A Bill to Amend the Law of Defamation

The libel reform campaign has yielded a spring crop: a bill to amend the law of defamation was introduced to parliament in the Queen’s Speech on May 10th.

This means that legislation to amend the lax libel laws of England and Wales, which have caused a plethora of problems for scientists and science writers in recent years (not to mention many other worthy individuals and groups), will be debated in the Commons and the Lords. With luck, it will finally make its way onto the statute book. There is no guarantee that this will happen, even though libel reform has cross-party support, so it remains to be seen if the spring crop will be successfully harvested.

The passage through parliament is also likely to result in amendments to the proposed legislation. This is a good thing because, although the new bill represents a huge advance on current legislation, it falls short in some respects from the measures demanded by the libel reform campaign.

You can download the bill as a PDF to have a look for yourself. It’s not a long document but is written in a legalese that I confess I struggled to comprehend, even though I have written a fair few posts about the campaign in recent years. Nevertheless I wanted to highlight what seemed to me to be the more salient points.

The bill starts in section 1 with a definition of defamation:

A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. 

The key phrase here is ‘serious harm’. I am not entirely sure if that phrase has a legal definition but right at the beginning the test of whether a case can be brought for defamation appears to be less than ideal. The reform campaign would like to have a stronger test of harm “that strikes out claims unless the claimant can demonstrate serious and substantial harm and they have a real prospect of vindication”. This would serve to eliminate the muzzling that occurs presently from the mere threat of legal action by wealthy claimants who know that the potential high costs of defending a libel suit, even if successful, are a deterrent for many.

Section 2 establishes that you cannot be sued for libel if you are telling the truth:

It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. 

Nor, according to section 3, can you be sued for your opinions, as long as they are honestly held. This removes the trap that the British Chiropractic Association tried to use to snare Simon Singh when he wrote that their organisation “happily promotes bogus treatments” for which there was “not a jot of evidence”. Effectively it enshrines in law the ruling handed down by the High Court who upheld Singh’s argument what he had written was “honest opinion”.

Singh’s case was arguably also a matter of public interest since the claims of the BCA for the efficacy of chiropractic would undoubtedly influence choices made about healthcare. Under present legislation, the public interest defence in libel cases is unsatisfactory; it was established by legal precedent in the Reynolds defence, which allows potentially libellous statements to be published if they are in the public interest. But such a position usually has to be tested through the expensive business of court procedures, which puts it out of reach for many.

In section 4 the new bill explicitly asserts the right to a public interest defence to replace Reynolds:

It is a defence to an action for defamation for the defendant to show that—

1. (a)  the statement complained of was, or formed part of, a statement on a matter of public interest; and
2. (b)  the defendant acted responsibly in publishing the statement complained of. 

There are a number of caveats to this position, which attempt to define the seriousness of the statement complained of and the importance of the matter of public interest, and test whether the author has made any attempt to seek the claimant’s views or to verify the truth of the statement before publication. To me this seems like a big step forward but the campaign would like to go further to strengthen the public interest defence; they would like the law to require the claimant to show that the author had been “malicious or reckless” in their writing.

There’s a legal subtlety here that escapes me (legal experts should feel free to wade in with clarification) but I suppose that the campaign’s aim is to minimise the chilling effect of any room for manoeuvre that the new law might allow.

Section 6 is of particular interest to scientists since it establishes protection for the peer-reviewed literature. This is a measure that many scientific publishers had been keen to see incorporated. Thus, academic publications on scientific or academic matters are considered “privileged”; they are immune to libel suits, provided that:

before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—

1. (a)  the editor of the journal, and
2. (b)  one or more persons with expertise in the scientific or academic matter concerned.

However, scientists still have to be careful: statements made with malice will lose this privileged protection. So by all means be critical in your papers, but make sure to stick to reasonable standards of academic rigour!

The bill also attempts to bring the law into the age of the internet. Section 5 offers protection for website operators, or ISPs (Internet Service Providers), who have been targeted in the past because of content written by bloggers that they host (though bloggers themselves still need to be mindful of the legislation). And section 8 eliminates the risk of repeated libel action through repeated posting of the same claims on the internet by establishing that it is only the first publication that is actionable.

Finally, the dreaded curse of libel tourism is to be nixed. Notoriously, current provisions have given free rein to foreign claimant to sue in the courts of England and Wales for statements that were primarily published in other jurisdictions. This is the weakness that caused Dr Peter Wilmshurst so much trouble; the British cardiologist was sued by American company NMT for remarks made in the USA that were reported on a Canadian website. Unable to sue in the US, where freedom of speech has much greater protection, NMT were able to bring proceedings in London simply because the Canadian website was accessible from there.

No more. The defamation bill states that, for foreign claimants, no case can be brought:

unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement. 

That is not quite everything in the bill but it is everything that I could understand. It is an immense step forward and a great achievement for all those involved in the campaign, one that is rightly celebrated in Mark Henderson’s new book, The Geek Manifesto, which I reviewed last week.

However, unless this bill passes, no law will change. The campaign may have garnered a few laurels but it is not yet time to rest on them.
 

For more informed opinion on the Defamation Bill, try the Without Prejudice podcast, where the legal brains of  @JackofKent and @CharonQC discuss it in detail. For more background on the libel law, go for Nick Cohen’s You Can’t Read This Book.