Could Libel Law Stop Science?

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?

About rpg

Scientist, poet, gadfly
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10 Responses to Could Libel Law Stop Science?

  1. Austin Elliott says:

    "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?"

    Heh… interesting thought. I am pretty sure, though, that as an official regulatory body established by statute the GCC is  formally prohibited from suing, at least for defamation or “damage to their reputation”.
    Completely agree with your central premise that the action the authors of the bird conservation study are taking seems intrinsically inimical to the scientific process. I too rather wonder if their taking legal action will enhance their reputation, or whether it will do precisely the opposite…

  2. Thomas Ehrich says:

     "If you criticize another scientist’s work, you wind up in court" — so does this mean that anyone who does peer review in England or Wales is opening themselves up to a lawsuit? From the above post, it would seem that way. I’m no fan of peer review, but I don’t think that the threat of a lawsuit is the way to end its use….

  3. Bob O'Hara says:

    IANAL, but that’s my impression. But there are a bunch of caveats:

    1. IANAL
    2. the RSPB were being accuse of making their criticisms maliciously
    3. there is a defence of "honest criticism". I would imagine that most peer reviews would be considered as "honest criticism", unless there was evidence of malice in making the comments.
    4. IANAL
    5. You don’t even have to be in the UK, it’s enough that your reputation is lowered in the UK. I guess this would mean that one of the editors would be in the UK (as comments are confidential).

    TBH, I think I’m looking at a worst case in this post: I wouldn’t unduly worry about it unless the ruling in the RSPB action really goes against them.

  4. Austin Elliott says:

     I doubt "standard anonymous peer review" is ever in danger of attracting a defamation claim, mainly as, in general, the reviews are not published
    The interesting aspect for me is the idea that the risk of defamation claims might make it much harder to get people to do open peer review.  
    Although, to be fair, the Appeal Court Judges in the Simon Singh case made it quite clear that they thought  – in the words of the American Judge Frank Easterbrook that they quoted (re-quoted here, among other places):

    "Scientific controversies must be settled by the methods of science rather than by the methods of litigation. …"

    So in the libel claim Bob discusses, the legal issue would probably hinge on whether the criticism was a “scientific controversy”. In the light of the BCA v Singh ruling, to have a realistic chance in the defamation claim the (bird conservation) plaintiffs would likely have to try and convince a court the criticism was personal rather than scientific. If it is scientific criticism, then post the BCA v Singh decision “honest comment” would apply.
    PS IANAL Either. So Pinch of NaCl etc.

  5. Bob O'Hara says:

     I doubt "standard anonymous peer review" is ever in danger of attracting a defamation claim, mainly as, in general, the reviews are not published.

    Does the stuff have to be published? I don’t think the RSPB letters were, and the advice I’ve seen doesn’t specify publication. I guess if I wrote to your employers and defamed, it could still be covered under libel law (which makes sense, I think. Imagine if that caused you to lose a promotion, for example).
    From what I’ve read, it would be enough that the criticism was malicious, even if not personal, for it to be libellous. Not that any negative manuscript review has ever been motivated by anything but the purest scientific intentions. Oh no.

  6. Austin Elliott says:

    I would think anonymous peer review under standard journal type conditions would count under what English law calls "qualified privilege" – that is, it is in the mutual interest of the reviewer and the journal for the reviewer to be candid (though non-malicious…). So any statement made there about the work of Dr X (the author) is likely covered by privilege. However, if there is a leak from the process:

    "Oh, you know, the referees have said that Dr X’s work in unethical"

    Then the wider leaking could be found to be defamatory.
    If the RSPB case ever got to court one could perhaps imagine a "qualified privilege" defence, as well as the "fair / honest comment" one, the latter now likely strengthened by the Singh case judgement. 

  7. Bob O'Hara says:

     Ah, I guess qualified privilege would cover it – I had read something about that defence, but wasn’t sure how far it extended. Phew.
    BTW, the RSPB case was in court last week. I don’t know how long we’ll have to wait for a judgement.

  8. Mike Fowler says:

    ust a couple of things to add.
    (1) The doi link to the original grouse article is busted
    (B) Plaintiff’s often (though not always, given "no win – no fee" agreements) have to foot legal bills. Scientists, (aka well educated paupers), often don’t have big enough feet to start footing those.
    I think this Grouse case has made it to the newspapers simply because it is so unusual. I agree that the English libel laws need to be adjusted, but i’m not sure this case is the best example to illustrate why. But keep us posted on the outcome!

  9. Bob O'Hara says:

      Thank, Mike – I’ve repaired the link.
    Depending on the full story, the fact this got to court illustrates the problem with libel law: if there wasn’t anything malicious in the letters, it still means one can be dragged to court to defend yourself. Remember, even The Grauniad will try to settle rather than go to court (as it had wanted to in the Simon Singh case). It’s all enough to make me want to become a libel lawyer.

  10. Austin Elliott says:

    “It’s all enough to make me want to become a libel lawyer.”

    Yes, I often suspect I’d have been a far better / more successful lawyer than I am an academic.  Too late now, though.

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