Since the recent Queen’s Speech, and its welcome inclusion of ‘A B I L L TO Amend the law of defamation’, I confess, despite welcoming such a positive development, that I’ve been scratching my head somewhat. I wonder that I’m missing something. I’m no lawyer (and my clarification-seeking e-mails to relevant bodies with obvious heavy workloads are apparently of insufficient priority), so am happy to be put right on anything here. But I don’t see the justification (yet) for some of the congratulatory back-slapping. I mean, hang on a minute, are we satisfied that this Defamation Bill goes far enough? Or that it sufficiently clarifies pertinent matters?
Nature‘s responding editorial seemingly delights in the Bill’s benefits to science. Which, being a scientific journal, is understandable. It cites the ongoing libel case brought against it by Mohamed El Naschie. But, as far as I can make out, this was an information/opinion article, not a peer-reviewed research paper. (Although I’m not sure, because we can’t read the thing. Why has it been pulled when verdict as to its libellous content still awaits?) Peer-reviewed publications were never the issue, were they? Or is it such, assuming the Bill gets through, that any opinion article in a peer-reviewed science journal must now also have those opinion(s) peer-reviewed? Doesn’t scientific discourse, by its impersonal, evidential, dispassionate nature, already cater for this? Nothing goes in without an editor’s assent anyhow. I’m not sure whether this is a potential recipe for (self-)censorship, or for abuse of free licence.
So, all good for scientists, then – providing they stick to peer-reviewed journals which, in case it need be stated, most of the public does not read. But what of the interested citizen (scientist/journalist) who seeks to venture an informed honest opinion outside the academic cocoon?
As Simon Singh vs British Chiropractic Association demonstrated, (one of) the reason(s) why our libel laws needed reforming was to protect the individual expressing informed opinion on matters of public interest, from organisations or corporations making unsubstantiated claims as to the efficacy of some product/treatment, etc. Anyone with half a quizzical brain must have frowned at the BCA’s refusal to accept the offered right-of-reply opportunity to cite the evidence in substantiation of its claims, thereby knocking Singh’s article off the pages for good. It didn’t because it couldn’t. The BCA bit off more than it could intellectually chew. And Singh, by his own admission, was financially able to stand his ground; plus he had a public profile, which is advantageous to garnering support. He is one of the heroic catalysts for the libel reform progress made. Yet, as I read him, he too is still concerned by the limitations of this Bill. I wonder what would have become of (a similar article by) someone less capable. And will they be any better protected if the Bill gets passed as it is? Are we to understand that, if something akin to Singh’s article was in future published in, say, Nature, it would automatically be untouchable? But if published by an informed public opinion holder operating outside academe, say in a national newspaper, or in a blog, would he/she remain vulnerable? As I read Section 5 of the Bill, the blogger is afforded little, if any, protection by his/her platform provider:
5 Operators of websites
‘(2) It is a defence for the operator [of a website] to show that it was not the operator who posted the statement on the website.’
All reputation (where the ‘reputation’ that corporations pay their ‘reputation managers’ and lawyers to bleat on about often really means profits ) should be honestly challengeable. Remember, this country’s libel laws have been ripe for abuse because they allow for corporations and organisations to bring libel actions, not because they necessarily want to fleece the defendant for damages, but because they seek to bring about retraction and stifle open debate – ie, censorship (by threatening to fleece the defendant). I am not convinced that this Bill provides better protection for the honest individual from such bullies. Nature‘s ‘Honest opinions’ editorial of 16/17 May 2012 states:
‘And would-be claimants will have to show that their reputation has suffered serious harm.’
No they won’t. Section 1 of the Bill states:
1 Serious harm
‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.’ (My emphasis in bold.)
This is explicated in the Bill’s accompanying EXPLANATORY NOTES document; specifically:
COMMENTARY ON CLAUSES
Clause 1: Serious harm
‘This clause provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The provision extends to situations where publication is likely to cause serious harm in order to cover situations where the harm has not yet occurred at the time the action for defamation is commenced.’ (My emphasis in bold.)
So the plaintiff does not have to demonstrate any actual overt harm; they can bring a case based merely on their prediction that it is likely to, and the onus remains on the defendant, even though there is no harm being ‘suffered’. And something else concerns:
4 Responsible publication on matter of public interest
‘(2) … in determining… whether a defendant acted responsibly in publishing a statement the matters to which the court may have regard include (amongst other matters)–
(i) the tone of the statement.’ (My emphasis in bold.)
Whence, then, satire?
If this Bill privileges scientists’ opinions in academic journals, whilst limiting them (and anybody else’s) in other public fora, it does not go far enough. And as it is (although I might be stretching my logic here), I am not entirely unconvinced that the ‘privileged statement’ defence might potentially be detrimental to public perception and trust of scientists, arrogantly sheltered in the academic peer-review bunker, wary of wider public pronouncement on controversial issues. Which would be regressive.
So, now I’ve exposed my over-hysterical lack of legal nous, feel free to put me right. I promise I won’t sue.