Tuesday, 15 November 2011

What's all this fuss about Libel Reform?

I went to the Houses of Parliament last Wednesday (9th Nov). I’d never been before (it’s worth the trip, but be aware it takes the best part of half an hour to clear security), and I don’t even live in London, so what prompted my sudden incursion into the halls of British democracy? I went to attend a public meeting on libel law reform, organised by the Libel Reform Campaign, a coalition of Index on Censorship, English PEN and Sense About Science. I’ve been following the campaign since its launch in 2009, and as of now, 57,292 people have signed their petition. So what’s all the fuss about?

You may have spotted the word Libel in the news once or twice over the past couple of years. You’ve probably heard the name Simon Singh. He’s a science writer who was sued by the British Chiropractors Association (BCA) for a piece published in The Guardian calling some of the treatments handed out by chiropractors “bogus”. Or maybe you know that Ben Goldacre had to withhold a chapter of his book, Bad Science until a libel case against him was dropped? He had dared to criticise vitamin-pill entrepreneur, Matthias Rath for campaigning against anti-retroviral drugs in South Africa and claiming that the real answer to the AIDS epidemic there was multivitamin pills.

Those cases are old news by now, but as Simon Singh said on the day, “We’re old stories, but there are people still being threatened.” Citizen’s Advice has been unable to fully publish a report on certain practices of high street stores which are contrary to consumer protection regulations, despite spending a year’s research and campaign contingency budget libel-proofing it. Nature is in the courts right now for a 2008 news article which was critical of a journal editor. And so on.

The meeting was chaired by Dr Evan Harris, the campaign’s policy advisor, sponsored by Julian Huppert, LibDem MP for Cambridge, and speakers included Singh, Justice Minister Lord McNally, JohnathonHeawood, director of English PEN, John Kampfner, chief exec of Index on Censorship,Tracey Brown, director of Sense About Science (SAS), Dr Peter Wilmshurst, and representatives of Citizens Advice, mumsnet, Nature, Global Witness, Which?, Facebook, the Publishers Association, Liberty and AOL. MPs present who responded were Andy Slaughter (Labour) and Tom Brake (LibDem). Turnout on the day was fantastic; not that I know how many people usually turn up to such things, but there were no seats left by the time I got there. We were rammed in like sardines.

What’s the problem?

Libel law in this country is hopelessly out of date. 

There’s no specific protection for scientists writing in peer-reviewed academic publications, for instance. The law has also failed to keep up with the internet, which potentially makes each and every one of us a published commentator. Have you ever worried about how legal your Facebook or twitter posts are? Maybe you should start. Vaughan Jones is currently in court defending himself against a libel claim over a negative book review he wrote on Amazon. No, I’m not kidding.

Lisa Fitzgerald, senior counsel from AOL, talked about the legal quagmire of determining who is responsible for what content (ISP’s, websites, forum hosts, third-party content providers, users, etc.), commenting that, “The current law discourages active involvement in your website and encourages a take-down culture.” Richard Allan, director of European policy for Facebook, cautioned that “If the law is not got right, spaces like ours and mumsnet simply get smaller”.

And as for bloggers, all I can say is I’m being very careful what I write here…

The current law stifles free speech, and is often counter to the public interest.

The law is so complex that cases can take years, and hundreds of thousands in costs, to resolve. Large organisations with deep pockets can exploit this to use libel threats to force retractions of material they don’t like, effectively censoring information which might be in the public interest. David Marshall of Which? magazine said that, “Exploiting the uncertainty and inequality […] in the current regime is well worth it in the name of reputation management.” He was referring to the practice of using libel law as a PR tool, which is possible mainly because claimants currently don’t have to prove damages to launch a claim; all they have to demonstrate is publication. This makes it very easy to issue libel threats.

British cardiologist, Dr Peter Wilmshurst, was pursued through the UK courts by an American medical supplies company, NMT, for the best part of four years. He made comments at a conference suggesting that the failure of a clinical trial he was involved in may have been due to the failure of one of NMT’s devices. He claimed the argument was a matter for scientific debate, not for the courts, but the case against him wasn’t repelled by UK libel law. It only ended when NMT went into liquidation earlier this year. Speaking at the meeting he said, 

“The action against me prevented others with concerns about the safety of devices made by NMT from voicing their concerns, including making known life threatening problems with NMT’s devices. […] Patients have suffered because of [the law] being used to silence doctors with legitimate concerns about medical safety.”

