If this is "libel reform" I want my old job back
Fair do's he's laid it on the line and said it in so many words. This is really not all that much to do with the rest of the libel reform campaign - Goldacre is arguing here for two quite controversial proposals.
1. That "scientists" (which since he is also including his own lawsuit and Simon Singh's, apparently includes science journalists writing outside their specialist field of expertise) should have their own special cut-out from the libel laws.
2. That they should not only have a safe-harbour built into the law, but they should be protected from people suing them, threatening to sue them or even having their lawyers write letters which might be interpreted as a threat to sue them. Or possibly that the safe-harbour should be so strongly worded that every scientist (broadly defined) should always be totally confident that they can never be sued.
I just don't think this dog is going to hunt. Most of (1) above is available already - the Appeal Court judgement in BCA vs Singh has established that questions of science have to be decided on their scientific merit by standards appropriate to scientists and that interpretation of scientific literature is more like comment ("honest opinion) than assertion, which is all that could be reasonably asked in this line.
And (2) is just impossible to give, as I keep saying. You can't, other than in very unusual cases, deny people access to the courts. It's a human right.
The trouble with libel law is that it's so bloody expensive and time-consuming. There is very little wrong with the law itself. As you'd expect - like every other part of the English civil code, it's been around for a very long time and has been case-hardened and adapted. It's an evolved system. Britain gets a lot of big advantages from having a legal system that everyone else wants to use; "libel tourism" isn't really, IMO, a very different phenomenon from the general tendency of people from other countries to issue their bonds and sign their contracts in the best place for doing so.
Addendum: Of course, London's status as an international commercial law centre is, speaking as an economist here, the real root of the problem. The reason why libel is so bloody expensive here is that the opportunity cost of the time of everyone involved is what they could earn doing the commercial bar. If the cost of libel actions were to be reduced, that would have consequences for the quality of the people who would make themselves available to do the work, which in turn could have unpredictable consequences for the kind of judgements we got.
Further addendum: actually the more I think about it, the more I think it's really rather cheeky for BG to have added his own case and Simon Singh's to the top of this article. Science is one thing and journalism is another. It's not at all clear that the purposes served by scientists criticising one another's work in their specialist literature are the same as those served by Simon Singh having a go at the spinebenders in the Guardian. This amalgamation of the interests of researchers being bullied by pharmaceutical companies, with those of media organisations who want to keep their legal bills down, makes a certain kind of tactical sense I suppose, but it's really not particularly ideologically coherent.
Also:
ReplyDeletehttp://www.bbc.co.uk/programmes/p009xbbw
London's status as an international commercial law centre is
ReplyDeleteWhich appears, incidentally, to have been one of the few sectors where foreign competition has increased both local wages and profits. When US law firms came in, local associate salaries started shooting up to match.
(Case in point: I once saw how much profit the least-senior partner made in 1982. £30,000 in 1982 pounds. Today, his equivalent would make, even after several rough years, about ten times that.)
Britain gets a lot of big advantages from having a legal system that everyone else wants to use; "libel tourism" isn't really, IMO, a very different phenomenon from the general tendency of people from other countries to issue their bonds and sign their contracts in the best place for doing so.
ReplyDeleteI'm a US lawyer, so my opinion on this is going to be presumptively unpersuasive to you. It seems to me, though, that there is a really big difference between shopping for the best forum in contract cases (where both parties agree in advance to use a particular country's courts because they like the law and maybe the institutions there) and doing it in tort cases, including libel (where the plaintiff picks the country he likes best for whatever procedural or substantive advantages are available). The former, not really a problem. The latter, maybe, depending on the circumstances.
I was raised to believe that the issue with British libel law was that a defamatory statement is presumed to be false unless the defendant can prove its truth. It seems like getting rid of this would be a good idea on its face, reduce libel tourism, and make those nastygrams less scary. What am I missing?
ReplyDeleteThis is a bit of an urban myth. In fact, the burden of proof is exactly the same in US libel law in a lot of states - basically, if you're using truth (justification) as a defence, you have to demonstrate that it is actually a defence. This (from a pro-reform campaigner) is pretty useful.
ReplyDeletehttp://jackofkent.blogspot.com/2009/11/understanding-reverse-burden-of-proof.html
A lot of the problem is that how do you prove a negative - in the paradigm case, a gym teacher libelled as a paedophile would be under an unjust burden if he had to somehow prove he wasn't one.
The Gods send clues about this situation frequently.
ReplyDeleteEddie of Iron Maiden.
Closure of Fitsgeralds Reno/getting kicked out of Fits LV 1990 for "counting cards" after 5 minutes and $20:::Accusation of the innocent.
WWII's other holocaust:::Unit 731:::tsushogo. Tsushogo was a clue from the Gods illustrating their positioning long before it began. Incidentally, the used it to hurt the Chinese and position against future Japanese sucess by burying their atrocities.
The Concorde.
More below::The Gods have created an endless list over the last four+ decades. This Situation is a monster.
