to a decline in population numbers (I haven’t seen the letters or emails, but from the paper, I’m guessing that the concerns surround handling of chicks, which may have adverse effects). The Bowkers are suing because they claim that
the RSPB had “maliciously” damaged their reputations by making them appear reckless and incompetent in their work
To me (and, again, I haven’t seen the text that is the basis of this action), this looks like normal scientific discourse: group A does something, group B thinks it’s dodgy, and write a criticism of it. Usually, of course, group A would respond to defend their work, and the rest of the community would sit on the sidelines munching popcorn. If the judge decides against the RSPB, it implies that any criticism of a piece of work lowers the reputation of those who did it, and hence is defamatory under English (and Welsh) law. In other words, if you criticise another scientist’s work, you could end up in court. But how then are we to correct work if we can’t even criticise it without a huge legal bill? All those correspondences in the journals that ask questions about a paper could be responded to with a letter from a lawyer, rather than the scientist who’s work is criticised. Hopefully the judge will decide in favour of the RSPB, otherwise we’re in trouble (or if she finds against the RSPB, there is enough to the story that we haven’t heard that it doesn’t set a precedent).
This leads to the obligatory request to support libel reform, by signing the petition. The UK government is talking about reforming the law, but (as the Science is Vital campaign showed), lobbying is important: we don’t want the government to decide it has other priorities.
Finally, there is one big irony I find in all of this. The purpose of defamation law is to protect the reputation of people who are defamed, But, as the BCA found when they sued Simon Singh, the act of suing can often do much more to harm your reputation. There will clearly be times when a libel action is appropriate: some things can be said which will genuinely harm a reputation but be false. But although being quick to send in the lawyers may work at a legal level, it can be a PR disaster. One wonders then, can an organisation sue itself for destroying is reputation by bringing an action? Could the GCC (the General Chiropractic Council) sue the BCA for trying to bring an action that lead to one quarter of chiropracters being reported to the GCC for their behaviour?