My most recent post, “Respect my Authority!”, which was an attempt to explore the origin of scientific authority, has been removed by Nature Network because their legal advice deemed it to contain some dubious assertions.
The matter was handled with great care in phone conversations with Corie and an email from Timo. I am grateful to them for the consideration they have shown. I have no doubt this was a tortuous decision. I’m relatively new to this game and have no desire to be sued or to cause serious problems for NN. So I decided to take the legal advice on trust and agreed to the removal of the post.
Ironically, the wider intent of the piece was to assert that scientific authority derives largely from the culture of open and robust debate that exists within the scientific community. But that culture is under threat, at least when it seeks to engage with the wider society. That was already clear from what I heard at the Skeptics in the Pub meeting about the Simon Singh case, which has brought to light the powerful reach of English libel law. Following my account of the meeting, Maxine set up a forum topic, Using the law to stifle scientific debate, to foster more discussion. I urge you to take a look and to peruse some of the links to recent newspaper articles on this topic.
It is certainly feels odd that my post is the first on NN to be stifled by this law. I’m going to have to think about what this means for future blogging activity. I don’t yet know exactly what to say – or how to measure my words in future. This development seems to introduce a level of self-censorship that I had not been fully aware of before. If I can find a positive note, it will make us rely even more heavily that we already do on solid evidence.
And I am going to offer enthusiastic moral and material support to the campaign to reform English libel laws.
I think it’s a sign of the times rather than any adverse reflection on you Stephen. I think it’s good that you posted your piece and tested the boundaries. But when the law is an ass (and UK libel laws do seem distinctly asinine) then open discussion is the loser.
This is all very odd, I can’t see what would have caused lawyers to suffer from conniptions. Was the decision based on precedent set by the Singh case?
I understand NN’s caution, but if the reach of the libel laws is this far, something really needs to be done.
It’s twenty years ago since a fatwā was issued illegally on a British citizen, Salman Rushdie. Just for words on a page. But fascistic attempts to crush free expression have not gone away. Ironically, it is in Britain where they seem to be more allowable by legal means.
I couldn’t see how your post, to any reasonable person, was grounds for action under law. Fortunately I had a copy in my cache, and will be forwarding it to my MP. I’ll probably excerpt the letter and post it here.
Very sorry to read this post, Stephen, my sympathies.
This sucks.
It was a very good post, Stephen – I just didn’t comment because last week was rather busy (so I couldn’t come up with anything sensible). Concerning it being deleted, I am guessing that it was a combination of timing and possibly overcautious corporate lawyers? I do hope this feeling of uneasiness doesn’t persist.
Stephen, can you repost Respect My Authority! on another page and link to it? As an American I find the UK libel laws to be very alarming. A few years ago I saw the great documentary McLibel (preview / full film) which showed the multiyear court case that two activists had to go through in order to defend a flyer they handed out in London stating that McDonald’s food was bad for you. How did these draconian laws get started in the first place? They have a very chilling effect on free expression and I’m a little ashamed of NPG for asking you to remove your opinion.
Eric, it’s been reposted (check Richard Grant’s FriendFeed, um, feed).
That’s absolutely bloody ridiculous!
I thought Stephen’s post (inasmuch as I remember it ) was fine and quite unexceptional. The first I heard of this was when Corie emailed me, as someone who’d commented on the post, to say the post had been removed, along with all its comments. Even though I’d been to a libel seminar given by Nature’s lawyers to warn us of the differences between English and US law, and so was sensitive to the fact that in England there is less freedonm of speech than in the Colonies, I remain mystified.
I’d just like to echo what everyone else has said – fine post and perfectly sensible, in my my opinion. Over the last couple of weeks we have heard so much about the questionable behaviour of those who watch over us. The fact that this has had to be removed to conform to laws that these people have presumably helped instigate is depressing.
I’ve worded that quite carefully, wary of saying anything much – I feel like I am being stifled already.
I reads the post on Richard Grant’s feed and cannot find anything in there that could possibly constructed as libel…
My thanks to all the commenters above – much appreciated. Apologies for replying rather late but I was struck by a short-lived stomach bug yesterday afternoon.
I was certainly surprised at the nature of the legal advice, but I think Corie and Timo were too. I don’t want to go into specifics but will leave it to Corie to furnish any additional details, subsequent to her initial statement, which appeared on the NN Bloggers forum (accessible only to bloggers on this site).
The most important issue here is the impact of English libel law on our freedom to discuss scientific matters. This is not new by any means (see my earlier post and this article by Nick Cohen in today’s Observer).
We are now becoming fully aware of its impact, which is utterly insidious. And I think we need to join any serious effort to get it reformed.
Stephen you have all my sympathies. It would be great if something positive turns out of this: that we learn more about the legal issues touched on by discussing science online (and thus avoiding painful and pontentially expensive encounters with this later on), and that there might actually be an effort to reform this.
You have my sympathies as well, Stephen. I’m sure NN are just being cautious, in an increasingly litigious climate – the same trends are apparent here in the US. Bloggers are being sued for defamation, invasion of privacy, and copyright infringement, and in a recent (utterly banal) popular culture example, a blogger was sued for writing gossip about Anna Nicole Smith’s mother. The blogger spent a few days in jail, for contempt of court (not the blogging itself).
As if there weren’t enough a) inane lawsuits in Texas, and b) self-appointed control freaks pat-rolling‡ the blogosphere.
‡ patronizing + trolling
Apart from being one of the commenters on Stephen’s disappeared post, I am also something of an amateur aficionado of wordings, meanings and libel laws these days – mostly as a result of commenting online about the BCA vs. Singh case. I also edit a magazine for the Physiological Society these last several years. We have not been sued – yet – even without the luxury of high-priced legal advice. (Of course, with a circulation of around 2600-2700, not getting sued probably just tells you that we never write about anyone particularly famous, and/or that no-one litigious reads us.)
