Richard Smith: Is the BMJ too sensitive about libel?

Richard SmithI must begin by making clear that I think the BMJ magnificent, much improved from when I was the editor. I particularly applaud the introduction of indepth investigative journalism. I’m also extremely grateful to the journal for publishing my blogs, some of which seem to push close to the edge of sanity. But I want to reflect on the question of whether the journal is too sensitive about the threat of a libel action. The question arises because the journal wants to change a blog I’ve written for fear of libel, and I think that the editors are being overcautious.

There is no doubt that the consequences of a libel action can be disastrous for a journal. An action against a journal can absorb huge amounts of time of the editors and their lawyers. With a libel case the onus is on the defendants to prove that what they have published is true, which may not be easy even when it is true. The lawyers are of course paid for their time, and it isn’t difficult to run up legal fees in the tens of thousands. If an action against a journal is successful, then the damages might be in millions. Even if the case is won the journal may not be able to get its costs back. In short, a successful libel action could destroy a journal.

Editors thus need to be very careful to avoid publishing something that could lead to a libel action. Caution is appropriate. Just as surgeons who have experienced a death during an operation may be very careful, perhaps even too careful, when doing that operation again so editors can be scarred by the experience of a libel case.

The BMJ has not lost a case that has gone to court in the past 60 years (and perhaps ever, I’m not sure), but in the 60s the journal settled a case that ran for 11 weeks in court. The case cost the journal a quarter of a million pounds, a big sum in those days. And Stephen Lock, my predecessor as editor, spent a great deal of time on the case, which understandably made him very cautious whenever libel threatened. Recently the journal has been sued by Andrew Wakefield (“the MMR doctor”) under Texan law. One of the present editors of the journal spent a whole day preparing for and being grilled by American lawyers before the case was thrown out (but Wakefield is appealing).

There are often threats of action against the journal, and the editors are trained to spot potentially libellous material. The first question is whether a statement might be defamatory—that is, it might cause people to think less of the person being criticised. Such statements are common, and a steady stream of material flows from the journal to the specialist lawyer who advises on libel. He will point out what is libellous, and sometimes—indeed, often—it may be possible to edit the material to neutralise the threat of libel. Or it may be necessary to delete the offending material or ask the author to produce documentation to back up all that is said.

Often it will not be possible to reduce the risk of libel to zero, and a judgment has to be made on whether the small risk of an action is justified. This judgment must be made by the editors, and it’s here that the “risk level” of the editor comes into play. As with drugs or a surgical operation the benefits must be weighed against the risks. If an article is making a very important point about corruption then editors might be willing to accept considerable risk, although they will need to be as sure as they can that the material is true and that an action could be defended in court. If, however, the benefit is small then perhaps it is not justifiable to take even the smallest risk because the consequences can be disastrous.

Perhaps this was the case with my blog. I wrote about a lecture that included many cases of misconduct in medicine—several of which had been covered up by medical authorities. All of the cases have been published somewhere, but ironically one of the main points of the lecture was to illustrate how fear of libel had prevented some of these cases from being resolved. The main thrust of my blog was to praise the lecturer, who has suffered all sorts of threats and indignities for his pioneering work, and to argue that corruption in medicine has been and still is a problem.

I knew that some of the blog was defamatory, and I guessed that it would be sent to the lawyer. Death made his task easier because some of what was defamatory was about a dead person, and you cannot libel the dead—except in Utah. Where we fell out was over one case from many years ago. An individual was clearly defamed. He wasn’t named in the blog, and I don’t know his name. Somebody, however, might be able to identify him, and he would certainly be able to identify himself. So there was a risk of a libel action. And the fact that other publications have published the material without being sued doesn’t remove the risk because the man could chose to sue the BMJ even when he hadn’t sued the other publications. He might do so because the BMJ is richer and so he could win substantial damages or because the BMJ is more prestigious and so the defamation would have more impact.

But would he sue? This man must be extremely old and lives in another country. I doubt that he would ever see my blog. The danger of taking a libel action is not only the huge cost but also that the whole issue may make the news pages. Suddenly an episode that has been forgotten (and would remain largely forgotten despite my blog) is back in the news. The lecturer and my blog had accused him of defending for money a drug that proved dangerous and was banned. He would surely find it difficult to justify his defence of such a dangerous drug and would he want to?

My judgment, which is clearly biased, is that the risk was infinitesimal. The BMJ was willing to publish the blog only if I would change some words. I was willing to change some, but I wasn’t keen to make one change because it felt to me like a lie and because it undermined my point about corruption in academic medicine. (I’ve been circumspect and probably unclear here because I may still ask the BMJ to publish my blog.)

I will try and publish the blog elsewhere, and I think that the BMJ is being too cautious. I can’t pretend that the world will be a more wicked or even a different place if my blog is not published, but perhaps in the longer term and cumulatively the BMJ will allow villains to flourish in medicine by being too cautious.

Competing interest: RS was the editor of the BMJ and chief executive of the BMJ Publishing Group. The BMJ and some of the other journals for which he was responsible received many threats of libel actions during his time. One case was won but cost the BMJ (or rather its insurers) tens of thousands of pounds as costs could not be claimed from the penniless plaintiff. In another case the journal had to pay an out of court settlement of £8000 for an assertion that could not be proved. No cases were lost.

Richard Smith was the editor of the BMJ until 2004 and is director of the United Health Group’s chronic disease initiative.