The UK government will reform the English libel laws, announced the Justice Minister Lord McNally today. The declaration was made at the second reading of a Defamation Bill put forward by Anthony Lester QC, libel lawyer and Liberal Democrat peer. (Telegraph, Guardian)
The government’s announcement came as a surprise to Lester, who said that while listening to the minister he had “wondered if I’m alive at all or whether I’m in heaven, because I never thought to hear a reply of that kind” (Telegraph).
English libel laws have been widely criticized for being ‘unbalanced’, favouring the protection of reputation over the freedom of expression. They are also thought to be unnecessarily complicated, outdated, and costly. (Nature editorial)
Recent libel cases have sparked debate about the laws and resulted in successful campaigns such as “The Libel Reform Campaign” by the organizations Sense about Science, English PEN, and Index on Censorship. One such case was the British Chiropractic Association suing science writer Simon Singh for having said they ‘happily promote bogus treatments’ in a Guardian article. Similarly, cardiologist Peter Wilmhurst was recently accused of libel by the company NMT Medical for criticizing a new heart device called Starflex, designed to close a type of hole in the heart. This raised questions about scientific discourse: Should scientific debate really be settled in the court room? And is it plausible that scientific journals should have to retract or amend papers due to threats of libel, when the papers have already gone through robust peer-review?
Current English libel laws are unique in that they put a great burden of proof on the defendant. When a claimant has proven that the words in question are defamatory, the law presumes in the claimant’s favour, assuming that the words are false. It is then up to the defendant to establish a defence, which can be a cumbersome and costly process. It is often easier to just remove the potentially defamatory content. This fear of libel charges has a ‘chilling effect’, as it can stifle academic debate and freedom of expression. (Defamation Bill explanatory notes)
Another problem with the libel laws is that they don’t recognize the fact that statements can be interpreted differently by different people. A defendant accused of libel has to show that their statement is ‘substantially true’— a so-called ‘fair comment’—which is a difficult case to win.
The media has no specific privilege serving ‘public interest’ under the law. If it did, it could perhaps have helped Simon Singh in justifying his criticism of the BCA—appealing to the public’s right to know. But instead, he had to prove he was making a ‘fair comment’. The whole process took 2 years and cost £200000 pounds. (Guardian)
The internet further complicates the application of libel laws, due to the so-called ‘multiple publication rule’, which means that every time a reader accesses a page it counts as a new publication. Although there is a one-year limitation period for libel actions, that time starts again every time a defamatory text gets downloaded on the internet.
Since foreign publications can be downloaded in the UK, it means that a foreign company can sue for libel here. Foreign companies suing each other in English courts — even when the circulation of the publication has been mostly elsewhere — is called ‘libel tourism’. In fact, the Wilmhurst case is an example of this: Wilmhurst is being sued in London by a US company for something he criticized at a US conference that was posted on a US website.
It is hard to speculate on whether Lester’s bill could have passed if the government hadn’t decided to step in, promising to reform the laws itself. The government plans to publish a bill of proposed reforms early next year, after a consultation over the summer. McNally said it will focus on the freedom of speech, protection of public interest debate, the multiple publication rule, as well as cutting down on libel tourism.