Anyway, with my editorial hat on, I would have probably re-worded one of Stephen’s sentences to a slightly more “bland and cautious” paraphrase of the original Guardian article he was referring to. But it would be very minor. For me, the central points remain that:
(i) Stephen was writing a piece with a clearly serious intent, and with no central intent of a “sting” directed at any of the people he named as examples of various kinds; and
(ii) pretty much exactly what he said about both the persons in the news who NPG’s lawyers might have worried could sic M’Learned Friends on him/them had previously been published in an English national newspaper and on the newspaper’s online site.
Now, while that may not be a defence to a legal action under the ludicrous English Defamation laws, it seems a strong “free discourse” argument. Do publishers not stand behind free discourse? And furthermore, exactly how likely is it that any of the people named would actually sue?
I am also slightly puzzled why NPG didn’t just ask Stephen if he would amend the post slightly to de-heat any particular phrases their legal advisers were having conniptions about. After all, that is what editors do, as Maxine Clarke has alluded to elsewhere on this site, and it is what would have happened to a print article. I can see that they perhaps would not want to take on wholesale the role of “legal screening” user-generated content at NN, but they had, after all, already gone as far as putting Stephen’s post under the libel-o-scope.
BTW, I guess Corie Lok may have explained this all elsewhere. I am not part of the NN bloggers group, so if anyone who IS gets a more detailed / convincing explanation of the legal advice, I would be interested in seeing it. It will all be grist to the mill of that part-time law conversion course I’m thinking of taking as a hedge against future contraction in the UK University sector.
Thanks Martin and Kristi – I too hope that something positive will come.
Austin – I very much appreciate the application of the legal side of your brain to this. I think I perhaps could get 95% of my points across with more careful wording, so I shall explore this option. But you are absolutely right (and I’m sure the NN staffers would enthusiastically agree) that we don’t want to be getting into pre-screening of posts.
I guess Corie will pick up on this conversation tomorrow so she may want to indicate if any clarification is going to be issued beyond the private forum.
bq. BTW, I guess Corie Lok may have explained this all elsewhere. I am not part of the NN bloggers group, so if anyone who IS gets a more detailed / convincing explanation of the legal advice, I would be interested in seeing it.
Alas, we haven’t been told much more. I assume Corie is spending a weekend away from the computer, so hasn’t given us more details. I’m sure when she get back, it’ll become very clear to her that we want to know more.
Probably clear guidelines to NN bloggers from the lawyers about this point would be helpful for us to exercise our own caution in ways that allow us to express our opinions appropriately. What were the criteria, after all?
It’s been pointed out to me that any post in English is subject to English libel laws, even if the venue/blog is not hosted in England. So you’re not safe if you blog in America, should an English person or entity object to your wording. If found this the most surprising of all. Can someone confirm that this is actually true? Seems unenforceable.
It seems true—but at least it’s not a criminal offence, as might happen in Australia.
Reading that page, it seems we’re not as bad as the Crazy Canucks. Thank goodness for small mercies, eh?
My understanding is that anything that can be read in England is subject to the English libel laws, no matter where it originated from. Given lax nature of the law, which places the burden of proof on the defendant, this has allowed foreign nationals to sue other foreign nationals for statements made in material that was not even published in English but which was made available in this country (_e.g._ importation of books, sale of foreign newspapers). See here for some specific examples.
One more cynical member of my acquaintance pointed out that as English lawyers are happily busy prosecuting libel for customers all over the world, there is no central incentive to change the laws — they lead to a serious economic stimulus.
(Oops, was that defamation?)
giggle
Nail on the head?
Jennifer – it is indeed, er, surreal. This is the phenomenon of “Libel Tourism”, see Wikipedia here or this Guardian article. Perhaps the best introduction of all is on Nick Cohen’s blog.
The judge in several of these cases has been Sir David Eady, the same judge in the BCA vs. Singh case, who is England’s most senior libel judge.
Judges in the UK rarely make public statements, but Eady has made it clear that he feels he is simply appropriately enforcing the existing English law. Which makes the case for swift reform of English libel law all the clearer. The European Human Rights Court in the McLibel case made it quite clear how anti-free speech they felt the UK libel law was in practice. Even the English Court of Appeal at an earlier stage of the same case accepted that there might be compelling arguments – like the difficulty of mounting a defence of public interest – for reconsideration of English libel law by parliament…
Answer came there none.
Austin, sorry to reinvent the wheel. I had heard the phrase Libel Tourism but hadn’t put the two together. Thanks for the clarification!
Considering the interest in libel laws and the sensitivity of the CAM community to criticism, it is interesting to read this article in today’s Guardian on reactions to Homeopathy, that has presumably been passed by in-house lawyers.
What a shocking article. I do hope the WHO will take action. I don’t think that piece is libelous since no particular organisation or person is accused of promoting ineffectual remedies for serious diseases like malaria. This issue did get quite an airing a couple of years ago – see David Colquhoun’s blog for details (I see Austin was pitching in pithily even then!).
Stephen, et al.
I’ve been scanning around to see if and how Scot’s law differs from English in terms of Defamation – and came across an article (pdf link) by Kevin F Crombie1, which appears to cover both:
I wonder if Corie, Timo, or anyone else from NN could highlight exactly what it was that arose in the original post that was both false and lowered the plaintiff… to give us a better idea of where this blurry boundary is14.
It would be an enormous shame for people to avoid contributing to NN if they feel the editorial staff are under pressure from legal sources to pull down even remotely sensitive posts in future.
———————
1 found on the IT Defamation in Scottish Law website
12 Sim v Stretch (1936) 2 All England Law Reports 1237 per Lord Atkin at p. 1240, although an English
case, the test has been held as applicable to Scots law also, see _Steele v Scottish Daily Record and Sunday
Mail 1970 Scots Law Times 53._
13 Stair Title 9, Reparation at p.171
14 Do scientists even count as right-thinking members of society? I take that to mean correctly thinking, rather than any political insinuation, except, perhaps, in Henry’s case15.
