It’s time to stop English law being used by the rich and powerful to stifle honest criticism, says Simon Singh
By Simon Singh
Published: 8:03PM GMT 22 Feb 2010
On Tuesday morning I will appear at the Court of Appeal in the latest round of a libel battle that has already lasted almost two years, and which could easily continue for another two years. It has cost me more than £100,000 in legal fees and this could double before we reach a final judgment.
What did I write that was so terrible? I published a newspaper article raising concerns about chiropractors who use spinal manipulation to treat children for conditions such as colic, ear infections and asthma. I thought that it was important that parents were aware of the shortage of evidence surrounding such treatments, but the British Chiropractic Association disagreed and sued me personally for libel.
On Monday, I spent the evening with Dr Peter Wilmshurst, who is in a very similar predicament. Wilmshurst, an eminent British cardiologist, is being sued for libel by an American corporation called NMT for questioning trial data relating to a new device. Starflex is supposed to close a hole between the right and left atriums of the heart and help reduce migraine, but Peter is not convinced.
Dr Wilmshurst is not a scaremonger, but a doctor of the highest integrity who won the 2003 HealthWatch award for his courage in challenging misconduct in medical research. However, his reward this time has been a two-year legal battle that could bankrupt him.
When I asked why he bothered to fight on when it would be so much easier to back down and apologise, he replied: "If I fail to speak out then I am not doing my job as a doctor and I am breaking the Hippocratic Oath. I’d rather be sued for libel."
Our cases and others have helped spark a major campaign for libel reform, whose backers range from the Astronomer Royal to the Poet Laureate, from the editor of the British Medical Journal to the editor of Private Eye, and from Helena Kennedy QC to Stephen Fry. They all realise that the libel law of England and Wales is fundamentally flawed.
The first problem is clear. A libel case is so horrendously expensive that most writers, scientists and journalists cannot afford to defend their writing, even if they are convinced it is accurate and important. These costs can easily run to over £1 million and are wholly disproportionate to the damages involved, which might be less than £10,000.
A study by Oxford University found that English libel cases cost over one hundred times more than those on mainland Europe. This is even more shocking when you bear in mind that defendants can still be £100,000 out of pocket even if they win because there are always legal costs that cannot be recouped from the other side. And, of course, nobody ever recovers the lost time.
The second set of problems is linked to the fact that we have some of the most draconian libel laws in the democratic world, inasmuch as they are extremely hostile to writers. Defendants are guilty until proved innocent, a reversal of normal practice. On the other hand, claimants do not even need to prove that they have been damaged in any way.
Moreover, there is no robust public-interest defence. This sort of defence exists in many other countries to offer some level of protection for those who are writing about matters that are clearly important to the public.
I have yet to meet a single MP who is not concerned about the state of our libel laws and how they hinder free speech and the fair discussion of ideas. Indeed, some 200 MPs have signed a Commons Early Day Motion in support of libel reform. Unfortunately, that still leaves many who have not committed themselves, though those still sitting on the fence should take a look at how the rest of the world views our libel laws.
First, in 2008 the United Nations Human Rights Committee heavily criticised English libel law because it discourages ”critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work”. Second, America now has so little respect for English libel law and the way it is used to crush debate that it is passing legislation state by state to block its impact on American citizens.
Third, US newspapers, including The Boston Globe and The New York Times, are now so terrified of England’s oppressive libel law that they told an inquiry conducted by the Culture, Media and Sports select committee – whose report is published tomorrow – that "leading US newspapers are actively considering abandoning the supply of the 200-odd copies they make available for sale in London." When it comes to censoring publications and blocking online content, it is arguable that Britain has an even worse record than China.
Of course, not everyone hates English libel laws. In 2005, the Saudi billionaire Sheikh Khalid bin Mahfouz sued the American author Rachel Ehrenfeld for publishing Funding Evil, which discussed how terrorism is funded. The case was held in London, because an international businessman such as Mahfouz can claim a reputation in almost any jurisdiction and the book was sold in this country; in fact, a grand total of 23 copies were sold in Britain.
Mahfouz was able to play high-stakes poker with Ehrenfeld and push a $1 million stack of chips on to the libel table. Ehrenfeld and her publishers could not afford such losses as it would have meant bankruptcy, so they backed down, settled early and paid £30,000 damages and £80,000 in costs.
Other cases of ”libel tourism” include a Ukrainian business suing two Ukrainian publications in London, an Icelandic bank suing a Danish newspaper in London, an American healthcare corporation suing a Danish researcher in London, an Israeli technology company suing a Swedish professor of linguistics in London, the Trafigura case and so on.
The good news is that the Ministry of Justice has just set up a working group to examine libel reform. While it is busy thinking of the best way forward, it is up to the public to show politicians that we desire radical reform. Remember, the libel law does not merely affect what I can write, but it also determines what you are allowed to read. Worse still, libel tourism means that we damage free expression around the world. It is time that London stopped being a haven for Eastern European oligarchs, Saudi billionaires and giant corporations who want to silence criticism.
It is too late to change the libel laws for Peter Wilmshurst and myself; but we can help future scientists, doctors, human rights journalists, biographers and anybody writing about matters of public interest. Over 30,000 people have signed the petition for libel reform and I would strongly urge you to also visit www.libelreform.org and add your name.