Defamation Bill [HL]

Lord Taverne Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Taverne]

My Lords, I join in congratulating the maiden speakers. The noble Baroness, Lady Hayter, gave a warming and very telling speech, and my noble friend Lord Willis of Knaresborough made a delightful speech. He has an outstanding record as chairman of the House of Commons Science and Technology Committee and will be a great asset to this House. I will also say something about my noble friend Lord Lester. He has done a huge amount of work on the Bill, strongly supported by others, and this is only one example, as other speakers have pointed out, of the unique contribution that he makes through his expertise, energy and application. I do not know of any other Member of this House who has done more to prevent bad laws being passed and to see bad laws repealed. I also thank the author of the House of Lords' Library’s Explanatory Notes on the Bill, which many of us have found extraordinarily helpful.

Libel law is a complex subject. In my relative youth, more than 44 years ago, I was a lawyer, and even then I knew little about libel law, so I will not speak as a lawyer. In recent years, my main interest has been the promotion of the evidence-based approach in the public discussion of scientific issues and public policy-making. I declare an interest as chair of the charity Sense About Science, which was founded for this purpose and which has played a prominent part in the campaign to change the libel laws. I make it clear that the other prime movers were PEN and the Index on Censorship. It was not a campaign by newspaper magnates to enable them to continue their irresponsible attacks on individuals, which are a disgrace to our society and from which many have suffered, including the noble Lord, Lord Triesman.

I will concentrate on the effect of the law on scientific and medical publishing. I will start with examples and then draw general conclusions. Fiona Godlee, the editor in chief of the British Medical Journal, is a powerful witness for reform of the law. She has complained that the British Medical Journal has had to turn down important papers on legal advice. She states:

“One of our specialist journals would have published a series of case reports illustrating clinical signs suggestive of child abuse, but had to reject it on legal advice. The information was clinically important and should have been available to clinicians in the UK”.

She also cited the case of tobacco control, to which the noble Baroness, Lady D’Souza, also referred.

Professor Holm, editor of the Journal of Medical Ethics, has spoken about the unrealistic demands on time, manpower and finance from ensuring that articles are not liable to libel actions. He states:

“The very nature of the JME means that we deal with papers that are critical and that take a certain position about something or someone”.

He went on to explain that they got three or four cases a year where a laywer thought there could be a case for libel, then stating:

“We are part-owned by a research and educational charity, the Institute of Medical Ethics—we can't bankrupt them! We have to be careful and avoid libel action”.

He gave an example of a paper that he wanted to publish which alleged that the University of Toronto had suppressed research showing that a drug used to treat people with excess iron in their blood and liver was not as effective as had been claimed. After protests from the university, the journal’s lawyer suggested changes in the paper that the author refused to accept, so it could not publish the paper.

Another case concerned Professor Lacerda and the lie detector. Professor Lacerda, who is a professor of linguistics at Stockholm University, co-authored a review article on lie detectors that was published in the International Journal of Speech, Language and the Law in 2007. The article concluded that there was no scientific evidence to show that a particular lie detection technology actually worked. However, an Israeli manufacturer of lie detectors demanded that the article be removed. The journal complied. The journal’s editor was angry and upset that he was forced to remove a peer-reviewed paper from the public record, but he could not put the livelihoods of the journal’s staff at risk. He said:

“The company has not put forward any counter arguments, but has chosen to simply try to silence us”.

These are only a few of numerous examples that can be cited, but they have profound consequences. In some respects, the worst effects are the hidden ones that do not emerge into the public domain. The noble Baroness, Lady Bonham-Carter, gave some important examples of those. A huge amount of time is spent on libel reading and discussion with editors and lawyers about changes that might have to be made. The costs and time involved may be higher than a journal can afford. Important articles and papers may be delayed for years by the threat of legal action. Legal negotiations are often given as much weight in deciding whether to publish as peer review. Editors do not pursue stories that are scientifically important because they know that lawyers will not let them be published, while editorials are often inhibited from commenting freely on contentious issues by the threat of legal action. An article that has been shown to have been plagiarised or even fraudulent may not be withdrawn because withdrawal may lead to a libel suit for damage to the author’s reputation. To summarise, what choice does an editor have when forced to choose between an article that may lead to a ruinous libel suit and one that is safe but less contentious?

Finally, all the aces are in the hands of wealthy plaintiffs. Rich organisations know that they do not have to respond to a critical article or publication by argument and evidence; they can sue the author or the publisher and force them to withdraw and apologise. Numerous authors and editors have testified that they have had no choice but apology and withdrawal. Very few have fought and won. Ben Goldacre and the Guardian did recently. Simon Singh’s case was another. What is more, in that case, the plaintiff sued him personally rather than the newspaper. His heroic stand on principle prevailed in the end rather against the odds, as it seemed at first, thanks to an historic judgment by three of our leading judges. Even so, he paid a heavy financial price.

It cannot reasonably be contested that the law as it stands inhibits free scientific publication and debate. We should not exaggerate. Fortunately, we are still miles away from the kind of suppression of free criticism that marked the Lysenko era in the Soviet Union or Hitler’s announcement of the end of reason and the Nazis’ denunciation of orthodox science as Jewish science, which had a devastating effect on science in a country that, before the Nazis, had won more Nobel prizes per head than any other nation. Generally, science and free speech flourish in our democracy. However, the growing inhibition on some forms of free scientific expression generally, which has been demonstrated by the Libel Reform Campaign, is a step in the wrong direction along a very dangerous road.