English libel law stifles freedom of expression worldwide - NCCG.ORG Ning Network Archive 2008-10

Our libel law is out of kilter with the rest of the democratic world, encouraging 'libel tourism' and the erosion of free speech in other countries, writes Simon Singh

The report Free Speech is Not For Sale makes several recommendations for reforming English libel law. Photograph: Rex Features/NXB

I have just returned from the launch of Free Speech is Not For Sale, the report of a year-long inquiry into the impact of English libel law on freedom of expression. The report, written by Index on Censorship and English PEN, is a stark summary of why authors, journalists, bloggers, scientists and other academics around the world fear being sued for libel in the English courts.

It is well known that writers face an uphill struggle winning a libel case in England. Not only is the writer guilty until proven innocent under English libel law, but there is no robust public interest defence and the definition of fair comment is very narrow.

Worse still, the horrendous costs of a libel case mean that losing can result in a legal bill running to over £1m (even if the damages are just £10,000).

Those who defend the status quo often argue that the only defence required is accuracy, and that writers simply need to get their facts right in order to win a libel action. Unfortunately, the sheer cost of mounting a libel case means that writers often apologise for an article rather than defending it, even if they are confident about the accuracy of the contents.

There is the possibility of losing, which could bankrupt both the writer and the publisher. But even if the ultimate judgement is favourable, this does not mean the defendant will recover all his or her costs, which could result in a net loss running to over £100,000.

This is exactly what happened when the Guardian and Ben Goldacre were sued for libel by vitamin manufacturer Matthias Rath, who had published adverts in South Africa denouncing Aids drugs as ineffective, while promoting his own supplements. Ben defended his article and eventually the case was dropped, but the Guardian has not recovered all its legal costs. It is still £175,000 out of pocket and Ben was put under severe stress for 18 months.

The new report has several recommendations, including cost-cutting (by capping costs and setting up a fast and cheap libel tribunal) and levelling the playing field (by creating an effective public interest defence and by forcing claimants to prove damage and falsity).

The need for change is urgent. The report concludes with an appendix of case studies, including my own ongoing libel case against the British Chiropractic Association.

However, these cases represent only the tip of the iceberg. There are many others, such as that brought against the English cardiologist Peter Wilmshurst. He is being sued by a US company, NMT Medical Inc, for an article written by a Canadian medical journalist and published on an American website. The journalist was reporting a lecture given by Wilmshurst at a major medical conference in the US.

The company could have chosen to sue Wilmshurst in America, but I very much doubt that the case would have got past first base. Instead, NMT sued Wilmshurst in London, which has become the libel capital of the world. This is a classic example of "libel tourism", which has arisen because English law is so out of kilter with the rest of the democratic world.

I suspect his lawyer advised him to back down and apologise at the outset, which would have been the cheapest and quickest solution, but it seems Wilmshurst has chosen to fight on despite all the adversities that the English justice system throws at him.

Even more worrying than Wilmshurst's case (and the PEN and Index on Censorship case studies) are all the articles that are watered down before they are published and all the articles that are not even published or commissioned for fear of libel, the so-called "chilling effect" of libel.

Today's report is a clear reminder that English libel laws need to change. America has already realised that there is something fundamentally wrong with our system and is taking action. American states are beginning to pass laws to protect their citizens from libel actions in the English courts. In short, English libel judgments will soon carry no weight in America.

In another move aimed at protecting Americans from our libel law, a Commons select committee has received a submission from American publishers who are considering stopping the export of their newspapers to the UK and blocking their websites here.

I have previously written that the problem with English libel laws is not so much that they stop me from writing about important issues, but rather that they stop you from reading about such issues. If the US stops exporting its free press to us, this will be the ultimate proof.

Simon Singh is an author, journalist and TV producer specialising in science and mathematics

http://www.guardian.co.uk/science/2009/nov/10/english-libel-law-sim...

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