Libel reform, the ongoing saga
One from the department of "their hearts are in the right place, but god they over-reach", I think. Basically, what possible libel reform could there ever be which would have prevented this? The surgeon in question is not being sued for libel and (as far as I can tell) hasn't even been specifically threatened with a libel suit. Someone has instructed their solicitor to send her a nasty letter. Which is unpleasant behaviour and I'm sure it ruined her morning, and people shouldn't do it. But equally clearly, there's no way at all that you can have a blanket ban on people asking their lawyers to send letters. Is there?
The question is how far the law the company is threatening to invoke can be stretched. I think the idea is that the existence of a strong public interest defence would make some lawyers refuse to write the letter, and would in any case help more recipients to ignore it. There would still be some lawyers who wrote the letters anyway, and some recipients who were scared by them, but fewer in the first group and fewer still in the second.
ReplyDeleteIf you're saying that no conceivable libel law reform would stop anyone getting a nasty lawyer's letter from a company that was trying to shut them up, I agree. But that doesn't necessarily mean these people are overreaching - except to the extent that they're making that specific strong claim.
There's also the issue of credible threat. If I, in a fit of temper, call dsquared a credulous, innumerate, scrofulous, embezzling fool in print and then get a letter from his solicitors threatening a libel action, I will probably be quite worried. If I instead get a letter from his vicar threatening to afflict me with a plague of locusts, less so, because it's not a credible threat.
ReplyDeleteYou could argue that libel reform would give people the confidence that silly libel cases like this were not worth worrying about because they would automatically be thrown out of court.
I think Dr Evan Harris in the story is making that specific strong claim (either that or he's just doing a rentagob quote on a story he doesn't understand, which I suppose has to be allowed as a remote possibility). But even if there's a strong public interest defence, I don't think it's right that a lawyer would refuse to write that letter though - there's always going to be a colourable case even if there isn't a winnable one, and so it's always going to be well within professional ethics to say that your client is hopping mad and prepared to get medieval.
ReplyDeleteAt the end of the day, if you're saying that someone's product doesn't work, then the only libel reform that is going to protect you from getting a nasty letter is the maximalist one - the one under which there is literally no legal right to a reputation and the company's only defence is "more speech". I think quite a lot of the libel reformers do actually believe this, but it's a total over-reach.
I think a lot of the rest of the problem is that science fans are letting the unattractiveness of the plaintiffs lead their decisions on the law. It *is* irritating that quacks and snake-oil merchants have the same legal rights as the rest of us, but there's nothing that can really be done about that which doesn't have much worse consequences elsewhere in the system.
You could argue that libel reform would give people the confidence that silly libel cases like this were not worth worrying about because they would automatically be thrown out of court.
ReplyDeleteBut as I say, this would only be the case if it was a maximalist libel reform of the sort that would basically give carte blanche to the media industry.
In any more realistic reform (and certainly IMO the one that the libel reform campaign is actually proposing), people would still have reason to be scared of such a letter if they'd made an off-the-cuff derogatory comment; you'd have to worry that you couldn't back it up.
Well you could have a reform which meant that you counter-sue both the lawyer and person who instructed them when they sent a letter like this which couldn't be backed up legally.
ReplyDeleteWhether or not that would be a good reform is open to question, but it might make lawyers more wary of acting in this way.
if it was a maximalist libel reform of the sort that would basically give carte blanche to the media industry
ReplyDeleteI'm still sceptical of this one. Assuming you're thinking of Evil Supervillian Murdoch in his lair phoning up innocent CEOs and saying "unless you pay me a gazillion dollars, I'll run an article saying your product's made of dead dogs and you're a paedophile". In which case, a law saying "defamatory conduct which financially benefits the speaker is still defamatory, but defamatory conduct where there's no prospect of financial gain is OK" would suffice, wouldn't it?
@cian: I like this one. If tweeting a bad joke about an airport is 'menacing', then how the fuck is sending someone a letter saying you'll sue them into bankruptcy not?
PS I hate captchas all of the time; they're a useless and annoying piece of nonsense. Since my current telco is so rubbish that I'm relying on a mobile phone plugged into my computer, which gives me full-on 1997vision, I hate them even more.
No, I was more thinking about cases like the Daily Mail/Facebook one, where the Mail had a stroy about paedos on some low-traffic social networking site, and then changed the name to "Facebook" because it made the story more interesting. At the end of the day, if we are going to have a libel system, then it needs to be accessible to people who think their reputation has been unfairly damaged. If it's accessible, then it's usable and if it's usable, then it can be used to make threats. More or less every law can be used to threaten litigation. This is a problem that can't be designed out of the system.
ReplyDeleteWell you could have a reform which meant that you counter-sue both the lawyer and person who instructed them when they sent a letter like this which couldn't be backed up legally
Depends what you mean by "backed up legally". What we're talking about here is either denying people access to justice, or punishing them, potentially quite severely, for using their right. That's quite a serious thing to do, and would need to be subject to a) really quite stringent tests of frivolousness and/or bad faith, and b) a consideration of the actual costs and benefits.