15 Please don’t bring the full weight of English law down on me for that, HG.
For a look at the kind of things some homeopaths get up to in Africa, and an indication of how complicit the UK homeopathic “establishment” is in this, the best place to start is the blogger Gimpy.
Regarding the WHO, a key to understanding this sort of problem is the fact that WHO has a substantial Traditional Medicine section. Though this talks a lot about evidence, it is widely perceived by sceptics to have a problem with what one might shorthand as “political correctness” – traditional medicine has existed for 1000s of years, in some places this is all the healthcare people have, it is “culturally derived” so criticism of it is culturally hegemonist, etc etc. For more see e.g. here.
Of course, the “Trad medicines” approach at WHO may have started with the best possible motives, and may have done useful things, such as trying to systematise information on the use of medicinal plants. Indeed, some of the “traditional practitioners” may have a place in some settings across the globe in areas of minimal access to proper healthcare, e.g. as a network to get public health ideas to the grassroots.
However… the existence of this bit of WHO has less welcome consequences. In particular, the homeopaths, acupuncturists, Ayurvedic practitioners, chiropractors etc etc in the Western countries have spotted the WHO “opportunity”. They piggyback on, and cultivate, this bit of WHO assiduously, since its existence helps to confers a kind of sheen of retrospective legitimacy on them and their practices – including the crazier ones. Thus homeopathy and chiropractic will happily “badge” themselves as traditional medicine, in the WHO sense. And because “inclusiveness” is part of the WHO traditional medicine philosophy, if they want in, they’re in.
Sadly, this means you get the rather bizarre spectacle of some parts of WHO doing sterling work on public health, vaccination, clean water and sanitation, disease surveillance etc …all while other parts of the organisation are running traditional medicine conferences that I would say help quasi-cultists like the [insert CAM therapy group of your choice] promote themselves as “healthcare professionals”.
I helped write some of that WHO letter, and we were all very aware throughout that we were extremely likely to get sued if we made any specific allegation. It’s very frustrating: there are endless reports of homoeopaths and the like telling their patients that real medicine is bad and evil and wrong, but they’re all very careful to have a disclaimer at the bottom nowadays saying words to the effect of ‘ignore everything I’ve just said and see a doctor’, so it’s almost impossible to nail someone for it.
Although people like Jeremy Sherr and Peter Chappell make it very tempting to have a go sometimes…
Stephen, I haven’t yet commented on your
most recent criminal escapadebrush with lawyers, but when Richard first showed me I only said “Wow.” and I haven’t been able to express anything more coherent since. I’m just quietly reading up on the weirdness of British Libel Law. (Can I say that it’s weird or is that libelous, too?)Legally speaking, Eva, calling it “weird” would be defensible as “fair comment”
@Duncan – thanks for that. Can you say a bit more on how the letter originated? The Guardian article was a little short on detail in that regard.
@Eva – That’s OK Eva, I didn’t know what to say either… 😉
Just a quick note to say that we are working on a public statement explaining why Stephen’s post was taken down (a draft is being reviewed now). And guidelines for the NN bloggers are also in the works.
I live in the US. Suppose I’m sued in an English court for something I wrote on my blog, and suppose I lose the case. Now what? Who will force me to pay a fine; who will come and clap me in irons; who (assuming my ISP has any courage at all) will take my entry down?
I can see mechanisms of enforcement against objects (e.g pulped books) and people who are physically in England, but it’s not clear to me how this will play out online.
Hi Bill, according to this piece in the New Scientist by David Allen Green (aka Jack of Kent), the jurisdiction does (somehow) extend beyond these shores. Though he says that “The state of New York has gone so far as to legislate to prevent English libel judgments being enforced there.” Are you lucky enough to be based in NY?
Hi Stephen and others
Thanks for the kind words about the Blog; this is my first post on this Forum.
I have seen the original article and, under the current state of the English law of libel, I am afraid I can see why Nature’s in-house lawyers would have been unhappy.
There are, of course, an infinite number of ways to defame somebody. But the most common, and the one actually which can be most easily avoided, is to impugn motivations, either in full or in part.
There is a common legal saying – it was used a few times in the Singh preliminary hearing – that the state of a person’s mind is as much a “fact” as the state of his stomach. This is undoubtedly wrong from a scientific/medical/psychological perspective, but it is all-the-same a starting point of English libel law. It has the unhappy consequence that a defendant has to prove wrongful intention as a fact, in the same way he/she would have to prove a stomach ulcer.
Another related pitfall is to (allegedly) mischaracterise a factual situation that would impugn a person’s motivation, for example saying someone has been “exposed” or similar.
It pains me to compliment him too much, but Ben Goldacre’s Bad Science columns are very carefully crafted from a defamation perspective, and they do bear re-reading.
There is generally less danger in just stating veriffiable facts and allowing the reader to see any connections, if any. But even this runs a risk (there is a tricky area of libel law called innuendo), but such cases are harder to bring than when there is an express or implied adverse comment about the motivation of the claimant.
In any case, I look forward to joining the debates here and seeing the draft NN guidlelines for bloggers 🙂
Hi David – many thanks for that comment and welcome to Nature Network. It had crossed my mind at the weekend to email you for an opinion on this but I thought you might already have your hands full. So thanks for weighing in ‘pro bono’! Your remarks bring a lot of clarity (and echo much of what I gathered had come from Nature’s legal team but which others here have not been privy to).
Co-incidentally I am reading Ben Goldacre’s Bad Science book (heavily discounted at the moment – coincidence?) and have been simultaneously impressed by the trenchant nature of many of his statements and the care that he takes in phrasing them. I hope to learn some lessons.
Look forward to more of your input on this topic when the guidelines are published.
And, I very much enjoyed your recent fable about bogus and plethora! Newcomers to this may want to first check out this earlier post for the proper context.
