Draft Defamation Bill ‘not going far enough’

Simon Singh and his technicolour dream scarf

The Government’s draft Defamation Bill has received a mixed reception from experts within the science and journalism communities. Published 15 March, it is the first time since 1843 that a wholesale reform to libel laws has been officially proposed.

The bill is designed to safeguard free speech and provide greater protection against libel tourism. However, some observers say that the reform proposals are “not going far enough”.

Connie St. Louis, director of the Science Journalism MA programme at City University, welcomed the bill, but said: “There are a still a number of issues to be addressed. There have been big science libel cases in the past, involving Simon Singh, Ben Goldacre and Peter Wilmshurst. The problem is that the Wilmshurst case would still have happened with this new bill.”

At a 2007 medical conference, cardiologist Peter Wilmshurst criticised NMT Medical for their research on their surgical device, the Starflex. NMT promptly sued Wilmshurst for libel after his conference speech was published online.

“A lot more needs to be done; we need to make sure companies cannot threaten individuals,” St. Louis said.

What the draft bill does offer writers, authors and journalists is a new ‘statutory defence of honest opinion’, as well as a defence of ‘responsible publication’ if on a matter of public interest. Under the proposals, all claimants must also prove the infliction of ‘substantial harm’ to their reputation as a result of the offending publication.

Felicity Mellor, course leader for the Science Communication MSc at Imperial College London, argued that these provisions were “essentially restatements of the existing common law”, but was cautiously optimistic about the bill overall.

“The draft bill also extends the defence of qualified privilege to specifically include reporting of scientific and academic conferences. Whilst at first sight this may seem like a good thing, particularly in the light of the libel action against Peter Wilmshurst, it raises potential issues about how one defines such conferences and whether interest groups might be able to exploit this privilege in order to circulate defamatory statements without fear of legal action.

“Scientists and academics should be bound by the same laws as everyone else. The new statutory defences should safeguard the reporting of reasonable and justified statements made by anyone, including scientists and academics. If there is any doubt that they will do so, then these defences should be refined further rather than making a special case for reporting on the get-togethers of a diffuse and ill-defined set of individuals,” she said.

Simon Singh, the popular science writer and author, fell foul of current defamation laws in arguably the most high-profile case of its kind in recent times. The British Chiropractic Association (BCA) took Singh to court when he asserted that the organisation “happily promoted bogus treatments” in a 2008 article in The Guardian. Despite the BCA stepping down last year after a lengthy legal battle, Singh has still actively campaigned for the recent amendments to English libel laws. He said that while he could see the benefits to be gained from the draft, there are also some major issues that still have not been tackled.

“The draft bill brings some clarity to the law, which is incredibly important for editors and writers who want to know if they are on firm ground after being threatened with libel,” he said. “It also begins to strike a fairer balance between the right to reputation and the right to free speech, but there is still some way to go in the direction of authors and publishers. This is particularly true in terms of supporting peer-reviewed journals and scientists speaking at conferences.”

Singh has worked with Sense About Science, an independent charitable trust that has worked for the Libel Reform Campaign. Síle Lane, public liaison and campaigns manager at Sense About Science, said: “The draft bill has some good things in it. But more still needs to be done to protect the individual scientist or medic, the consumer group, sceptic or blogger. In particular, the campaign is calling for a stronger public interest defence, more protection for web-hosts and Internet Service Providers from liability for content they host, and an end to the ability of corporations to sue in libel.”

Andrew Williams, journalism researcher at Cardiff University, agrees.

“I don’t think that the campaigners got everything they wanted. For instance, around the issue of cost, because fighting libel suits is cripplingly expensive,” he said.

However, he added that: “There seem to be some big steps forward here, not least the proposal to protect discussions about science and medicine. The changes around issues like substantial harm, public interest and ‘honest opinion’ will all substantially liberalise what is one of the harshest libel environments in the world in which journalists write.”

This post was also published for the Association of British Science Writers

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