In effect, we would be saying that everyone in England was to be considered a vexatious litigant unless they could prove otherwise. This seems topsy-turvy to me.
PS: I don't think that there's any reasonable and objective standard by which the tit cream people's case, if they took it to court, could be considered "silly", or "obviously ridiculous". Someone said their product didn't work. On the face of it, that's defamatory if not true. Is it true? I dunno. I think it probably is, but I haven't actually looked at any relevant research, which is why if the Guardian called me up to ask for an opinion I'd probably refuse to give one. Where should the question of whether "this tit cream doesn't work" be decided? Well, I would say a court. Deciding on questions like this is paradigmatically the job of the libel courts. Some libel cases are weak and some are strong, but I don't see how you could possibly have a procedure for distinguishing between the two ex ante that didn't basically amount to a pre-trial trial.
The US has a nearly maximalist libel defense system, and it doesn't seem to have hurt us any. When I got a threat from a UK lawyer over something I said, I just laughed and pointed out that I'm an American and they could fuck off. They fucked off.
ReplyDeleteI note that teh Grauniad chose to illustrate the story with a picture of breasts, in case readers were in any doubt about what was the pert/inent issue in the story.
ReplyDeleteThe law is one of those abstract concepts that's hard to depict in a photo, and libel particularly so. And the protagonists in the tedious actual details are probably all ugly.[1] So why not use a library photo of a skinny young white woman undoing her bra?
It helpfully makes manifest the reason that this story has legs [2] in a way that, say, the Twitter joke trial never will.
[1] NB No defamatory implication intended.
[2] Er, so to speak.
PS: I don't think that there's any reasonable and objective standard by which the tit cream people's case, if they took it to court, could be considered "silly", or "obviously ridiculous". Someone said their product didn't work. On the face of it, that's defamatory if not true. Is it true? I dunno.
ReplyDeleteMy reading was that the cosmetic surgeon said ithe breast-enhancement cream couldn't work, and if it did work the way the company claimed then it was dangerous. Which, as a professional in a closely-related field, is a statement that is unambiguously true, assuming that I've read it right and that everything was reported correctly in the Guardian.
You may not be able to ban people from lawspamming, but you can at least try to establish a perception that sending out vacuous pseudo-legal threats in order to scare your critics is shameful and underhanded. Pouring abuse on people who do so could at least be a start.
ReplyDeleteI would agree that this is a much better remedy, but it's not what the libel reform campaigners actually do is it? One or two of them have even gone down this route themselves (cf, Ben Goldacre, chucking around AFAICS more or less frivolous threats at Gillian McKeith).
ReplyDeleteMy long term worry here is that we will end up with a combination of American-style libel laws plus British-style journalistic ethics.
also, thinking about it, Johann Hari, who threatened Nick Cohen with a libel suit.
ReplyDelete"Where should the question of whether "this tit cream doesn't work" be decided? Well, I would say a court. Deciding on questions like this is paradigmatically the job of the libel courts."
ReplyDeletePeople are always going to issue empty legal threats - it is cheap and effective. The concern here surely is that, as the law stands, these are not just empty threats because there is a credible risk that the libel threat would stand up in court.
This concerns scientists because, as this case illustrates, the burden of proof for scientific claims is that the person making the claim needs to prove their claim, but the burden of proof in libel cases is on the person questioning the claim. The reason these cases are worrying is because it essentially allows commercial interests to bypass the usual channels of scientific debate and criticism and to take the case straight into the libel courts where the burden of proof is rather more lenient than say NICE or the MHRA. So the recent cases of lie detector vendors and medical device manufacturers going straight to libel law to close down scientific concerns about their products is, I think, quite worrying.
This current case inhabits the interesting grey area of cosmetic versus medical products, where as long as you say stuff like 'appearance of ageing' you can say pretty much what you like, but as soon as you make a medical claim the law requires quite a lot more evidence. But, and this is the concerning thing, while it may be illegal to make the medical claim I'm not sure that would prevent a succesful libel action challenging that claim ("well, maybe I can't prove that it makes your breasts bigger but you can't prove it doesn't because we've never done any studies to find out either way, hah, victory to the cosmetics industry").
the burden of proof for scientific claims is that the person making the claim needs to prove their claim, but the burden of proof in libel cases is on the person questioning the claim.
ReplyDeleteNot sure that the asymmetry here works - both "this tit cream works" and "this tit cream doesn't work" are claims.
And post BCA v Schama, it's been established that scientific claims have to be made and established according to a scientific standard in the way you suggest. I am pretty sure that the tit cream people don't have a case at all if this woman made even a cursory check of the literature before responding to the Mail, and I doubt they have a winnable case even if she didn't (although I think the giving of off-the-cuff unchecked derogatory comments isn't really something that it ought to be a public policy goal to promote).
Which was the point of my post - what libel reform is actually being suggested here? If it's to ensure that quack medicine promoters can't win libel cases against people who criticise them on the science, then that's the state of play now. But what they seem to want is a structure under which some people are not only barred from the courts, but barred from even considering bringing a libel action. I just don't see how anything which was consistent with the ECHR right to access to justice would prevent tit cream manufacturers from writing nastygrams.
