This March the UK’s Ministry of Justice will publish a draft bill to reform the UK’s draconian libel laws. The UK’s current libel laws, among the strictest in the world, have been criticized for stifling free speech, scientific research and evidence-based public debate.
The UK’s libel laws differ significantly from those of the US and many other countries. First, the burden of proof in the UK is inverted. Instead of requiring plaintiffs to prove that defendants’ statements were libelous, UK law requires defendants to prove their statements were true. The law also lacks a public interest defense to foster debate about issues of public importance. In addition, the UK’s 1849 publication rule counts every new purchase as a new publication date. As a result, there is effectively no statute of limitations for lawsuits challenging materials published online. Finally, litigation costs in the UK are shockingly punitive. A recent Oxford study found that the cost of defending a UK libel suit is 140 times as much as an equivalent action in 11 European countries.
As a result, libel lawsuit plaintiffs often engage in “forum shopping”; parties with little connection to the UK choose its court system as their forum, with the knowledge that they are much more likely to prevail there. The UK’s libel laws therefore exert a spillover effect by stifling open debate in other countries. One well-known example of “libel tourism” involves New York City-based author Rachel Ehrenfeld, whose US-published book Funding Evil: How Terrorism Is Financed-and How to Stop It , sold a mere 23 copies in the UK. When a Saudi billionaire sued Ehrenfeld in the UK for defamation when the book named him as involved in funding Hamas and Al Qaeda, the court awarded the plaintiff $225,000 in damages. The episode led New York and several other states to pass laws protecting US citizens from the enforcement of foreign libel judgments if the statements in question would not have been libelous within the US.
The UK’s libel laws have had a chilling effect on scientific inquiry. A recent survey found that a third of science and medical journal editors worldwide have refrained from publishing research findings rather than risk a libel action. Fiona Godlee, editor of the British Medical Journal, told The Times of London that the libel laws inhibit decisions about whether medical research papers are published or withdrawn in cases of plagiarism, fraud or error. As she noted, “Science works through the publication of evidence, which can then be reproduced or rebutted. The right approach to academic criticism is to challenge the evidence, not to go to law. Weak science sheltered from officious laws means bad medicine.”
Most famously, science writer Simon Singh was sued by the British Chiropractic Association for publishing an article criticizing the association for defending chiropractic treatments for which there is little or no evidence, including chiropractic treatments for conditions such as childhood colic, asthma and ear infections. The BCA dropped the case only after it became a cause celebre among scientists, celebrities and British freedom of speech campaigners.
Nick Clegg, the UK’s Liberal Democrat leader, has promised to push for a strong public interest defense to protect doctors and scientists from being bullied into self-censorship for fear of being sued. In a speech before the Royal Society, Britain’s national academy of science, Clegg said the UK’s current laws were having a “chilling effect” on scientific inquiry. “I am deeply concerned about the stifling effect English libel laws are having on scientific debate,” he told the Society. “Scientists must be allowed to question claims fearlessly, especially those that relate to medical care, environmental damage and public safety, if we are to protect ourselves against dubious research practices, phoney treatments and vested corporate interests.”
Let’s hope Mr. Clegg succeeds in his reform campaign. For many doctors, journalists, scientists and scholars, reform can’t come soon enough.