In this feature we revisit some older posts which may still be of current interest. This was first posted on 22 February 2010
The Simon Singh libel case (discussed here) has generated huge media interest, partly as a result of a very effective campaign by the defendant himself. He has has recently appealed to supporters to gather 100,000 signatures on a petition to reform the law of libel. It appears that it has already attracted over 40,000 signatures and, at a lobby of parliament this week, attracted the Lord Chancellor and Justice Secretary himself to announce some modest reforms to the law (see our recent post here).
In seeking this support, Mr Singh relies on five points none of which, on analysis, provide serious or substantial support for the argument that the English law of libel is in need of radical reform. The points are as follows:
(a) English libel laws have been condemned by the UN Human Rights Committee. We need to look at what the Human Rights Committee actually said. The relevant comment is found in a document called “Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding observations of the Human Rights Committee” (at paragraph 26) where the committee says this
“The State party should re-examine its technical doctrines of libel law, and consider the utility of a so-called “public figure” exception, requiring proof by the plaintiff of actual malice in order to go forward on actions concerning reporting on public officials and prominent public figures, as well as limiting the requirement that defendants reimburse a plaintiff’s lawyers fees and costs regardless of scale, including Conditional Fee Agreements and so-called “success fees”, especially insofar as these may have forced defendant publications to settle without airing valid defences. The ability to resolve cases through enhanced pleading requirements (e.g., requiring a plaintiff to make some preliminary showing of falsity and absence of ordinary journalistic standards) might also be considered”.
The word “condemnation” is, perhaps a little strong as a description of these remarks however, the substance of the points made is to the efffect that English libel law should adopt a number of US libel law doctrines which assist defendants. As Lord Hoffmann pointed out in his lecture on libel tourism, this is a remarkable proposition as the US rules proposed appear “to prevail nowhere except in the United States” (para 18). These doctrines are probably incompatible with the International Covenant on Civil and Political Rights which the Committee is supposed to be monitoring (which includes in Article 17 a right to the protection of honour and reputation). These doctrines are clearly incompatible with the United Kingdom’s obligations under the European Convention on Human Rights (Article 8 of which requires the state to take positive steps to ensure that reputations are properly protected, see our post here).
(b) These laws gag scientists, bloggers and journalists who want to discuss matters of genuine public interest (and public health!). The law of libel does not “gag” those who make true statements, act responsibly or confine themselves to comment. It “gags” those who make irresponsible false factual allegations. This does not, on its face, appear to be an unreasonable approach. As pointed out in our earlier post on the Singh case the issue there is, in substance, whether he used words which did not properly reflect his stated intentions. All the “scientists, bloggers and journalists” are prevented from doing is making false and irresponsible statements about others. If a person accuses someone else of wrongdoing then they ought to be prepared to defend their accusations.
(c) Our laws give rise to libel tourism, whereby the rich and the powerful (Saudi billionaires, Russian oligarchs and overseas corporations) come to London to sue writers because English libel laws are so hostile to responsible journalism. The myths of “libel tourism” have been effectively demolished by Lord Hoffmann (see our post here). As we pointed out in a recent post far from being the “libel capital of the world”, London is a libel backwater with a level of claims less than one half of the European average. It is not clear why, if a person’s reputation is damaged in this country he should be barred from bringing action just because damage has also been caused elsewhere. If an individual has no connection with the United Kingdom and his or her reputation has not been substantially damaged then the action can be struck out as an abuse. If, on the other hand, an individual or corporation has a reputation to protect in the United Kingdom it is difficult to see why a defendant should have a defence simply because he has done even more damage to that person’s reputation abroad. The Ministry of Justice have proposed modest and limited changes to the Civil Procedure Rules to provide further protection to foreigners who are being sued in Britain for libel. These will assist in preventing libel claims being brought which have no proper connection with England – which is all to the good. The issue was investigated by the Libel Working Group (see its Report) – there is no “large scale” libel tourism problem as suggested by the petition.
(d) Vested interests can use their resources to bully and intimidate those who seek to question them. The cost of a libel trial in England is 100 times more expensive than the European average, and typically runs to over £1 million. The costs of libel cases are scandalously high – but this cuts both ways. Vested interests can try to use the law to silence their critics and rich and powerful media corporations can also use their resources to bully and intimidate those whose reputations are damaged by false defamatory publications. The “long pocket defence” is at least as common as the “rich bullying claimant”. There are strong arguments in favour of quicker and more effective remedies for both sides but, in the words of a recent paper by Professor Alastair Mullis and Dr Andrew Scott (Something Rotten in the State of English Libel Law? A Rejoinder to the Clamour of Reform of Defamation).
the reality of most libel actions – the fact that they involve instances of damaging inaccuracy perpetrated by multinational media corporation defendants and challenged by relatively impecunious claimants
must not “get lost in the narrative on the need for reform“.
(e) Three separate ongoing libel cases involve myself and two medical researchers raising concerns about three medical treatments. They face losing £1 million each. In future, why would anyone else raise similar concerns? If these health matters are not reported, then the public is put at risk. As the earlier post makes clear Mr Singh’s action is not about “medical treatments” but about whether the words he used amounted to an allegation of bad faith. One of the other claims was the libel action brought by G E Healthcare against Danish radiologist Henrik Thomsen. However, it has now been reported that this claim has been withdrawn by the claimant. We do not know what the merits of the third claim are but these will doubtless be determined in due course.
Put shortly, the reasons advanced in favour of reform do not support the case being made. Reform of English libel law should be a carefully considered, balanced, exercise – protecting the rights of all involved, claimants and defendants, rich and poor. Proper protection for the media must be balanced by proper protection agianst damage to reputation by false and irresponsible journalism. That balanced case for reform has not been advanced so far.