Co-incidentally I am reading Ben Goldacre’s Bad Science book (heavily discounted at the moment – coincidence?)
Are you insinuating something?
Maybe I’m missing something, but unlike everyone else who’s commented here, I do see why Stephen’s post could have been deemed defamatory. After all, among other things, he strongly implied that a well-known and respected British scientist was making trumped-up scientific statements to the media because of a financial interest in a product he/she endorses.
That’s a pretty serious allegation, no? When I read it for the first time, before the whole thing blew up, I thought to myself, blimey, he’s got guts. (By the way, I think that people should be allowed to draw these sorts of connections without being punished, but working with the laws we have now, I think I understand what Nature’s lawyers were worried about.)
What I didn’t understand was why Stephen’s previous post, saying that a particular British organization was being ‘unscientific’, was left untouched. These nuances are obviously important, and I look forward to seeing lots of examples so I don’t make the same mistakes.
I do, as it happens, understand why that post was taken down. I just happen to think that NPG chose the sensible option, not necessarily the right one.
The law needs de-donkeying.
(And no, I don’t understand why the first one was also untouched either, especially seeing as the BCA have already demonstrated they will sue, whereas Greenfield et al haven’t).
Jennifer Rohn (emphasis added): “Maybe I’m missing something, but unlike everyone else who’s commented here, I do see why Stephen’s post could have been deemed defamatory.”
But I had written: “I have seen the original article and, under the current state of the English law of libel, I am afraid I can see why Nature’s in-house lawyers would have been unhappy.”
Was my comment not clear? I am sorry if that was the case.
Sorry, David. Obviously I missed your comment.
Yes…as I said above, had Stephen’s post been something going out for publication in Physiological News, where language is deliberately a bit more cautious than in the blogospheric bearpit, I would probably have editorially re-worded at least one bit (referring to a doctor who has been in the national news recently). And had I been aware of what David just said about English law and imputing motive, I probably would have re-worded another bit (about a well-known British scientist) too.
But… the wider question for me in a blog/forum context is the “unilateral take down”. Once NPG got as far as having a lawyer fine-tooth-comb the article, they could easily have asked Stephen “could you change this and this?” We are only talking (editorially) about changing a couple of sentences, or even phrases. Which is again, to me, part of the inherent ridiculousness of English libel law – the point of the article was a discussion of scientific authority in general terms, not the reputation of any of the people it mentioned. Another part is the fact that the law seemingly judges blogging in essentially exactly the way as it judges print, and with little regard to circulation / dissemination (how many people are likely to read something). Although whether this has been tested in court WRT blogging I am not sure – maybe David can tell us?
In a recent case (not going to law) where a junior doctor got suspended for saying something very crude (in an Anglo-Saxon way) about a Very Senior Medical Figure in an on-line forum, it became clear that many people use on-line comments as a kind of extended conversation down the pub. The law has not got its head round this. While I think that there is a difference – the junior doctor was clearly being a bit naive if he thought a comment on a widely-read doctors-only forum was the same as a remark to his mates in the bar after four pints – it is still not the same (in my opinion) as something appearing in print in a circulation of several million.
Or, put another way,
“No one reads blogs”.
Coat, I’m getting it.
@Austin: it’s a bit like the advice on saying things in emails about people – don’t write anything about someone in an email that you would not be happy to say to their face. Emailing is not like comments down the pub because the comments do not evaporate. Equally an offensive remark about someone in a forum may stay online for many years and may even appear in Google searches for that person’s name.
Jenny, I think the confusion of many of us came from the fact that one post was taken down, but not the other – making it difficult (for us uninitiated) to guess what the specific criteria were in that case.
Anyway, the new blogging guidelines should clear that all up, eh?
Steffi, I think MT4 should clear all this up. SRSLY.
Wait,- if you’re in New York state there’s protection from British libel law? Does that hold up? That could lead to blog tourism (antidote to libel tourism)? Thanks for that link.
Interesting idea Sarbjit – though (as I’m sure you may be aware) NY-based bloggers here should take note that their remarks might still make trouble for the publishing company… And even so, it might inhibit you from traveling out-of-state!
Returning belatedly to Jenny’s question: What I didn’t understand was why Stephen’s previous post, saying that a particular British organization was being ‘unscientific’, was left untouched.
Someone with greater legal nous than me can perhaps weigh in here (Austin? David?) but I felt that was OK since I had been careful to phrase the argument to say that I thought they were being ‘unscientific’ in their response to the claim made by Singh that kicked off their libel suit against him. I was arguing that it would have been ‘more scientific’ to engage in an open debate about the merits of the evidence on both sides. I think this amounts to fair comment… (in reality and in law).
But I have been wrong before.
And finally for now (for I am in danger of undermining the title of this post), Timo has put up a brief public statement about this issue.
I expect we will hear more from Corie about new guidelines soon.
Stephen – leaving aside the cunning plan you’ve clearly hatched to get lots of comments (we all love an underdog), I’d say with Jenny and David that it’s obvious why NN pulled your post (yes, I too went via Richard’s FriendFeed) – but just as the Singh case is appalling, this too is a case where you should be able to make such statements without fear. Where will it end? I gather someone has sued a reviewer recently for writing a bad review of their book. Definitely time for a change in the law.
OK – time for a little test.. Everyone who has been following this thread ought to have their libel antennae nicely tuned up. So who can spot the defamation in Brian’s remarks above?
Please form an orderly queue.
The winner gets to act as my lawyer. 😉
It’s in the imputed motive in the first line, which would clearly tend to make us think less of Stephen. Reputational damage!
That’ll be ten pounds, please. That’s my introductory rate.
Go to the top of the class! The cheque is in the mail.
Er, no…
There is no defamatory statement in the first line.
Defamation is about lowing one’s reputation, not about doing what one is supposed to do. One leading case is about an alleged IRA informer – the court held that such an allegation was not defamatory, as the allegation was to the effect that person was reporting unlawful activity to the police. Ergo, it could not lower their reputation.
