Disabled critics of ‘fit for work’ scheme have their online support forum axed

Libel threats from Paralympic sponsors Atos Healthcare forced public disability support forum CarerWatch to close in August 2011, after users criticised the company’s record in assessing government disability benefits. The private corporation threatened the internet host with legal action if the site was not plugged. Frances Kelly, the founder of CarerWatch, said at the time: “The sudden disappearance of a support group has caused a lot of distress and fear. Some (members) are ringing us in tears.” After public outcry, CarerWatch is now back online.

Tennis player sues press for reporting on his losing streak

In April 2008, Robert Dee was branded “the world’s worst tennis pro” by the press, after he lost 54 consecutive matches in straight sets in his first three years on the international professional tennis circuit. Whilst Dee’s performance was the worst ever run in the world ranking ITF / ATP tournament’s history, his representatives secured more than 30 settlements from the global media in payments and apologies. Dee lost once again in April 2012 when The Telegraph upheld its comments, becoming the only publication to contest Dee’s claims of defamation and leaving the courtroom victorious.

Icelandic libel tourists take Danish tabloid to UK courts

Danish tabloid newspaper Ekstra Bladet was sued in London by Kaupthing, an investment bank in Iceland, over articles that criticised advice the company had given to clients about tax shelters. Kaupthing claimed UK jurisdiction because some of the critical articles published online had been translated into English and Sigurdur Einarsson, chairman of the bank and subject of some of the articles, was resident in London. Ekstra Bladet was forced to settle the case before it went to trial. The newspaper carried an apology on its website for a month, paid substantial damages and costs to Kaupthing. Editors have since reconsidered their policy of providing English translations of their articles online.

Heart doctor risked losing house in headache-inducing case

NHS cardiologist Dr Peter Wilmshurst battled a four-year legal process after refuting the credibility of a product by US company NMT Medical claiming to eliminate migraines. The medical device manufacturer’s product (pictured) claimed to help by closing small holes in the heart, but when Wilmshurst’s self-designed clinical trial, called MIST, failed, he suggested in a TV interview that there was a fault with the product. Wilmshurst suffered serious financial loss in defending his statement, and the legal action against him only ended when NMT went into liquidation in April 2011.

Spinal trap

Science writer Simon Singh celebrated National Chiropractic Awareness Week by writing an article for the Guardian newspaper critical of the alternative treatment, which he said made “bogus” claims for healing without a “jot of evidence”. The British Chiropractic Association decided to sue, and a long and bitterly fought case followed, with the science of alternative medicine coming under scrutiny. The BCA eventually dropped the case, after judges decided that the article was written from “honest opinion”. But the writer remains considerably out of pocket.

Daisy Williams is an editorial intern at Index on Censorship

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In a statement released today, the company announced that “despite the company’s efforts to obtain additional financing and identify potential strategic transactions, it has failed to raise additional funds or enter into such strategic transaction and, therefore, it has entered into an Assignment for the Benefit of Creditors, effective immediately, in accordance with Massachusetts law”.

Dr Wilmshurst has been fighting since 2007 to defend his comments about a clinical trial of a heart device manufactured by NMT Medical. Losing the case could have meant he lost his house.

This news of NMT’s closure comes just weeks after Wilmshurst discovered he was facing a fourth libel suit over an interview he gave to BBC Radio 4 Today Programme piece on the chilling effects of England’s libel laws on medical science.

Wilmshurt told Index on Censorship: “It is good news that it seems that my libel case may now be over. However it has cost me all my free time for the last three and a half years. It has also cost hundreds of thousands of my own money and about £200,000 on the conditional fee agreement with my lawyers, Mark Lewis and Alastair Wilson QC. Now that NMT have gone into liquidation, we are uncertain how much of the money we will get back. There will be no compensation for the enormous amount of time my family and I have wasted in fighting the case.”

Solicitor Mark Lewis commented: “It looks like the nightmare is nearly over. After 4 years NMT looks to have gone out of business. Poor Dr Wilmshurst. The continual deployment of the libel laws to stop scientific discussion seems to be over. Peter Wilmshurst and his family enter the normal world blinking from the bright light of a case that is over.”

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Today in the High Court US medical device company NMT Medical was ordered to pay £200,000 into court in their libel action against cardiologist Dr Peter Wilmshurst. Master Foster ruled that if NMT Medical do not pay this money by 18 January 2010 their libel claim will be struck out and the court will decide how much of Dr Wilmshurst’s costs NMT Medical should pay.

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At various points in the year, the government, the courts and the police connived in the suppression of investigative journalism, scientific research and the reporting of human rights abuses. Libel legislation, the emerging privacy laws and the “super-injunction” were the weapons of choice in the battle to stifle debate and hide the truth.

Initially, MPs saw no need to intervene, defending a system that preserved the privilege of institutions such as the palace of Westminster. Robust journalism — holding truth to power — was deliberately conflated with tabloid intrusion. The scandal of MPs’ expenses reinforced their view that the media were out of control.

Matters suddenly changed in October when the assault on free speech reached the gates of parliament. The attempt by the law firm Carter-Ruck to prevent the Guardian from reporting a question from Paul Farrelly MP about the alleged dumping of toxic waste by the oil trading firm Trafigura was a direct challenge to the supremacy of the legislature.