Last March, the Ministry of Justice Working Group on Libel reported that debates in the public interest are being “chilled”. Judges in the BCA vs. Singh case came to similar conclusions.

There’s an imbalance in favour of rich and powerful claimants. 

The huge cost of libel cases gives an unfair advantage to rich and powerful individuals and organisations. Hardeep Singh’s lawyer stood up and told a tale of being taken down a "dark passage in the Royal Courts of Justice" by a claimant’s lawyer and told, “Our pockets are a lot deeper than yours. Give up.”

Awards are typically not that large (typically in the tens of thousands), but costs can run to several hundred thousand. So if, as an individual, you’re threatened with libel and you decide to defend yourself, if you lose, you’re ruined; if you win, you usually don’t recover all your costs, so you’re lucky to break even. Much better to settle and pay damages you know won’t break you. 

As an analogy, there’s a concept used by serious poker players called “Expected Value”, which is just the net result of making the same decision in the same situation over and over again. If calling a £5 bet will win you £40 twenty percent of the time, but lose you £5 the rest of the time, the EV is +£4 (40 x .2 = +8 + (-5 x .8 = -4) = +4), so you have positive EV, so you call. You’ll usually lose, but in the long run, you gain. That’s a very common situation in poker, but typical libel defendant situations reverse that logic, because costs can run so high as to deter people even if they think they have a good chance of winning. If costs can run to several hundred thousand, but damages (and presumably the settlement figure) are just a few tens of thousands, then even if you think you have an 80 to 90% chance of winning… 

Well, I’ll let you do the maths, but it doesn’t add up to going to court. 

Not that anybody wants more cases ending up in court. One solution to the cost issue is procedural reform, and the development of alternative dispute resolution systems to deal with claims before you get to the hugely expensive court system. But even so, surely a system where damages, not costs, constitute the bulk of the ultimate bill stand a better chance of deterring genuinely malicious defamation, whilst encouraging people to speak up if they’re speaking the truth?

It’s internationally embarrassing.

Some concerns have been raised about cases of “libel tourism”. Dr Wilmshurst was sued (in the UK) by a US company, for comments made at a US conference, and posted on a US website by an American journalist.The journalist and website were not sued.Hardeep Singh was sued by an Indian "Holy man", who neither reads, writes, nor speaks English, and who had apparently never even been here. 

Last year President Obama signed into law the SPEECH Act, designed to protect Americans from libel tourism. 

        What’s the other side of the story?

In the early days of the campaign the clamour of voices calling for reform drew some criticism from the legal community. Two academic lawyers, Professor Alastair Mullis (UEA) and Dr Andrew Scott (LSE), published a rejoinder, which explained why some of the changes being called for might be very bad ideas. Reversing the burden of proof, for example, so the person claiming libel has to prove that what they were accused of was false, wouldn’t be such a good idea. If somebody accuses you of something, the onus should be on them to produce the evidence.

Gavin Phillipson was the law professor on the government's working group on libel and has been a moderating voice helping to rebalance the debate and debunk some of the wilder claims reported in the media. He welcomes debate on the issue and advocates some reform, but he isn’t impressed by allegations that English libel law is an international joke. There has been talk of restricting UK jurisdiction to cases where the publication in question has a sufficient proportion of its circulation here, but if the law is reformed along the lines being proposed, this becomes a moot point anyway.

Episodes of media hysteria like the MMR scandal (should) have taught us that just because an issue is grabbing headlines, that doesn’t mean it’s valid. But it’s hard to watch scientists, doctors, NGOs, consumer affairs magazines, internet companies, MPs, journalists, bloggers, publishers, mums, journals, and just plain citizens, stand up and say this is a problem without thinking that it may, in fact, be a problem. I know that isn’t very scientific, but if there are statistics showing that these are isolated, anomalous cases, and that actually the current law is doing the best possible job of balancing the right to reputation with the right to free speech, why isn’t anybody working harder to make those facts public? Where is the anti-reform campaign? The stats I did hear came from Victoria Lustigman from the Publisher’s Association, regarding a survey of their members they conducted earlier this year:

“A hundred percent of respondents said they had modified content or language ahead of publication due to threats of libel actions, forty three percent had actually withdrawn publications, a third had refused work from authors for fear of libel suits, a third had avoided publication of particular subjects…” 

        What’s the answer?

