Young UK and Ireland Programme 2010

Libel lunacy
Runner-up paper
by Neelaksh Sadhoo

A cardiologist, criticising trials of a heart implant; a radiologist, questioning the safety of a drug; a science writer, challenging claims of medical evidence.
     All, being sued for libel.
     But at least we know their concerns. Legal battles irritate; the silence can kill – the silence of those who will not share their doubts, out of fear of an unjust law.
     English libel law stifles debate, and needs reform.
     Science develops with robust discussion and critical questioning of evidence. This debate is key to the 'soft infrastructure' of a knowledge economy, and must be witnessed by the public.
     That's where competing rights come into play: the right to free expression, and the right to reputation. Libel laws are meant to balance these rights. But English libel law presumes that a defamatory publication is both false and damaging; it assigns the worst possible meaning to the publication; and it leaves the burden of proof on the defendant. The law is so unbalanced that London is called the libel capital of the world.
     'Publication' means 'information conveyed', including via the internet, and a publication in England is legally actionable in England. With global reach, our law now stifles research and communication worldwide.
      The fear of libel action distorts even peer-reviewed scientific output. Medical journals seek legal advice before publishing, and before retracting studies they suspect to be flawed; allegedly defamatory articles are removed from websites. And the growing resource-intensive and corporate nature of science can mean only a greater incentive to silence critics.
     Courts should not dictate the course of scientific argument. But this is not about putting science on a pedestal. When any dissent is stifled, democracy suffers.
     Libel lawsuits are expensive. In England litigation costs can easily run over a million pounds, even when final damages awarded are much less. The loser pays most of the winner's legal expenses; the defendant usually loses. And even that rare successful defence may not recover costs.
     Given their current finances, few newspapers would even consider defending libel cases. Investigative journalism suffers: Our watchdog has been muzzled.
     And that's the famously aggressive British press. What about the rest of us?
     'Self-censorship' for fear of litigation may not sound convincing, but I can vouch for it. I made the mistake of reading about libel law recently, and since then...even for this forum, I changed topics: not once, but twice. This 'blackmailing effect' – the mere threat, whether real or imagined – is enough to inhibit publication.
     In 2008, the UN human rights committee criticised English libel law because 'the practical application of the law discourages critical media reporting on matters of serious public interest'. America, our closest ally, is considering a bill to reject many English libel judgements. And the New York-based precedent of this bill was called the Libel Terrorism Protection Act.
     Should we don our capes to fight our causes – ignore our terrorising law? Yes. But it is a reluctant yes, a bitter yes, when elsewhere free speech is given higher regard.
     The land of Milton and Mill deserves better. When you are presumed guilty until proven innocent, when free speech becomes too expensive, when legally enforced silence can kill: the law needs to change.
     We need a bedrock statutory defence for speech in the public interest, covering both the media and individuals. Free speech is protected under the Human Rights Act, but in judicial balancing between speech and reputation, speech has lost out.
     For libel action against public speech, the burden of proof must shift towards the claimant. This is consistent with other civil litigation, and hedges against the odd presumption that defamatory statements are false. The claimant must prove actual malice or negligence to win damages.
     The threat of libel action must not be a corporate PR tool. Powerful corporations and associations must prove actual damage, or sue for malicious falsehood instead, not libel.
     We need to control costs. In public speech cases, there must be a way to settle some disputes quickly – perhaps some form of compulsory arbitration before trial? We need to consider cost caps, and keeping legal costs proportional to damages. And damages should not be punitive.
     Finally, as libel law seeks to repair reputation, shouldn't the main aim of a libel victory be a right to reply, or a public retraction and an apology?
     A recent campaign for libel reform has made Westminster take notice. Over 200 MPs have officially expressed their concern about the current effects of our libel law.
     Now we need voters to lobby their MPs.
     We need to reassert the primacy of free speech in a democracy.
     We need you, all of you, to join the debate.