Libel Law

David Davis Excerpts

Wednesday 1st December 2010 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

If the world has a capital of free speech, it is Britain. If it has a centre of free speech, it is this Chamber, as you know well, Mr Speaker. Yet in the last few years, Britain has become a watchword for something else—the use of our libel law to suppress free speech.

This is not an esoteric philosophical issue. Free speech is the mother of freedom of thought and freedom of thought is the mother of many virtues, including integrity, individualism and creativity. That is why Britain has a vigorous and successful tradition of high culture and science, as well as of democracy. As I will demonstrate, all those virtues of British culture have been suppressed, to a greater or lesser extent, by our libel law.

As a Parliament, we have failed to defend one of our nation’s primary virtues—free speech. We have also failed in the duty to protect the weak and vulnerable from the rich and powerful. More often than not, it is the rich and powerful who use the libel laws to intimidate the less wealthy and the less powerful, as I shall demonstrate. Perhaps the best demonstration that English libel law has become a weapon of the rich and powerful is the extent to which they choose to use the English courts over any other option and over the courts of any other country. When Boris Berezovsky sued a Russian TV company, he did so not in Russia, where the deed occurred, but in England. Similarly, Roman Abramovich chose to sue an Italian newspaper not in Rome, but in London.

In 2004, the Saudi billionaire, Khalid bin Mahfouz, launched a libel action against Rachel Ehrenfeld, the American author of “Funding Evil: How Terrorism Is Financed—and How to Stop It”. The book claimed that Mahfouz financed al-Qaeda. It was not published here, but it was available online. Mahfouz brought the case not in America or Saudi Arabia, but in Britain, and the court awarded him substantial damages. As a direct result, New York law was changed to prevent British judgments applying in the US and American national law is undergoing the same change.

Those rich men each brought their cases under the English judicial system, rather than in the appropriate forum, because English libel law is complex, clumsy, expensive and draconian. It is 140 times more expensive to defend a libel case in England than in other European nations. As a result, it favours the wealthy man who has the most financial stamina and can afford the most expensive lawyers. Although libel tourism is not the most important weakness in English libel law, it is the starkest symptom of how unfair it can be, compared with every other jurisdiction in the modern world.

Perhaps the best domestic example of this grotesquely expensive system is the Naomi Campbell case. A newspaper wrote about her drug problem. It was sued and lost on the grounds of breach of confidentiality. Although the story was true, the legal fees alone cost more than £1 million.

How did all that come about? English libel law was largely developed centuries ago by English judges, as an alternative to duelling to protect the honour of gentlemen. I am sure that no Member wants to see Hampstead heath littered with the bodies of dead journalists, but I am not sure how much of an improvement that new law was. It has been compounded with undoubtedly well intentioned European Union and European Court of Human Rights law, and we have ended up with dreadful unintended consequences.

One of the most egregious consequences has been the rise of the so-called super-injunction, which bans any reporting of a case at all. The most extreme of those was the Trafigura case, which you will remember, Mr Speaker. Trafigura was accused of dumping toxic waste on the Ivory Coast, and for a while its lawyers secured a ban on the reporting even of questions in Parliament. In so doing, they overturned the absolute right to free speech fought for and won more than two centuries ago by John Wilkes. That is a suppression of free speech in this country that no one in the House should countenance or tolerate.

There is worse yet: the crushing of free speech in science and medicine. Both those disciplines advance by conjecture and refutation, through the advancing of theories and the testing of them by experiment. Free dispute and unfettered argument are essential to that process. Yet we are witnessing, time and again, the use of English libel law by powerful commercial interests to suppress legitimate discussion of scientific fact and medical effectiveness.

That is not entirely new. A famous member of this House, William Cobbett, was bankrupted by a lawsuit in 1797 after he pointed out that the practice of bleeding victims of yellow fever probably killed a number of them. He fled the lawsuit and the victims continued to be bled, and of course continued to die.

In modern times, the starkest example was the thalidomide case. For some time, The Sunday Times was prevented from publishing articles alleging negligence in the manufacture and distribution of the drug, which, as Members will remember, caused terrible deformities in the children of women who took it in pregnancy. That judgment was eventually overruled, and the law was rebalanced slightly to favour free speech in the Contempt of Court Act 1981. Unfortunately, however, there are still actions by commercial companies and other vested interests to suppress criticism of medical products and practices.

I shall give an example. Henrik Thomsen, a Danish radiologist, raised concerns that Omniscan, a drug used to enhance medical scanner images, was causing crippling pain and even death in a few patients. Despite the fact that medicine advances by a process of critical appraisal, the maker of the drug, GE Healthcare, sued him in the British courts, clearly in order to silence him. The suit has been resolved, but another medical specialist, the eminent cardiologist Peter Wilmshurst, has faced similar treatment. At a cardiology conference not in Britain but in Washington DC in 2007, he criticised a product made by an American company, NMT Medical, to deal with symptoms of hole-in-the-heart syndrome. NMT sued Mr Wilmshurst not in America but in the English courts. He courageously decided to fight the case, specifically to defend free speech.

Time and again, commercial companies take such action to silence critics. The proper, responsible, scientific way of dealing with criticism in medicine is tousb present the data and confront the argument. Using the law to silence legitimate criticism is to put shareholder interest above public health and, sometimes, public safety.

