If we were asked to design a defamation law that would silence awkward criticism in science and medicine, and protect powerful interests, how would that look? Let’s say we’ve got a company manufacturing a medical product that does not produce the benefits it claims to and there is the awkward matter of a journal paper, an editorial and a blog raising questions about it.
First, we must allow big companies to sue. Okay, we have to recognise that corporations are legal constructs so they can’t really sue for damages for hurt feelings, so let’s allow them to claim for “special damages” instead.
Then we have to make sure that it is very easy to bring a court action against critics, no matter how vexatious or trivial the company’s objection to them might be. We don’t want too many hurdles to serving proceedings. Never mind that our company is based in another country (BMJ readers will remember the case brought against the cardiologist Peter Wilmshurst by the now defunct NMT medical). Never mind either that the company might have no reputation to speak of, or that the criticism might have been made on a low-circulation website which few people had looked at. It should be able to litigate in London.
And litigate with knobs on. Full High Court action, no skimping on the expense and few limits to the cost and time the company can take up with multiple witnesses and submissions. The defendant will have to start calculating how they can pay the resulting bill if the case goes against them. Selling the house is one option, but for most people that wouldn’t raise enough to pay the costs of defending against one libel action. Once our critics do this sum, they should probably fold, withdraw their material and promise never to repeat it.
But in case not, we want to make sure that defending themselves is difficult. Even if an author has uncovered glaring gaps between scientific evidence and the company’s claims and has evidence to back that up, it should be possible to tie them up in expensive legal procedure for daring to say so. They will need lots of specialist help to put together a defence, so with any luck they’ll run out of funds before they get a chance to make their case.
Clearly our law shouldn’t look too one sided. It would need to contain a public interest defence, but ideally one that does not really work. It should be difficult for big media organisations to use it, and involve such great complexity and expense that smaller publishers and individuals could not contemplate it. Let’s make it ambiguous too, so no-one is sure how it applies to opinion pieces (BMJ readers recall the cases of Simon Singh and Ben Goldacre).
Our law might sound a bit 18th century but in recognition of the internet age (and to ensure any material we don’t like is removed as quickly as possible) we should count each new download as a separate publication, allowing our company to start a new course of action (this will be the multiple publication rule).
Doing all this will of course mean that the law is very difficult for ordinary claimants to use too. Those who need to correct a scurrilous newspaper allegation or get damaging innuendo removed from a website are going to find it difficult.
But our law works on the basis that it is generally the wealthy and the powerful who have reputations worth defending, and it does that rather well. We know it will do that because these are the libel laws we have today. Perhaps they are so restrictive and unfair because no-one has ever sat down to work them out or think through what an excellent reputation-management tool they provide for those that can afford it. We know too that these laws will continue to chill discussions about scientific research, medicines, historical scholarship, human rights, consumer safety, publishing standards, parenting techniques, and everything else we have been hearing about in packed meetings about libel reform over the past two years.
This is why, in the Queen’s speech tomorrow, all who care to protect the public interest in open discussion will be expecting to hear the Government deliver on its promise of a defamation bill to change all this. It is why, over the months that follow, we must work together with others who face this kind of bullying and its chilling effect on what they want to discuss or publish, to make sure that we will have a new law, one that has the interests of ordinary citizens at the heart of it.
Tracey Brown, Sense About Science, which is part of the Libel Reform Campaign www.libelreform.org
All authors have completed the ICMJE uniform disclosure form at www.icmje.org/coi_disclosure.pdf (available on request from the corresponding author) and declare: no support from any organisation for the submitted work; that the author’s employing organisation is a founding member of the Libel Reform Campaign and that it has received several grants from foundations and donations from organisations and individuals in support of work to reform the libel laws to make them fairer and simpler and to protect free speech and the public interest.