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Opinion: “The chill on scientific debate: could an old solution be re-heated?” Godwin Busuttil

In June 1971 the Lord Chancellor and the Lord Advocate appointed a Committee “to consider whether, in the light of the working of the Defamation Act 1952, any changes are desirable in the law, practice and procedure relating to actions for defamation”.  The Report produced by this Committee on Defamation, which came to be known as the Faulks Committee after its chairman Mr Justice Faulks, was presented to Parliament in March 1975.

At paragraph 232 of this Report, under the heading “Technical and Scientific Journals”, the Faulks Committee made the following recommendation

We think that there should be a new statutory qualified privilege for articles of a technical or scientific nature in genuine technical and scientific journals.  For example, doctors should be allowed to write with reasonable freedom in medical journals without having to worry too much over the possibility of a libel action.  We recommend accordingly.  In order to prevent journals pretending to be technical or scientific to enjoy this privilege, the majority of us consider that the statute should provide that all journals seeking to rely on it must be approved by and registered with an appropriate authority, such as a government department with special responsibilities in the field of technology and science, the precise identity of the registration authority being, however, a matter for administrative decision by the Government.

Consistently with this recommendation, clause 11(2) of the Draft Defamation Bill included at Appendix III to the Report provided as follows:

“Publication in a technical or scientific journal approved by and registered with the Secretary of State of an article of a technical or scientific nature shall be protected by qualified privilege”.

This recommendation was not adopted, although some years later in Vassiliev v Frank Cass & Co Ltd [2003] EWHC 1428 (QB); [2003] EMLR 33 Eady J ruled that the publication at issue – an article in a journal called Intelligence and National Security, “a specialist publication with a specialist readership who subscribe to it”, with about 146 subscribers in the UK – attracted qualified privilege at common law because it consisted of a “specialist subject matter” in which publisher and readers shared a common interest (see paras.2, 8 & 20 of the judgment).

In the wake of recent complaints about the threat of libel actions having a chilling effect on scientific debate, one wonders whether if Parliament were belatedly to act upon the Faulks Committee’s recommendation that might go some way to address the perceived problem?

Godwin Busuttil ©2010

Godwin Busuttil is a Barrister at 5RB

1 Comment

  1. Alastair Mullis

    An interesting proposal (as ever from Godwin Busitill) to which I have two initial comments. First, there are thousands of academic journals. Is it really a sensible use of tax payers’ money to set up another government quango to judge whether a journal is of a scientific or technical nature to belong on the qualified privilege register?

    Second, while I might have some confidence that some editors / peer reviewers of legal journals would at least have some knowledge of the law of libel and therefore read the article with this in mind, I would not be so confident that those from other disciplines would approach the task in the same way. Why should the fact that two scientists who have peer reviewed a journal submission and described it as scientifically sound mean that it is thereby protected under the law of libel? Would everything in the article be protected (assuming not malicious) or only those statements / imputations directly relevant to the scientific subject matter?

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