Similarly, hatching up a “cunning plan” to “get lots of comments” is what a Blogger surely does. Indeed, it would be more defamatory to say that, as a Blogger, Stephen was NOT doing this 🙂
It would only be defamatory if Stephen clearly denied this intention (cf. allegations about Jason Donovan) and then the defamation would be about dishonesty, not his cunning.
£10 please, per word… 🙂
I stand in awe, David. Now we know exactly why I’m NOT a lawyer!!
I’m keeping the tenner, though – advice (albeit utterly spurious) offered in good faith. Presumably Stephen can always sue me to get it back.
He’ll need a lawyer, though.
‘Cunning plans to get lots of comments’ – uh, is that what I should be doing?
{blinks}
It would only be defamatory if Stephen clearly denied this intention (…) and then the defamation would be about dishonesty, not his cunning.
I do deny it! I’m not nearly as dishonest (or cynical) as — cough — some…
Dear, oh dear. My reputation is in tatters. It’s going to take an awful lot of money to fix.
bq. My reputation is in tatters. It’s going to take an awful lot of money to fix.
{resists cruel comment}
Or beer.
I just logged this over in the Nature Opinion discussion, but in case you don’t see it, here’s an article in the New York Times, A fight to protect Americans from British law which is relevant.
Is there not somewhere on NN a disclaimer saying that “opinions of bloggers have nothing to do with Nature, Nature Network, and of our editors (even Henry) or the Nature Publishing Group in General”?
I really don’t understand why content posted here, if not in poor taste (which I suppose would be an editorial call by NN), should cause NN any legal grief if it’s disclaimed to be the view of the poster and only the poster.
November of last year, Eady was attacked for trying to bring in a privacy law “by the back door”.
“QCs defend Mr Justice Eady as newspapers accuse him of privacy law rulings”http://business.timesonline.co.uk/tol/business/law/article5126916.ece – Francis Gibb, legal editor, Times Online.
It appears that Mr Eady might be engaged in some kind of campaign. Defended by some of his learned friends, of course.
Defamed or not defamed, what is the answer?
US ‘shock jock’ Michael Savage to press on with libel case against Jacqui Smith.
Yesterday libel, today cabinet meltdown. We are truly living in “interesting times”, but will this result in a healthier, more robust democracy with a more equitable distribution of resources across the board?
Richard Wintle wrote:
“I really don’t understand why content posted here, if not in poor taste (which I suppose would be an editorial call by NN), should cause NN any legal grief if it’s disclaimed to be the view of the poster and only the poster.”
Well, that would seem sensible, Richard, but under UK libel law it doesn’t work, see posts on the Discussion Forum. As I posted here, English law regards NN as “the publisher”, and treats it and the bloggers pretty much exactly as it would a newspaper publisher and its writers, with the posting of something constituting “publication” – see e.g. Godfrey vs. Demon Internet for the latter point.
Hm, interesting, and now I see the point of the discussion. Apologies for not
havingmaking time to read all the back chat.@Richard G. – your iPhone camera defamed my appearance! Either that, of I must get a haircut.
@Maxine – thanks for the link, another chilling read. Though good to hear that there is some motion on the reform front (of which more anon).
@Larry – I hadn’t realised that it was Justice Eady who was attacked by Paul Dacre (and is now presiding over the Singh case). But I’m not entirely sure where I stand on the privacy issue. Can’t quite bring myself to agree with the editor of the Daily Mail…
@Richard W. – my limited experience suggests that Austin always makes sense. For those who want more, can I recommend his excellent blog!
It is interesting to read about the outrage felt in the USA about the extraterritoriality of English libel law through the action of the internet. Whether one believes the substance of this English law is correct or not, one should remember that the US federal authorities are very happy to use extraterritorial principles when it suits the political aims of the government. For example they have arrested British citizens associated with online gaming companies (not hosted in the USA) on the grounds that as these sites are accessible to the residents of the USA, these individuals and companies they represent are breaking US (criminal) law.
Psst – just don’t mention rendition, Brian…!
I suppose a non-lawyer perspective might be a question of degree (of “damage”), where any “harm” has actually taken place, and where the “natural” home of any legal action ought to be. If a book is published in the US in a run of several thousand of copies, and widely reviewed and publicised there, it seems crazy that a complainant sues in the UK where a dozen copies have been shipped by Amazon. The “natural home” of any action would seem to be in the US, and the action in the UK the purest kind of libel tourism. There are even crazier examples, such as a Ukranian oligarch suing a Ukraine-based Ukranian-language website but doing it in the English courts.
I suppose the US authorities might argue in the online gaming case that the real damage is occurring in the US, which is presumably the sites’ main customer base, and thus the assuming of jurisdiction is appropriate. But I agree with you that the US action can be read as a bit two-faced.
In the specific case of anything that bears on the right to free speech, the reaction will be pretty visceral since it is regarded as an absolute bedrock principle on which the US is founded, enshrined in the First Amendment:
“Congress shall make no law… abridging the freedom of speech, or of the press…”
– and re-affirmed since by numerous judicial decisions. Libel law as constructed in the UK pretty obviously flatly contravenes the US First Amendment.
PS There is a petition to reform the English libel laws that you can sign on the No. 10 Downing St website. Makes a good companion piece to the Sense About Science letter of support for Simon Singh, which you can sign up to here.
You can sign it there, but you might want to read about it first…
Agreed, Richard. There is a link to “read the statement” on the signing page too.
If anyone wants to go for a “signing three-for-one special”, there is also a petition about NOT insisting blue-skies curiosity research be tied to Govt ideas about wealth creation and forced into targetted initiatives, a policy the UK Govt seems keen to force on the Research Councils – you can find this one here.
Another link! Clare Dudman reports from the society of authors meeting to which she refers in the Nature Opinion forum discussion.
