The U.K.'s Ministry of Justice is due in March to publish a draft bill outlining libel law reform. For many in the scientific community worldwide it can't come soon enough. Among the signatories to the campaign for reform are the Institute of Physics and Engineering in Medicine, the Society for Experimental Biology, AOL, Inc., and Nature Publishing Group. (Scientific American is part of Nature Publishing Group.)
"Our libel laws are among the most restrictive in the world," says Sile Lane, campaigns manager and public liaison for Sense About Science, a London-based independent charitable trust that promotes science and evidence-based public debate. "They don't protect free speech—they chill discussion of all sorts of different things including medical research, human rights, fraud and historical biographies."
A recent Sense About Science survey found that a third of science and medical journal editors worldwide have refrained from publishing research findings rather than risk a libel action. "We are paying a really high price for a law that protects the wealthy and powerful from criticism but doesn't do anything for people whose reputations have been damaged."
Fiona Godlee, editor of the British Medical Journal, told The Times of London in December 2009 that the libel laws are creating bad medicine by inhibiting decisions about whether papers get published or get withdrawn in cases of plagiarism, fraud, or error.
The U.K.'s libel laws have three significant differences from their U.S equivalents: First, the burden of proof is upended—defendants must prove their statements were true. Second, there is no public interest defense to give greater latitude to scientific debate. Third, the litigation costs are punitive—an Oxford study found that an English libel action costs 140 times as much as an equivalent action in 11 European countries. These all add up to "libel tourism": parties with no connection to U.K. pick England as their forum, a situation the Member of Parliament John Whittingdale has called "humiliating."
As outlined by lawyer, blogger and campaigner David Allen Green, reform campaigners' wish list for change accordingly includes: introducing a public interest defense; abandoning jury trails to speed cases and cut costs; along with limiting or ending the capacity of large companies to sue and/or restoring the burden of proof in those cases. Also important: revising the U.K.'s 1849 publication rule that counts every new purchase as a new publication date; when applied to online media this means there is effectively no statute of limitations. Campaigners also want a requirement that litigants must show someone actually read online material.
The best-known libel tourism example is the case of New York City-based author Rachel Ehrenfeld, whose U.S.-published 2003 book Funding Evil: How Terrorism Is Financed—and How to Stop It, sold 23 copies in the U.K. Nevertheless, an English court awarded $225,000 to the Saudi billionaire who sued her for defamation when the book named him as involved with funding Hamas and al Qaeda.. Rather than pay up and apologize as the court ordered, Ehrenfeld fought back by successfully pushing New York State to pass a law protecting U.S. citizens from the enforcement of foreign libel judgments if the speech in question would not have been libelous within the U.S. Six other states have passed similar laws, and the Libel Terrorism Protection Act is under consideration by the U.S. Congress. Still, reforming the U.K.'s libel laws matters if people and ideas are to continue to flow freely worldwide.
Other recent cases underline Lane's point about scientific debate. Peter Wilmshurst, a British cardiologist, is being sued by the U.S. company NMT Medical over his criticisms of its STARFlex cardiac device voiced at a U.S. medical conference and reported in the U.S. online journal thehHeart.org. And, Rodial, which claims its "Boob Job," cream enhances breast size, threatened to sue plastic surgeon Dalia Nield after she called the claim "highly unlikely" in a story published in the Daily Mail of London.
In another high-profile case, science writer Simon Singh was sued by the British Chiropractic Association (BCA) when, in a Guardian article promoting his 2008 book (co-authored with Edzard Ernst), Trick or Treatment? Alternative Medicine on Trial, he criticized the association for claiming that chiropractic therapy could cure childhood illnesses such as colic, frequent ear infections and asthma, "even though there is not a jot of evidence."
Traditionally, litigants sued publishers.
"Attacking the source is the new, big thing for libel lawyers," says Robert Dougans, an associate at the London office of the law firm Bryan Cave and the solicitor who defended Singh and Nield. "There are many who cave in," says Dougans, who notes that only a tiny percentage of libel cases ever get to court, "and many more who don't cave in…because they don't talk." The Nield case shows why: "What was a completely sensible and praiseworthy thing for her to do—steering the press right—cost her two days of time." And a sum in "the very low four figures."
Dougans estimates that Singh will get back about 70 percent of the $385,000 the case cost in pre-trial hearings before the BCA dropped it.
At the time, Singh, author of several worldwide bestsellers, said openly he was prepared to spend £1 million ($1.6 million) of his own money if it would bring about libel law reform.
"He has a wallet and he has balls. Neither on its own is sufficient," Dougans says.