The Chilling Effect of Libel Laws

Congratulations to Simon Singh on his resounding victory in the appeal court for his right to express an opinion on alternative medicine. Simon is being sued by the British Chiropractic Assocation (BCA) for an article he published in The Guardian two years ago, which described some of its treatments as "bogus" and based on insufficient evidence.

Last week's ruling does not bring an end to this farcical action, it simply allows Simon to use the defence of fair comment when the action finally reaches court. Simply to reach this preliminary stage the proceedings have cost both parties a total of £200,000 - proof, if such were needed, that libel remains a rich man's game with the only beneficiaries being m'learned friends. Without the fair comment defence, under Britain's archaic libel laws, Simon would have had to prove his comments were factually true as opposed to an opinion, an experience that England's law lords compared to "an Orwellian Ministry of Truth."

So the battle to reform Britain's libel laws and defend freedom of speech continues. It is shameful that despite promises from the Labour Government for reform the UN human rights committee's criticism of the current system, published in 2008, still stands: "The law law of libel has served to discourage critical media reporting on matters of public interest, adversely affecting the ability of scholars and journalists to publish their work."

I urge you all to sign the petition at www.libel-reform.org.

Manchester solicitor Mark Lewis, who acted for Sheffield Wednesday fan Nigel Short and Owlstalk in another recent action, sent me his commentary which I'm pleased to publish here. You can read the background to the Nigel Short story on George Monbiot's blog here.

What has Sheffield Wednesday got in common with an American medical company?

If your mind is going towards “steel”, then that thought is wrong. What both have in common, is the use of libel laws by companies against individuals.

The dust has settled since Sheffield Wednesday decided to sue its fan, Nigel Short and seek an order against “Owlstalk” website to disclose the identities of anonymous bloggers. You might remember the uproar among football fans when Sheffield Wednesday and their then board decided to sue the fans. Even Blades fans united in their support of Wednesday fans who were threatened with being sued for making fairly trivial comments and posting blogs.

The fans stood up to the challenge, Nigel defended the case against him and eventually Sheffield Wednesday, saw sense, and dropped the claim . Nigel never had the chance to have his day in court and so even though there is satisfaction that the claim was dropped and his costs paid (he was represented “No Win No Fee”) the matter was not resolved in a way that allows other football fans to post on websites with the certainty that they will not be sued.

So what you say. If there is a good defence it can be run. Apart from the hell that Nigel had to endure and the lost time, libel cases cost a fortune to defend. Even if you can get the backing of a lawyer who will not charge you, the risk of financial loss if the case goes against you is huge. Lose and you can end up paying costs and damages sometimes over a million pounds. Free speech has never been so dear. That is what is known as the “chilling effect”. Football fans who cannot post on fan websites for fear of being sued, are “chilled” because of the financial risk. The financial loss is only one part. The stress of being a defendant to a claim and the disruption to life is huge.

Libel law is simple. If a claimant has got money then he is likely to win against a defendant who can’t afford to lose. No law, no merits, just the power of money.

The chilling effect became the “killing effect” when doctors and scientists started to get sued. Simon Singh is being sued by the British Chiropractors Association, for an article he wrote in the Guardian.

Dr Peter Wilmshurst is being sued because of an interview he gave to a journalist. Oh yes, I forgot to say, that interview was given to a Canadian journalist in the USA at a scientific conference about cardiology. The website that the article was on is open to subscription viewers only. Oh and the website wasn’t sued, nor was the journalist. No proceedings were issued in America. But Dr Wilmshurst a Consultant at a hospital in Shrewsbury is being sued in an action that NMT estimated would cost £1.5 million. Patients lose out because he has to devote time to defending a court case rather than treat them.

Dr Wilmshurst is defending the claim. He sees it as a principle issue because he needs to speak out. That is how science works. Scientists challenge theories and as a result knowledge develops. If a scientist is scared off from speaking out then we all suffer. The killing effect is not to Peter Wilmshurst or Simon Singh, but those scientists who modify articles and worse those who don’t write articles at all in order to prevent being sued. Put it this way, just think about your own favourite theory – say, which football team is better. Then ask yourself would you say that aloud if you risked being sued for £1 million.

It is for that reason that people are now fighting back and calling for a change in the libel laws to get recognition of a “public interest defence” – it doesn’t matter whether a theory is correct or not, if it is in the interest of the public and has been said honestly then you need to be able to say it.

Defending a claim has to be made affordable. Otherwise the cost of a libel claim and the Claimant friendly laws, leads only to silence. People have to speak out!

Mark Lewis from Manchester is the solicitor who acted for Nigel Short and Owlstalk against the previous board of Sheffield Wednesday, and currently acts for Dr Wilmshurst.