When Austin stops referring to UK or British libel law, I will finally feel I have achieved something useful in my Blogging career 🙂
It is English libel law (shared with Wales alone in the UK). Scotland and Northern ireland have their own legal systems.
So it is only the law of a component of the UK which is the cause of this international mischief and chilling effect!
A word on libel tourism.
English libel law is about protection of reputation.
So to bring a case in the London High Court for libel requires not only that the defamatory statement was published in England (or Wales), but that the claimant also has reputation. However, this requirement is easily satisfied. At this link+)&method=boolean is the notorious Ehrenfeld case – see paragraph 11 for how easily it is accepted that the claimants have a reputation in London.
Now read the judgment as a whole – a book not published in England, by a US author about non-UK citizens comes under English libel law because of the internet and international bookselling websites.
After a while Ehrenfeld refused to take part in proceedings and so, in paragraphs 74 and 75, the court imposed the maximum damages it could in the circumstances, as well as an injunction against the book…
…and so now the State of New York will not enforce such English libel judgments.
Apologies, David. I do try to remember to say “English”, but since for all non-legal purposes one tends to automatically type “British” or “UK”, it is a tough habit to break.
I reckon that overall I am currently managing about 3:1 (English“) for my references to law – honest!. I do better on the blog than on comments, presumably reflecting more editing. But UK will keeps slipping out.
I wonder if it will ever prove possible to get the, um, British parliament to amend the much-loathed English libel law? And if it ever came to a vote on new legislation, would the Scottish MPs abstain on West Loathian grounds?
@David- just to check. Are you charging me for every comment? 😉
Actually I think I may have to abandon my plans to pursue Brian through the courts because this morning I was rather taken aback by this:
Tis but a temporary aberration and normality will soon redescend. But it made me smile, ever so briefly.
Tall poppies, Stephen. Tall poppies.
Quite there, Richard the third.
(Anyway, I know it’s an aberration!)
“Now is the winter of our discontent made glorious summer by this son of York…”
and anyway.
Fourth!
If there’s anyone else still reading this thread I have some very simple questions I’d like to know the answers to (sort of “Libel Law 101”).
Firstly, this all pertains to things written in English – y/n?
So, If I publish on NN in French, there’s no problem – y/n?
What about if I write in some kind of code (Rot13 for instance, for the real old-timers out there)?
Can I create a new language that looks a lot like English, but isn’t actually English?
Is there some kind of International Commission that decides on language boundaries?
Is it possible to libel someone using mathematical formulae, or algebra etc.?
Don’t get mad, get even…
The language used is irrelevant under the law in England and Wales (Ukranians have sued ukranians for stuff written in ukranian, for example). If the ‘defamation’ appears in England, and is meaningful, it’s subject to the law.
Can’t really address your questions about computing and maths but suspect your cheek is being tickled by your tongue… 😉
I suppose you might have a viable defence if you could demonstrate that no-one in England was able to understand your comments in the language in which they were written, Ian.
However, if another individual then UK translated them into a readable language, someone would be in trouble, though I’m not sure if it would be you, or them, or both of you.
You should probably ask a lawyer.
Still reading the thread, for what it’s worth.
David cited the NY legislation following the Ehrenfeld case, in which the following quote appears: “Roy Blount Jr., President of the Authors Guild, said: “A writer’s job, generally, is to get at the truth, not to tiptoe around and pull punches so somebody in a foreign country doesn’t take offense.”
If that is a writer’s job, then it is a fortiori a scientist’s job. And as much, a science writer’s job.
Perhaps there will be a sort of libel-protection tourism, in which science writers will all congregate in NY State, with all their assets, since “although New York State has now done all it can to protect our authors while they live in New York, they remain vulnerable if they move to other states, or if they have assets in other states.”
In answer to Ian’s question, it appears that reputation is an important component of whether or not a libel case can be brought in England. A document in Hindi, written on an Indian website about a Bollywood actor, could (if I have understood right) still be considered libelous if English citizens could have read that document and knew the reputation of its target, a reputation which would thereby have been diminished. And ever since William the Conqueror, there have been quite a few English who can scrape by in French.
I am still curious about the quantification of a diminished or damaged reputation. How does the English law grade the damage?
I suspect the quantification is decided by the judge when determining the level of damages (though the costs will be enormous anyway – check out the graph at the bottom of Simon Singh’s own account of the libel case to see how oot-of-line England and Wales is relative to the rest of Europe).
Not quite sure where the Scottish accent came from in that last line…
Curiouser and curiouser. We all have to admit – this is rather fascinating. I’m sure that scientists have a particular problem with this issue because what we do on a daily basis is to search for the truth. And we tend to forget that not everyone else sees the world like we do. Furthermore, it would be arrogance of the highest order to believe that our way was the right one.
Clearly one of the cultural differences between ourselves and others is that our “laws” are laws of nature (which, on a daily basis, we assume to hold true). The “laws” of the rest of the world are rules, and as my ex-boss was forever telling me, rules are meant to be broken (witness MP expenses claims; wait a minute, that might be libellous). The problem I have with the legal system in general is that, notwithstanding the fact that laws exist for very laudable (and mostly agreeable) reasons, why does it take so long to get things changed when obvious (presumably unexpected, or unanticipated) anomalies occur?
Here’s a question. Is “lol” understood by “English people”? For a long time my wife thought it stood for “lots of love”, and became increasingly bemused by some of the e-mails she got from her students. I think it’s unlikely that my parents know what it means. Where does this whole thing about language, implied meaning, and perceived meaning begin and end? (I suppose it’s the subject of PhDs somewhere).
FYI, Nature has come out with an editorial today about English libel law, entitled “Unjust burdens of proof.”
Yes – an excellent editorial, though a touch late in the day.
Cheers Corie – I salute the journal for doing so!
Oh – and what’s the latest on those guidelines…?
