Healthy Skepticism Library item: 15684

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Publication type: Journal Article

Green DA.
Don't criticise, or we'll sue
New Scientist 2009 May 13; (2708):
http://www.newscientist.com/article/mg20227086.200-comment-dont-criticise-or-well-sue.html

Full text:

CHALLENGING the scientific validity of a product or claim can be fraught with danger. Increasingly, such challenges are leaving scientists and science writers facing an expensive libel action before the English high court. Many individuals and publications have been threatened with libel actions, and some have had proceedings launched against them. Many more writers have had their work edited before publication to avoid any risk of such legal action.

Though the court’s jurisdiction extends only to England and Wales, these actions can threaten scientists and writers wherever they live and work. English libel law can be used to discourage or prevent publication anywhere in the world if what is published will be seen by even a few readers in England or Wales. Any English-language publication can thus be affected.

It is against this troubling background that on 7 May a preliminary hearing of a case brought against the science writer Simon Singh by the British Chiropractic Association (BCA) was held in London. The case concerned an opinion piece in The Guardian newspaper in which Singh criticised as “bogus” the use of chiropractic for treating various children’s ailments. The BCA complained that it had been libelled, and launched an action against Singh (but not The Guardian). The hearing went against Singh (see “Libel victory for alternative medicine”).

The BCA’s case is part of a trend in that many of the recent threats and actions are responses to criticisms of complementary and alternative medicine (CAM). In some of these cases one could fairly argue that simply producing scientific evidence would settle the issue. Despite this, it is not unusual for CAM practitioners to threaten a libel action against anyone who publishes doubts about the scientific validity of their treatment.

It is not unusual for alternative medicine practitioners to threaten a libel action
In one such case, writer Ben Goldacre and The Guardian were sued by Matthias Rath, who has promoted vitamin supplements in southern Africa for people with AIDS. Rath eventually withdrew the action, but there are other examples outside of CAM.

Scientists and journals are also finding themselves on the wrong end of libel threats and actions. Peter Wilmshurst, a consultant cardiologist at the Royal Shrewsbury Hospital in Shropshire, UK, is being sued for libel by the medical devices company NMT Medical of Boston, Massachusetts, over comments he made to a US online news service about one of its devices. Wilmshurst was the co-leader of a clinical trial of the device.

Similarly, Israeli company Nemesysco has reportedly threatened two researchers with action if they continue to publish research critical of the company’s lie-detector technology. A peer-reviewed article by the two in the International Journal of Speech, Language and the Law (vol 14, p 169) was removed from the journal’s website after Nemesysco complained to the publisher that it was “highly defamatory”.

It may be that the statements that led to these actions were indeed libellous. It seems entirely wrong, however, that any scientific debate can be settled in this way.

In large part, this situation is caused by the expansive nature of English libel law. To launch an action, all a claimant needs to contend is that the published statements constitute a libel – that is, a statement which defames their reputation. The claimant can be an actual person or a “legal person”, such as a company.

Once the claimant has established they have a reputation in England, and that there is a defamatory statement, they have an automatic right to bring legal proceedings without having to show any damage has been suffered. It then falls to the unfortunate defendant to prove before the court, often at considerable expense, that the statement was defensible. This is the notorious “reverse burden of proof” which, for many, discredits English libel law.

There are, of course, defences against libel – most importantly that the defamatory statement was true or fair comment. But defending a libel action is a risky business. A defendant who loses their case is likely to have to pay the claimant’s legal costs as well as their own. A full trial can cost a significant sum of money. In practice, when faced with the prospect of paying such costs, most defendants choose not to defend the action and instead make amends to the claimant such as retracting the statement or publishing an apology.

The nature of English libel law also means that threats can readily be made against any English-language publication, no matter where it is written or produced. As long as there has been “publication” within England, even to a handful of subscribers or internet viewers, and as long as the claimant can establish that they have a reputation in England, then the English courts may decide to hear the case regardless of the nationality or location of the claimant and the defendant.

What’s more, if the claimant wins, the judgment can be enforced in other jurisdictions. This so-called “libel tourism” has become a cause for international concern. The state of New York has gone so far as to legislate to prevent English libel judgments being enforced there.

Libel law exists for a reason and the defences are supposed to allow reasonable debate, but in my view the system is open to abuse to stifle such debate.

There are some causes for optimism: the UK parliament is examining reforms to the law. But as things stand, it is too easy to bring a libel action in respect of any statement which can be seen as being critical. No responsible scientist, journal editor or writer should have to face this chilling prospect. There is something deeply wrong that legitimate scientific criticism can be silenced in this way.