The best known case in England, of course, is that of Simon Singh, who essentially called some of the claims of chiropractors bogus. The British Chiropractic Association sued him and, after a protracted legal battle, lost. Nevertheless, he ended up hundreds of thousands of pounds out of pocket in addition to losing two years of his life—two years of stress, anxiety and the prospect of financial ruin. A less courageous man would have buckled, and indeed most do. That, of course, is the purpose: to intimidate critics out of saying anything, or to force a humiliating retraction, effectively gagging the press from reporting such criticism.

The tactics used are carefully refined. They are known as “lawfare” and are designed to focus the financial intimidation on the individual who is least able to bear it. The most recent demonstration of that nasty tactic would be ludicrous—bordering on the farcical—were it not so serious in its wider implications. It involves a product, elegantly called “Boob Job”, sold at £125 a jar and produced by a company called Rodial. The Daily Mail sought the advice of a leading consultant plastic surgeon, Dr Dalia Nield, of the London Clinic. As one might expect, she questioned its effectiveness and suggested that if it had the physiological effects claimed for it by its producers, it might be dangerous.

Rodial threatened Dr Nield with legal action. It has not threatened the Daily Mail, which carried her comments, because it has the resources to fight back, just Dr Nield, to get the maximum intimidation for the minimum risk. The proper response of any self-respecting company would be to publish the detailed composition of its product and the data supporting its claims, and engage experts to test those claims and carry out safety tests. That would be the approach of a respectable company, but I am afraid that Rodial has not taken such an approach—it has taken instead the approach of a charlatan and a bully.

Of course, Rodial is not alone. When NMT threatened Peter Wilmshurst with a lawsuit, it did not threaten the BBC, which broadcast his comments, because the BBC can fight back. When the chiropractors sued Simon Singh, they did not sue The Guardian, which published his comments, because The Guardian can fight back. That is why it is called “lawfare”—it is the deployment of judicial shock tactics against the most defenceless part of the opposition. It is a disgraceful tactic, and it should not be possible under any decently balanced judicial system.

The effect of “lawfare” is to chill free speech in science, medicine and many other areas. In this age of the internet, that chilling effect does not stop at our borders. We should remember that English is the language of science. The impact of our dysfunctional laws will become more global as more corporations come to understand what they can do to use our laws to suppress criticism.

[Fiona Mactaggart (Slough) (Lab)]

I wanted to highlight the fact that “lawfare” operates not merely in science. My constituent, Hardeep Singh, has been battling for four years in the ludicrously named case of His Holiness v. Singh. He has been accused by a sect leader in the Sikh tradition of libel, and it has taken up four years of his life and thousands of pounds to defend his claim in a religious dispute that, in my view, is not able to be decided by the courts.

[Mr Davis]

The hon. Lady is entirely right. I used science and medicine to demonstrate the starker effects of “lawfare”, but she has demonstrated one of the reasons why we debated the law on religious hatred: to allow unfettered discussion of religion, which is another great tradition of British democracy. I apologise to her constituent because I think of his case as Singh II, but it is just as important as the Singh case I cited, because both demonstrate only too clearly that we must get a grip on British libel law to prevent it damaging every aspect of our culture and tradition of free speech.

That brings me to what we should do. Regrettably, there is no single, simple solution. This week is the first anniversary of the Libel Reform Campaign, which encompasses campaigning organisations such as PEN, Index on Censorship, Sense About Science and others. There are a variety of issues that we need to address.

The cost of defending libel cases should be brought down. One step would be not to remove jury trial, but to introduce a tribunal process to deal with all but the most serious cases. The Minister might also care to tell us about his Green Paper—published a few weeks ago, I think—in which he talks about contingent fee arrangements and their possible reform, which might be another way of reducing costs. The law should focus on protecting individual reputation, without allowing heavy-handed commercial intimidation. One step towards that might be not to allow commercial companies above a certain size—in fact, really rather a small size—to bring such suits unless they can, in advance, demonstrate financial damage.

The public interest defence—again, this is something that the hon. Lady will be interested in—is too vague and unhelpful to authors of legitimate criticism. A stronger and clearer defence than that provided by the so-called Reynolds defence should be instituted. In particular, there should be a broader definition of what constitutes fair comment. In the light of what I have said about scientific and medical concerns, such a definition should be designed to exclude scientific and medical dispute from the courts completely. There should be intelligent limits on what constitutes multiple publication. For a court case to be brought in Britain, a significant proportion—certainly more than 10%—of the publication should have been in Britain. As the House can see, there are many proposals—I have given only a short list—that need to be considered. I should like the Minister to confirm that the Government will be introducing a Bill in 2011; that he will consult Index on Censorship, PEN, Sense About Science and other campaigners before publishing it; and that the Government will correct this unintended and unwanted systemic failure in our judicial system.

I shall finish by quoting the Appeal Court judges in the Simon Singh ruling. Speaking about the words used by Simon Singh in his criticism of the chiropractors, they said that his

“opinion may be mistaken, but to allow the party which has been denounced…to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”

The judges went on to quote Milton, writing about his visit to Italy, from 1683 to 1689:

“I have sat among their learned men…and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought…that nothing had been there written now these many years but flattery and fustian. There it was…I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.”

When the judges had finished quoting Milton, they said:

“That is a pass to which we ought not to come again.”

I say to the Minister: it is a pass that the coalition Government ought not to allow to come again. To achieve that, we need clearly thought through and thorough reform of this bad law, to put free speech back at the pinnacle of public life in Britain.