“Laws are like sausages – it is best not to see them being made”; a phrase commonly attributed to Otto von Bismarck seems apt for attempts to reform our archaic libel laws. The last wholesale attempt to get libel law right was in 1843, making Robert Peel our last “libel reforming” prime minister. Depressingly, the sausage cliché is younger than much of the parliamentary law that dictates what we can and can’t say.
It’s hard to overstate how chilling to free speech the current law is. In 2010, President Obama signed into law the US Speech Act protecting Americans from libel judgements made in the high court here. John Whittingdale MP, the chair of the culture, media and sport select committee described this as a “national humiliation”. Our publication rule laughably predates the light bulb, originating in a case won by the notoriously litigious Duke of Brunswick in 1849. Thanks to this case, if you unknowingly copy a libellous statement and publish it on your blog, you could receive a threatening legal letter.
Thankfully, the government will be taking action on “libel tourism” and updating the publication rule for the internet age with the defamation bill that is currently passing through parliament. However, in some ways, the bill is a missed opportunity, with no new public interest defence and no action taken to stop corporations suing individuals.
Getting libel reform right means giving citizens a new public interest defence. Such a defence would have protected libel victims such as Dr Ben Goldacre,Simon Singh and cardiologist Dr Peter Wilmshurst – all of whom were dragged through the courts after writing on important matters of science. A strong public interest defence will protect NGOs and academics from libel actions when they speak out on the dumping of toxic waste by multinational corporations or rampant tax evasion by banks. This defence is crucial – it’s near-impossible for scientists to prove the absolute truth of their research in particular where there are constant breakthroughs in our knowledge.
It’s chilling to think that Wilmshurst was sued for pointing out possible problems with heart devices. In the four years he fought his case, patients continued to have these devices implanted in their hearts. Some then needed extensive surgery to have them removed because of the fault. If his concerns hadn’t been silenced by his four year libel case, doctors may not have recommended this treatment.
A new public interest defence will also protect NGOs and citizen journalists who have got a minor fact wrong, but are willing to correct or clarify it. As it stands, with no new protections, the bill would not have helped many of the cases that spurred 60,000 people to sign the Libel Reform Campaign petition. It was the intention of the government to get this right. Justice minister Lord McNally told Singh at a packed Libel Reform Campaign meeting that he’d be reforming the law so that scientists couldn’t be dragged through the courts again. His hard work on this issue is being undermined by the lack of this defence.
The defamation bill will do little to stop corporations suing individuals. This may be for ideological reasons, but in a globalised world where big corporations increasingly dominate the public space, letting them sue individuals is manifestly unfair. Across parliament, Conservative MPs such as Peter Bottomley and David Davis, Liberal Democrats Tom Brake and Julian Huppert and Labour’s Rob Flello and Paul Farrelly have questioned whether large companies really do need to resort to suing citizens.
With PR teams and laws to stop anti-competitive practices, firms do have alternatives. The law of libel was never originally intended to cover non-natural persons. The law is there to compensate damage to an individual’s reputation and the psychological impact this has. But companies don’t have psychological integrity, ie feelings. Should they get damages for defamation?
A huge effort has gone into the Libel Reform Campaign so far. 60,000 supporters have lobbied their MPs in person, held pub meetings, events in parliament, roundtable discussions with lawyers and international human rights groups, a huge comedy gig in central London with help from 60 civil society organisations. On Wednesday comedians and friends of science Dara O’ Briain, Dave Gorman and Brian Cox will join us in parliament to lobby MPs. It’s not too late for the government to strengthen its defamation bill.
In the meantime, readers can email their MP to ask them to put pressure on ministers. Wholesale libel reform only comes around every 170 years – anyone who cares about free speech cannot afford to miss this opportunity.
Mike Harris is Head of Advocacy at Index on Censorship