Carter-Ruck was forced to back down, but the threat has not been seen off. It transpires that questions raised in parliament are, after all, not fully protected legally, making a mockery of an important part of the work of MPs.

Yet 2009 also witnessed the first co-ordinated and popular attempt to fight back. When Index on Censorship and English PEN launched their Libel Report in November, outlining 10 proposals for change, the response at home and abroad was astonishing. Two cases in particular stuck in the public consciousness: that of Simon Singh, a scientist who is being sued by the British Chiropractic Association; and Peter Wilmshurst, a cardiologist being taken to the English courts by an American company for remarks he made at a conference in the US. The latter has become another of those cases that highlights the absurdities of libel tourism, where the rich and powerful from overseas use the English courts to stifle free speech.

Index and PEN have since joined forces with the charity Sense About Science to launch a broader coalition. Stars such as Dara O’Briain and Alexei Sayle, MPs across all the main parties, lawyers and editors support the campaign.

Jack Straw, the justice secretary, has announced a working group to look at libel reform. Is this a classic attempt to kick the issue into the long grass? Many in the legal establishment are lobbying Straw to ensure it is. As for David Cameron’s Conservatives, the messages are similarly mixed. Yet pressure does work. In 2009, Straw repealed three ancient statutes on criminal defamation, seditious libel and obscene libel. Even by the embarrassing standards of the UK, these laws were hard to defend.

The libel reform campaign is not the only example of progress in adversity. The horror at the police tactics during the G20 protests in April led to a landmark report by the chief inspector of constabulary who condemned heavy-handed tactics, which he said infringe the right to free expression and protest.

In Northern Ireland in June, the Sunday Tribune correspondent Suzanne Breen won a major victory for the reporter’s right to protect sources. Breen came under pressure from police to reveal her sources within the Real IRA, which had contacted her to claim responsibility for killing two British soldiers. She successfully argued that revealing the sources would undermine her as a journalist and put her life in danger of revenge attacks from paramilitaries.

The courts themselves have come under attack from the government, with David Miliband doing his best to suppress information relating to the treatment of the former detainee Binyam Mohamed at the hands of UK and US intelligence services. The courts have six times rejected Foreign Office claims that the disclosure of documents in an open court would damage Britain’s relations with the US, a claim not even the US state department stands by. This week the case comes before the court yet again.

Despite reaching new lows in free expression in 2009, there might be grounds for optimism that, thanks to public pressure, politicians and lawyers are being shamed to concede just a little ground.

This article originally appeared in the Guardian

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At the launch of the Index on Censorship, English PEN and Sense About Science‘s libel reform petition this week, I heard other stories of people who’d been through the libel mill: the Sheffield Wednesday fans who got solicitors letters after criticising the club’s board on a fan forum; the Danish newspaper sued for questioning Icelandic banking practices; the science writers who dared challenge the claims of alternative therapists; and, perhaps most clear cut, down the line, couldn’t-be-any-more-wrong awful, the case of cardiologist Peter Wilmshurst, who could lose the roof over his head after expressing his medical view on the performance of a heart implant device. This isn’t just me shouting my mouth off, we’re talking about something really important here: heart surgery, life and death.

But our libel courts don’t seem to acknowledge this. They’re as archaic as the wigs and gowns worn by the barristers who make good livings defending dodgy oligarchs, greedy multinationals and egomaniacal politicians from “slurs” on their “reputation”. For example, Wilmshurst can be sued here for comments made in America to a Canadian website because the libel laws haven’t caught up with the internet; the simple fact that something can be read in England means claimants can come from anywhere in the world and use London courts to defend a reputation they never had in the first place. London has become a place to come to get away with stuff you couldn’t get away with anywhere else. To paraphrase Index on Censorship’s John Kampfner, we are a sort of judicial Cayman Islands.

While foreign claimants are a problem, it’s not just because they can come here that they do: they come because the courts are loaded against the defendant. It’s very rare for a person or organisation to defend a libel case successfully. I was one of the lucky ones.

But even then, we’re only talking about the cases that get to court. How many bloggers have taken down articles from the web after receiving a threatening letter? It’s impossible to say. This is where people such as Justice Eady, the judge who seems to decide on most libel cases, has it so badly wrong. Problem, what problem? he asks, citing the fact that relatively few cases make it to full trial. That’s just the point.

People are either bullied into settling out of court, and admitting wrongdoing even when they’re completely right, or they self-censor. How many people – editors, writers, scientists, football fans, bloggers – have a little Eady nagging away in a corner of their brain, constantly reminding them that there are certain subjects that are taboo, thanks to our archaic defamation laws?

Things have to change, and, hopefully, they are changing. The new libel coalition is up and running. People can sign up on www.libelreform.org and use the petition to lobby their MPs. There are indications that the government’s position may be shifting and that David Cameron might also be persuaded to act. They should, because the UK’s libel law is a global embarrassment and an affront to our liberties. That’s why I was happy to be one of the first people to sign the petition for libel reform. With an election coming, which party wants to style itself as an enemy of free expression by not joining me in supporting this campaign?

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