The Defamation Act hasn’t done enough for scientists

Sue the straw-scientist, big corporations. Emilio Labrador

Scientists are rarely happy in UK’s libel courts. The threat to science from the UK defamation law is not so much that scientific publications have regularly been held to be libellous, but the distraction, the stress and, if unlucky, the expense of even successful litigation. The past few years have seen a number of important cases that have made many stand up for reform.

In NMT v Wilmshurst, for example, a heart device maker sued a scientist who while speaking to a writer at a scientific conference made adverse comments about the device’s effectiveness.

In Nemesysco v Lacerda, producers of speech recognition technology threatened to sue the author of a scientific journal article entitled “Charlatanry in Forensic Speech Science”.

In GE v Thomsen, a drug manufacturer brought proceedings against a scientist who at a conference gave a presentation questioning both the effectiveness and the safety of the drug’s active ingredient.

In Rath v Guardian, a vitamin salesman Matthias Rath sued The Guardian about a “Bad Science” column written by Ben Goldacre, which said that Rath “misled” people in South Africa about the comparative effectiveness of anti-viral HIV medication and its vitamin pills.

And in BCA v Singh, British Chiropractic Association (BCA) sued the author Simon Singh about an article in The Guardian that said that the association was “the respectable face of the chiropractic profession and yet it happily promotes bogus treatments”.

The scientists campaigned to make the Defamation Bill sponsored by the Coalition government into a law. In doing that they have been successful, because the bill has now become law as the Defamation Act 2013. Some of those campaigners are now celebrating. But are those celebrations justified?

Round and around we go

Two preliminary points need to be made. First, few libel cases against scientists actually succeed. In the Ben Goldacre and Simon Singh cases, for example, both defendants won important interim judgements, after which the claims were dropped. The Nemesysco and GE claims failed at an earlier stage than that. Nemesysco’s filing for libel appears to have been an empty threat. GE dropped the case on terms that permitted the defendant to repeat his assessment of the drug. NMT went out of business before its case against Peter Wilmshurst got very far, but its prospects looked poor all along.

Second, sometimes scientists are themselves the targets of assaults on their reputations. Those attacks can have very serious effects. Phil Jones, the University of East Anglia climate scientist at the centre of the hacked e-mails scandal was reported to have had suicidal thoughts as a result of the onslaught on his integrity. Such reactions are not uncommon.

Libel protects a fundamental interest we all have in maintaining our relationships with other people. If one feels threatened with the collapse of one’s social world, with ostracism, it can have serious effects on physical and mental health.

As a result, science can be threatened not just by libel actions but also by libel itself. Sweeping statements, such as “scientific disputes should never end in court”, forget that for the most powerful economic and political interests it is often easier and more effective to silence critics by publicly humiliating them than by threatening to sue for libel.

After all the struggle

What does the 2013 Act do? Most of it consists of codifying and changing the names of many of the defences to libel developed by the courts – “justification” becomes “truth”, “fair comment” becomes “honest opinion” and what lawyers know as the Reynolds defence (roughly, acting responsibly in reporting on a matter of public interest) becomes “Publication on matter of public interest”. Although some of these defences required some pruning and clarification, the effect of putting previously well understood legal doctrines into new words will be to increase uncertainty and so generate new litigation.

If the problem scientists faced was not the law itself but the threat of litigation caused by uncertainty about the law, that problem probably just got worse.

Two provisions, however, aim more specifically to protect scientists. Section 6 of the act provides a defence for statements in “a scientific or academic journal” which refer to “a scientific or academic matter” and of which an “independent review” has been carried out by the editor of the journal and at least one other person “with expertise in the scientific or academic matter concerned”.

Fair and accurate copies, extracts or summaries of such statements are also protected. The aim is to shield not only scientists but also science journalists such as Goldacre and Singh who rely on peer-reviewed papers.

There are, however, various problems with the section. Only journals are protected, not books, even though academic books often also go through a peer-review process. Perhaps worse, there is no definition of “scientific or academic” or of “expertise”. Both of those phrases will no doubt be litigated. Also, the independent review has actually to be “carried out”, which, especially in the case of editors, might be difficult to prove.

Second, fair and accurate reports of “proceedings of a scientific or academic conference” will be protected as long as they are published without malice and those claiming are given an opportunity to reply. The new protection would almost certainly extend to a new GE v Thomsen, but it is less clear whether it would prevent repetition of NMT v Wilmshurst. The problem is what will count as “proceedings” – does a conversation with a journalist count? What about comments from the floor?

The most important aspect of the act, however, is what it failed to do. Most instances of using libel to harass scientists involve corporations. There is a strong argument that corporate bodies should not be able to sue in defamation at all.

If the purpose of defamation law is to protect human social relations, there is no obvious justification for protecting non-human entities. But only a little progress has been made in that direction. Under section 1 of the act, a body that “trades for a profit” will in future have to show that it has suffered or will suffer “serious financial loss”. The problem is that it does not seem difficult for a medical device company, for example, to allege that adverse publicity for one its products will lose it sales. In addition, the requirement that the body “trades for a profit” seems to leave out altogether non-profit organisations such as the BCA.

Overall, then, the act does help some scientists some of the time, but it will not stop the threat of litigation altogether. The removal of the right of any corporate bodies to sue would have been a better solution. Even that would not have removed libel law from science completely, but since scientists are humans too, humans whose lives can be destroyed by defamation, they should perhaps be careful about what they wish for.