Nature editorial “a touch late in the day” – in our defence, we are a weekly magazine. We have carried comment in the interim in our online News and news blog.
On the guidelines – we are working assiduously on these – they’ll require sign off from the NPG board as well as lawyers, but we hope it will be soon. They had been drafted before this latest sad event, so I hope it won’t take too long. In the meantime, Jack of Kent has provided some useful advice in this thread, and the Nature Network community guidelines (in the standard footer bar of all Nature Network pages) as well as the terms and conditions (more formally phrased, also in the standard footers) provide the essential basics.
Apologies! I actually returned to this thread for a different reason, but got distracted by the comments that had been made since I last visited. I hope that at least I am helping to keep you up there at the top, Stephen!
What I visited to post was a link to do with the conversation above about the reach of the US law to the UK and, in the case here, vice versa – from Nick Hornby’s blog.
Maxine – Despite the iniquities of Gary Mckinnon’s case, at least the US authorities had to apply for extradition. Although the extradition treaty agreed by the UK and NEVER RATIFIED BY THE US CONGRESS applies in the UK (hence this case) but not the other way round. So the UK authorities cannot apply for extradition under the same rules. This of course was a response to a request for help during the “war on terror”. As an aside we must note that various Irishmen were always able to avoid extradition on the grounds that appearing in a court in the UK was for a “political” offence.
Finally, of course, libel is a civil action and the case in Nick Hornby’s blog is a (however unjustly) a criminal case and so different rules apply.
Thanks, Brian. I have to admit to a superficial reading of Nick Hornby’s blog rather than any proper understanding of the two cases and why they are different. Thanks again for the explanation.
Nevertheless, the McKinnon case and the stink about English libel laws do highlight the untenable asymmetry in the application of laws across boundaries, especially given the ubiquity of the internet. It strikes me as reasonable to suggest that the extradition treaty should only come into force in the UK once reciprocal arrangements are in place in the US. Likewise, as is becoming well-known, the UK libel laws needs to fall in line with a more acceptable international standard.
RE: The Nature editorial: Unjust burdens of proof — A counterpoint analysis!*
On June 11, the Nature finally broke silence on the ongoing “Singh v BCA” libel case in the UK, by issuing an editorial entitled Unjust burdens of proof. As a matter of conscience and decency in the good science journalism industry; and having been following diligently this test-case in regards to a world-renowned science writer’s “freedom of speech” issues — issues that are to be scrutinized by the British Libel Law — I wish to present a “counterpoint analysis”* of this case to the abovementioned Nature editorial, as follows:
1] As a retired scientist and published author in all the “academic,” “clinical,” and “commercial” biotech research settings, I would totally disagree with the June 11 Nature editorial, as it does not distinguish “how” and “why” any scientific debates should be conducted under any of these 3 “different” settings — scientific debate meetings that may be held privately or publicly; but must be argued in front of a panel of qualified scientists and/or clinical specialists, just as a matter of proper scientific and technical proceedings.
2] As much as I would sympathize with Singh — as a “non-clinical” science writer — unfortunately, he has clearly crossed the line of his “freedom of speech” into the allegation of the BCA’s “clinical matters” — an allegation that The Guardian is “definitely” not qualified nor licensed to arbitrate earlier (whether in the public or a private setting). That’s why the BCA has “every right” to litigate Singh under these circumstances affordable by the British Libel Law: whereby the defendant must show cause (thus burdens of proof) or forever hold its tongue, and pay up all the damages and costs that it has garnered (since the initial public allegation against the plaintiff, in The Guardian article)!
3] Furthermore, as I’ve commented on this “Singh v BCA” test-case before here that the English libel law will have nothing to do with any conventional (responsible) academic “discussions and/or writings about scientific and medical evidence” forums, or journals, or books, etc, at all! Therefore, the “gross libel law” analysis, as presented in the Nature editorial above, is clearly unscientific nor logical, by messing up all these matters: scientific, academic, clinical, commercial, public, privacy, legal, free speech, libel, etc — as “unjust burdens of proof” — while calling to change the established “burden of proof” clause in the British Libel Law!
4] But “how” and “why”? Is it “for” the convenience and proliferations of the increasingly undue and unjustified allegations in the burgeoning “commercialized” fad/bad science journalism industry, as exemplified and being complicated in this “Singh v BCA” libel case at hand!? Or, “why” any “commercial” science writers (seasoned or novice alike) should hold “exemption” privileges for their ethical and/or professional lapses and/or any unjustified allegations (in the name of freedom of expression) punishable by the British Libel Law!? As far as I know: the “burden of proof” clause shall consistently and persistently inform and confirm “what” good science writings (academic, clinical, commercial) are — and shall be — all about (please see counterpoint 1 above)!
5] Last, but not least, as a matter of fact and of free speech issues — and more importantly — as far as this “Singh v BCA” test-case is concerned; and especially in these (24/7) days of the Internet age, the legal costs and damages (to both parties and their associates) that are increasingly being affected by the defendant’s current, global “publicity stunts” and outreaches, such as this one here (“Keep libel laws out of science” campaign) could only — and will — escalate astronomically, in as long as this libel case has not been settled (as soon as possible, and once for all, in the name of science) lawfully in the UK! As such, the demand on the “alleged burdens of proof” in this case is even more than justified — and imperative — under the British Libel Law! So, “why” Nature (a world-renowned publisher of good science reports and analyses) is now editorializing to change the “scientifically-justified” English libel law!? It just defies the general reader’s both scientific and common senses!
[*This commentary is an expansion of a recent response that I initially made here “Using the law to stifle scientific debate — RE: The Nature Editorial is unscientific nor common sensical!” (NatureNetworkUK; June 11).]
Best wishes, Mong 6/15/9usct12:37p; author Decoding Scientism and Consciousness & the Subconscious (works in progress since July 2007), Gods, Genes, Conscience (iUniverse; 2006), and Gods, Genes, Conscience: Global Dialogues Now (blogging avidly since 2006).