Well, the campaign has its own fairly detailed ideas on this, but in brief:

The law needs to be modernised to take account of modern global communication tech and culture. A new procedure for the internet is being developed, designed to provide not only rapid recourse for those defamed online, but also better protection for online publishers. Anonymous postings must be taken down upon complaint, unless authors identify themselves or public interest is at stake. Also, at the moment every fresh download of an article creates a fresh action, even if it's years later, because of something called the multiple publication rule. This is clearly problematic in the internet age and needs to go. 

There needs to be more protection for certain forums, such as peer-reviewed academic literature and the proceedings of NGOs, who are often working to expose corruption in governments and big business. This would just be a case of extending the existing law of qualified privilege, which currently protects situations such as reports of parliamentary proceedings.

The cost of libel cases needs to be reduced, while retaining the existing Conditional Fee Agreement (CFA) system, to make access to justice more equal. This need not involve changes to the letter of the law, so much as procedural change which avoids the courts altogether.

The reforms need to include controls over the ability of non-persons, such as corporations, to sue for libel. The proposal is that companies must prove substantial financial harm before they can even file a claim. They should only be allowed to pursue the financial rewards which libel entails if a defamatory statement is false, and:

a)            Has caused, or will cause, financial harm.
b)            Was either reckless or malicious.

Otherwise corporate claimants should be limited to being able to set the record straight. That sounds reasonable to me. A company isn’t an individual whose life can be wrecked by being called nasty names, it’s a financial entity. Corporations have enough power as it is, without the power to silence their critics through sheer financial clout. In the draft bill we have a) but not, so far, b).

There needs to be a public interest defence. If you think you know something but can’t prove it, but if you’re right you might save lives but might also upset somebody, or even cost them business, what should you do? Surely we need to encourage people to speak up in these situations? Get the issue into the open where we can all work on finding the truth. Currently there is something along these lines known as the Reynolds defence, but it’s only really useful if you’re a journalist on a national newspaper. Tracy Brown, director of SAS, expressed strong views on this issue:

“Libel law is very complicated, but the problem is quite simple. If we want to have a robust public discussion about matters of public interest, then we must have a public interest defence. It’s as simple as that.”

There is currently some protection if you’re criticising public authorities, but at a time when many of our public services are being sold off to private companies, wouldn’t it be a good idea to extend this to any organisation performing a public function?

            So where are we?

All three main parties made a manifesto commitment during last year’s general election to reform the law. Fantastic. Everyone’s on board.

The government published a Draft Defamation Bill in March this year.

The Joint Committee on the Draft Defamation Bill published a report last month, which welcomed many of the proposed reforms, but argued that the bill doesn’t go far enough, particularly on the issue of cost.

Speaking at the meeting on Wednesday, Lord McNally said that the government would be responding early next year.


            And where do we go from here?

Reform seems imminent, but a number of speakers at the meeting warned that now is not the time to start celebrating or relaxing. The proposals still need fine tuning, particularly in the area of online publishing, and a draft bill is not law. There is still every chance this issue could get sidelined if the campaign takes its eyes off the prize. Many of the people who spoke talked about the need for one last push and stressed the importance of making sure it gets into the Queen’s speech next Spring. I might even watch it if that happens.

Sign the petition


Spread the word. Post the petition to your Facebook page. Twitter #libelreform.

Watch this space!

2 comments:

  1. This is a really well thought out and well written article on a subject which is close to my heart.

    My own opinion is that libel law itself is fairly coherent on a number of levels but the process needs to change dramatically.

    Amending the law so that defences become available for certain professions does not prevent costs from being run up and does nothing to quell the "chilling effect" which is clearly running rampant right now.

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  2. Thanks! Glad you liked it.

    Yes, I agree. I think cost is the biggest issue and procedural reform is the way to tackle it.

    I believe the campaign's recent "alternative libel project" is an attempt to outline ways of doing that?

    I don't think anyone is suggesting protecting certain professions. Just introducing a stronger "public interest" defence which is accessible to all, and extending "privilege" to cover peer-reviewed scientific papers. I mean, if peer-reviewed science isn't responsible publishing, what is?

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