Libel Reform, Science and Breast Enlargement

There have been a number of stories in the press this week about a “libel threat” to a plastic surgeon “who cast doubt on the effectiveness of a £125 “boob job” cream“.  Rodial, the manufacturers of the cream – sold under the name “Boob Job” – claimed that it “provided a fast and safe alternative to expensive and painful breast enlargement surgery“.   It was said that “with the Boob Job at home treatment you can discreetly but dramatically increase your bust size by two and half centimetres“.  This gives rise to a number of obvious questions.  Some of these were raised an article on 30 September 2010 in the “Daily Mail”.  Dr Dalia Nield, a consultant plastic surgeon at the London Clinic said, perhaps unsurprisingly, that it was ‘highly unlikely’ that the cream would increase a woman’s bust size and questioned the amount of information provided by Rodial.

Dr Nield was quoted by the “Daily Mail” as saying

‘Similar products have not worked in the past.  The manufacturers are not giving us any information on tests they have carried out. They are not telling us the exact ingredients in the product and how they increase the size of the breast.’

So far all this is exactly what might be expected.  However, the case is in the news because of the “libel reform” angle.

It appears that some time last week Dr Nield received a letter from solicitors acting for Rodial.  This attracted immediate widespread media attention.  The “Daily Mail” weighed in with an article under the headline “The right to speak out: Doctor who questioned efficacy of ‘breast-boosting’ cream threatened with libel action“,  the Guardian had “Cosmetic surgeon may be sued for daring to question ‘Boob Job’ cream” and the Press Gazette “Surgeon faces libel over ‘boob cream’ comments“.  The Times, from behind its paywall, told readers that

“One of Britain’s leading consultant plastic surgeons has been threatened with libel action for voicing her doubts about the effectiveness of a breast enhancing cream“.

The Libel Reform Campaign was quick to become involved.  Jonathan Heawood of English PEN was quoted as saying

“It seems odd to be suing someone for giving their expert view. Dr Nield spoke out to help protect people’s safety. At this rate, the only option for doctors appears to be total silence – which would go against their public spirit and their integrity as doctors.”

Dr Evan Harris of the Libel Reform campaign said

“Libel threats by companies, against clinicians and researchers on a matter where the public interest demands the maximum possible scientific and media debate, can be seen as a form of bullying, and is why radical libel reform is both vital and urgent. The cases we hear about – where doctors and scientists, and the newspaper or journal, stand up to the threat of costly and uncertain court action – are only the tip of the iceberg because most will simply be forced retreat in the face of a libel suit.“

The matter was raised in the House of Commons by Lib Dem MP Andrew George who said that Mrs Nield has “apparently been threatened with a libel suit”.

Two questions arise from this: what actually happened? and what relevance does this have for libel reform?

In relation to the first question, readers of the press would be forgiven for concluding that that Dr Nield had received a letter containing a threat to commence libel proceedings.  This does not appear to be the case.  Although the letter does not seem to have been published it appears from the “Daily Mail” report that Rodial’s solicitors wrote to her to “demand detailed explanations of her remarks and warning her to ‘seek independent legal advice’“.  Her solicitor is quoted as saying that “Any reasonable person would interpret the correspondence from Rodial’s solicitors as a threat of a libel action“.  But a person who intends to bring a libel claim must write a letter in accordance with the “Pre-Action Protocol for Defamation” which must, among other things, set out the factual inaccuracies in the words complained of.   It does not appear that any such letter was sent.

It may well be that the letter which Dr Nield received was reasonably interpreted as a threat but, as we understand the material in the public domain, she has not actually been threatened with libel proceedings.   But no one has actually been “sued” and, as far as we are aware, no proceedings have actually been “threatened”.  This appears to be a case of a “warning letter” rather than the first steps in legal proceedings.

The nature of the letter is important in relation to our second question: what relevance does this story have for libel reform?  The short answer is “none at all”.  The Libel Reform Campaign has raised a number of serious issues concerning the law of libel which have been debated extensively on this blog and elsewhere.  However none of the reform proposals would have any direct impact on a case of this kind.

Whatever the strength of the defences available to scientists (or anyone else) they will not prevent the writing of pre-action letters – much less “warning letters”.   Furthermore, reform will not prevent bad claims being launched.  Even the total removal of the ability of corporations to sue would not prevent letters of claim from the company’s management.  In the USA, despite the presence of the world’s strongest protection for publishers, extraordinary libel threats and bizarre libel actions are common.  There are no current proposals to include anything in the Libel Reform Act 2010 which will prevent such threats being made in the future.

Unmeritorious “warning letters” require robust responses.  Although we have not seen the letter in this case, we have no doubt that Dr Nield’s solicitors, Preiskel & Co, will respond in an appropriately robust fashion.   It seems highly unlikely that any libel action will result from Dr Nield’s remarks.  The case does not, however, support any general arguments for libel reform or the protection of science writing.