I said before in a similar context that what people seem to want to say is "it's different when we call them liars from when they call us liars, because they actually are liars!". Which is true, but it's pretty obvious that you can't base a law on that sort of view.
My long term worry here is that we will end up with a combination of American-style libel laws plus British-style journalistic ethics.
ReplyDeleteFor most people we already have that. The majority of people libeled by tabloids have no access to the law courts. I know two people this happened to, and as they had very little money there was fuck all they could do.
"And post BCA v Schama, it's been established that scientific claims have to be made and established according to a scientific standard in the way you suggest."
ReplyDeleteBCA vs Singh you mean? I thought the BCA dropped the case after the Court of Appeal ruled that he was allowed to run a defence of 'fair comment'. So he didn't actually win the libel action with that defence and so it hasn't been established that scientific questions should be determined in that way.
I agree that we shouldn't be allowing a free for all in terms of being able to libel all and sundry with no come back, but it seems at the moment that (much more importantly than things like chiropractic or breast creams) vested interests in technology and medicine are able to quell scientific debate over their products by the huge costs and still very uncertain outcomes.
It apparently cost the Guardian £500k in the action Mathias Rath brought against Ben Goldacre - most scientists, doctors, Universities, NHS trusts, and scientific journals do not have that sort of money to piss away in defending fair comment.
All publicity is good publicity when it comes to boob creams. Sending the nasty letter, and the resulting media coverage, was probably very cost-effective marketing. -mrkmyr
ReplyDeleteIt apparently cost the Guardian £500k in the action Mathias Rath brought against Ben Goldacre - most scientists, doctors, Universities, NHS trusts, and scientific journals do not have that sort of money to piss away in defending fair comment.
ReplyDeleteThen this is an issue about the cost of justice, not specific laws.
"Then this is an issue about the cost of justice, not specific laws."
ReplyDeleteWell yes, that specific point is. But as has been suggested above, the cost serves to magnify the chilling effect of the laws effectively silencing scientific debate. Maybe if it didn't cost so much we'd be less worried by the laws, maybe if the laws were more forgiving we'd be less worried by the cost.
I know I wouldn't dream of trying to defend a libel action against a drugs company I had criticised, however justified my criticism, because (a) I don't have the money to even start instructing lawyers, and (b) I cannot risk the chance that I would lose and be liable for my own let alone anyone else's costs. Perhaps if I had more confidence that a 'fair comment' defence would work I might but the Singh case has, despite the outcome, left me even less confident than I was before the rulings of Mr Justice Eady.
BCA vs Singh you mean?
ReplyDeleteYes, sorry, although I do regard them as being basically the same person. The case never went before the jury, but the Court of Appeal ruling is a proper ruling and (intentionally) goes into the big book of precedents.
Simon Schama and Simon Singh? Separated at birth.
ReplyDeleteCost of justice: I think libel shares with copyright the property that lawsuits are often from the rich against the much less well off, and this feels instinctively unfair regardless of the details.
ReplyDeleteLike the twitter joke trial, there's also an unevenness issue. There's an awful lot of stuff on the internet and in newspapers that could be considered libellous, but only occasionally someone gets a life-ruining lawsuit. Which then looks disproportionate compared to the general level of discourse.
How have we ended up with vicious newspapers and an aggressive libel system?
Newspapers are, after all, owned by very very rich people; you have to be really quite rich before suing a newspaper is suing someone worse off than you.
ReplyDelete(Suing journalists is obviously different.)
I would imagine a substantial proportion of libel cases in the UK are brought by the moderately wealthy against the very wealthy.
Surprisingly many seem to be brought by the kind of person who has lots of, um, determination.
ReplyDeleteThis very recent case, for example, is a superb example of the hassle that a determined litigant willing to represent themselves can cause...
http://www.bailii.org/ew/cases/EWHC/QB/2010/3057.html
OTOH, there was a fascinating libel case (funded on a conditional fee arrangement) a few years back that was the only way two Newcastle nursery workers could clear their name after the local council issued a report calling them paedophiles (despite the courts having acquitted). Lord Justice Eady went up immensely in my estimation once I read through the judgement.
I think this quote from that first case is germane:
ReplyDelete"It is not right for a claimant to say that a defendant to a slander action should raise his defence and the matter go to trial. The fact of being sued at all is a serious interference with freedom of expression..."
I'm sure no one is reading this thread now, but there's an interesting article on this topic on
ReplyDeletethe BMJ blog suggesting this isn't confined to the UK:
"As is happening in the UK, France is beginning to experience an abuse of the libel laws. In 2009, through my role as professor of public health at Amiens University Hospital, I stated on French TV that cigarettes kill two smokers a year for every tobacconist. As a result, I am being sued by the French tobacconists’ union. The irony is that in June 2009 I received a “Knowledge for the World” award from the Johns Hopkins Alumni Association for making the very same claim."