@Mong, I would be less than human if I didn’t acknowledge that your comment has given me my maiden century (in comments). Thanks!
And thanks also for your counter-view – always glad to debate the issue here. I have to say, however, that I disagree with much of what you say.
In your point 2 you talk about Singh’s allegation as ‘an allegation that The Guardian is “definitely” not qualified nor licensed to arbitrate‘, but I don’t think the The Guardian was aiming to arbitrate on a matter of medical science. Singh’s piece was clearly labelled as a ‘comment’ and he has (or should have!) the right to air his views. And the BCA has the right to air theirs too. Indeed I understand they were offered the chance to reply by the newspaper but declined to do so.
You may be technically correct that the BCA has the right to sue because of his comments, but that is only because English libel law is so poorly framed.
You also say “the English libel law will have nothing to do with any conventional (responsible) academic “discussions and/or writings about scientific and medical evidence” forums, or journals, or books, etc, at all!” but that isn’t true of public discourse of science as Singh has discovered. Ben Goldacre was also subject to an (unsuccessful) libel suit when he criticised Matthias Rath. Organisations with vested interests can and do sue for libel to stifle negative criticism. That impedes free scientific debate.
You question why ‘any “commercial” science writers (seasoned or novice alike) should hold “exemption” privileges‘ but I’m not sure where your quotation marks come from. The Nature editorial specifically stated “There is no reason to give a special privilege to science within libel law.” The argument is not for an exemption for scientists but for a reform of a bad libel law that will benefit the whole of our society.
RE: Eyeing at broader view of things, or risk an identity crisis!
@Steven: To err is human — to realize one’s own errors is genius; and thanks, as I thought the counterpoints above could give you a broader view of things, that might be all entangled up in this “Singh v BCA” case; and that even the Nature editorial had not considered them, thoroughly, before.
This “BCA v Singh” is a libel case against a “science writer” and not “science” or “scientists” in general, as you and the Nature editorial had all misconstrued and argued senselessly before. Let’s see if you could agree with these issues as observed from the general reader’s perspective, as listed below:
1] From an editorial point of view, The Guardian should have had detected and suggested editing out the Singh’s “specific” libelous “comment” on the BCA, before publishing it. If it did, there would have been no “BCA v Singh” libel case at hand. (An editorial lapse, perhaps!?)
2] From a scientific point of view, The Guardian is “definitely” not a forum for the “public discourse of science” so as to air or defend or debate “yours” or any other scientists’ “research work” matters (academic or otherwise), let alone the alleged BCA’s “clinical” matters! That’s why the BCA had firmly and rightfully declined _The Guardian_’s offer, to respond to the libelous “comment” alleged unscientifically in the newspaper; instead it did seek to litigate the writer, lawfully, under the British libel law! This is a very clear case of “hearsay-allegation” issues; and not of any “science debate” or “free speech” matters, at all. (A public civility libel law lapse, maybe!?)
3] As such, from a legal point of view, especially in this “BCA v Singh” case, the English libel law will be used to adjudicate a “libel” perpetrated by the defendant, who happens to be a renowned “science writer;” and not at all to adjudicate “free speech” or “science” matters — as you’ve all mistakenly feared — nor even to adjudicate “scientists” who normally would adhere to their own professional codes of ethics and conducts, when debating “scientific” matters (academic, clinical, or otherwise)! (An identity lapse or crisis!? And please note: a “loud-thundering science writer” is not necessarily the same as a “hard-working scientist” who writes his/her own research work in science!)
4] Consequently, the “scientific” and “legal” context of Goldacre’s case is not the same as this “Singh v BCA” one published in The Guardian before; and the “exemption” privileges (that I presented) are referred to those of a “science writer” and not of “science” or “scientists” as you and the Nature editorial had misidentified, mischaracterized, misconceived, and argued needlessly so as to reform or change the actually “scientific” and “civil” functions of the English libel law!? So, let me repeat: the libel law has “nothing” to do with “science” or “scientists,” for as long as they keep minding their own “businesses” in sciences (scientifically and civilly) whether in the UK or elsewhere worldwide. But it has “everything” to do with “writers” (of science or otherwise) who might be increasingly, or self-indulgently, or unscientifically, or unethically, or uncivilly tempting to commit a “libel” or libelous “comment” (as in _The Guardian_’s “Singh v BCA” article has shown) under the English libel law (please see the potential professional and/or ethical lapses in 1 and 2 above)!
Best wishes, Mong 6/17/9usct4:55p; author Decoding Scientism and Consciousness & the Subconscious (works in progress since July 2007), Gods, Genes, Conscience (iUniverse; 2006), and Gods, Genes, Conscience: Global Dialogues Now (blogging avidly since 2006).
I think we shall have to agree to disagree on most points.
1/ Arguably, Singh could have been a bit more careful in his wording. But the BCA were offered the chance to place the counter view, as is normal in a scientific discussion, but chose not to. That may be their right under the (flawed) English libel law, but I maintain it’s an ‘unscientific’ stance to adopt.
2/ Disagree entirely. Of course most hard-core scientific debate will take place in the literature and at conferences but the public has a right to be informed, particularly when scientific issues impinge on health-care.
3/ Respectfully, I reject your distinction between science writers and scientists as irrelevant in this context. Singh holds a physics PhD and, in my view, is scientifically trained and more than capable, having research the evidence on chiropractic, to present a reasoned argument. I don’t know who is going to arbitrate on who is and is not allowed to speak on scientific issues. I detect a slight note of bias against scientific writers in your remark (but perhaps I’m mistaken?). OK, they’re a variable bunch and most don’t work day-to-day in science but many are quite capable of understanding and presenting it. As I have tried to argue eslewhere, authority comes from reasoning and openness to error.
4/ No-one is arguing for exemption. English libel law is bad all round.
That’s me done.
Though perhaps we could agree on how to spell my name…? 😉