Libel Reform: steps forward

Today sees the publication of a very important report on libel reform.

The report is from the Parliamentary Joint Scrutiny Committee, which has been considering the government’s draft defamation bill in the light of oral and written evidence from interested parties. It outlines proposals for refinement of the draft legislation before it passes through Parliament and, hopefully, into law.

The new legislation will be the first wholesale reform of the libel laws of England and Wales since 1843. This is a big deal because of the excessive power that the present law gifts to the wealthy to muzzle free speech. Our libel law is so bad that President Obama has enacted legislation to prevent US citizens being ensnared by it. I’m writing about this issue here, as I have done several times before, because libel is a serious matter for many people including scientists and science bloggers. Please see this post for background information.

I haven’t had time to digest the report but did get a preview of the press release that has been issued today by the Libel Reform Campaign. Here are the key points:

The Joint Scrutiny Committee’s report published today urges the government to strengthen the draft defamation bill in line with proposals from the Libel Reform Campaign.

The Libel Reform Campaign… calls for the government to legislate now and welcomed the Joint Committee’s recognition that the laws need “rebalancing”… The committee is the latest body to support reform. Over 50,000 people have signed the Libel Reform Campaign’s call for a government bill to reform English libel law, at the last election all three main parties made manifesto pledges to change the law and in May 2010 a commitment to reform became part of the coalition agreement.

The committee has made a number of recommendations in line with the Libel Reform Campaign’s proposals namely:

Corporations The committee accepted the Libel Reform Campaign’s concerns over the imbalance of resources between individuals and well-resourced corporations in libel and the “chilling effect” on free speech of libel claims from companies. Their proposals aim to introduce a new hurdle to make it more difficult for companies to use their financial muscle and the threat of court action to silence critics, which may reduce the problem.

Serious and substantial harm The campaign argued that clause 1 of the government’s draft defamation bill should be strengthened to strike out claims for damage that is neither serious nor substantial and does not offer any real prospect of vindication. The committee accepted this stating that a revised clause 1 would: “ensure that trivial cases are weeded out at an early stage by introducing a stricter test for determining whether a case is serious enough to go to court.”

Public interest defence The committee recognised problems with the current public interest defence and noted there was “universal support” for a dedicated defence. Whilst the committee made proposals to strengthen the public interest defence in the government’s draft defamation bill, the campaign believes more should be done to ensure that the defence is robust and accessible.

Internet Our campaign developed proposals for a court-based take-down procedure to prevent extra-judicial censorship by threats to ISPs and web hosts:  a variant of this scheme has been proposed by the committee.

Reducing the cost of libel cases Libel cases in England and Wales have been estimated to cost 140 times the European average. The committee has been explicit in its criticism of the government for not doing enough to reduce costs. In line with our Alternative Libel Project, the committee has told the government to ensure disputes are resolved rapidly by mediation or arbitration such as Early Neutral Evaluation.

There are some very good reforms in these proposals but Sense About Science (SAS), a member of the Libel Reform Campaign, still has reservations. In particular, SAS campaign manager Síle Lane writes (my emphasis in bold):

…while there is a recognition of the problems with the current formulation of the public interest defence, and some good observations about the need for context, the proposals from the committee haven’t resolved the need for a robust public interest defence. Politicians need to address this urgently in taking the bill forward.

This is a key issue for scientists, and in particular for medical researchers and publishers, who may otherwise find it difficult to challenge claims made my drug or medical technology companies about the efficacy of their products. Criticism of such claims is often clearly in the public interest. Celebrated cases in this area have involved Ben Goldacre, Simon Singh and Peter Wilmshurst, all of whom have suffered the stress of libel actions against them. None of these actions were successful but they nevertheless exacted fearsome financial and emotional penalties.

A sturdy public interest defence is vital so that the favour the law currently shows to wealthy individuals or corporations, who can silence critics merely with the threat of a libel action, is replaced by a legal perspective that takes proper account of the weight and process of scientific argument. It is necessary to ensure  access to information that the public has every right to know.

This means that the campaign goes on. And there is still time to sign the petition.

Update (19 Oct; 00:50) – Recommendations that the peer reviewed scientific literature be given the protection of ‘qualified privilege’ are discussed on pages 32-34 of the report. (Link to PDF is in first line of the post).