Never forget::The Gods have created positioning to conceal their true intent in each and every dyanmic we see in society.
We truely live in The Matrix:::There is the way things look and there is the God's REAL reason for doing things.
Employment charity:::Was W able to do his job as President?
I suspect there are many frat-boy types who could not or would rather not have studied nor do the work necessary so they gained this "benefit" telepathically. This could have been extended to their professional life as well::In most of these cases they don't have what it takes to do their jobs.
I think employment charity is FAR more common than people may believe.
Another example how they tempted people in this manner is the procurement of sexual relations.
Consistant with The Matrix, the Gods positioned both to these people which gained their confidence. But what they don't know is this behavior actually hurts them::They were offered temptation and they fell for it. And one day, if they are to have a future, they will be punished.
Keep raping these poor girls. You're going to end up as one in your next life.
Capitalism is evil because of the exploitative nature, illustrated with this Situation.
Muslims are correct:::Earning interest is evil.
Unlike war, which is a temporary period where the citiens incurr evil due to the decisions of the leaders, capitalism by its very nature incurrs evil for those who participate into perpetuity, an "institutional" method of incurring evil for the disfavored who engage in it. Inherant in earning interest is the exploitation of others, capitalizing on assets and exploiting the workforce for profit.
Understand the destructive nature of this element of evil we call the United States, for it spreads this cancer under the guise of "democracy" throughout the world.
Look for other institutional evil as related to the United States because as the land of disfavor castoff rejects there will be plenty of examples.
Examine my examples. They illustrate the God's reverse positioning used to confuse and disceive people who have made big mistakes in past lives.
I illustrate a certain way to think. If you doubt what I teach, if this is not your time to learn please at least completely understand this way of thinking, because when your time does come you will be able to refer to it and you will begin to see the God's pattern within the context of their positioning.
Nobody is going to save you. Christianity is a lie. And only through thinking correctly will you have a real chance to begin doing the right things.
Also, on a curiosum, "truth" is not an absolute defence, which is apparently why lawyers use "justification". They are usually totally co-extensive, but not exactly the same thing - apparently the only difference that ever matters is with respect to spent convictions - if someone stole a bun fifty years ago, it can be libellous in context to describe them as a "thief" if done with sufficient malice.
ReplyDeleteWouldn't "getting rid of the libel law altogether" be both an improvement on the present situation, and very easy to implement?
ReplyDeleteAlso, continuing Widget's comment: isn't way more plausible that "libel tourism" is due NOT to the awesomeness of the British legal system, but on the contrary to the fact that it sucks, and it's very easy for the plaintiff in a libel case to win, and the defendant basically has to settle or pay exorbitant fees?
ReplyDeletebut on the contrary to the fact that it sucks, and it's very easy for the plaintiff in a libel case to win, and the defendant basically has to settle or pay exorbitant fees?
ReplyDeleteI don't see this as obviously true at all - have a look at the NMT case, where a smallcap biotech firm foolishly assumed something like this to be the case, and is now very nearly bankrupt itself after having been asked to place a £200k bond with the UK court to cover the defendant's costs. As Peter Wilmshurst's lawyer noted, if they're libel tourists they've had a bit of a holiday from hell so far.
(I think the system eated my lastcomment, so apologies for duplicates).
ReplyDeleteI should have phrased my second comment better: the fact that plaintiffs are willing to sue in Britain is evidence of the fact that they think the British legal system (regarding libel) is bad, not, as you seem to claim in your post, that they think it is good
So as I understand it libel tourism is separate from the Simon Singh case. The question is whether you can sue in England for a statement you made elsewhere, is it not? So, if I were to say that Islam is a lie, would it be right for someone in Iran to prosecute me? I mean, they regularly issue fatwas for people outside of the country, but these are never shown as evidence of how good the Iranian legal system is.
ReplyDeleteIn terms of the Singh case, it eventually resolved in Singh's favor. I think there's more of a blurry line, since Singh's plea would have to do with the interpretation of what is said. If he writes an opinion piece, which I believe he did, he should be able to say that he thinks chiropractors are a bunch of phonies.
It certainly doesn't seem to have paid off for NMT. But it's not zero-sum: as Goldacre says today, if NMT go bust Wilmshurst won't get his money back - and will still have had an enormous amount of hassle - meaning he'll still be the (uncompensated) victim of evil libel laws. Which, I've got to say, makes a certain amount of sense to me.
ReplyDelete"1. That "scientists" (which since he is also including his own lawsuit and Simon Singh's, apparently includes science journalists writing outside their specialist field of expertise) should have their own special cut-out from the libel laws."
ReplyDeleteIsn't he explicitly referring to medicine (and health in general) rather than other fields of science in this article? Also, whole Singh is a science journalist only, Goldacre is also a medical doctor so has at least a degree of specialist knowledge on the topic where he was sued. Your distinction between science journalism and specialist literature is a bit artificial because it is certainly the case that much criticism of pseudo-scientific fields takes place in generalist scientific literature or even mainstream media precisely because its status as pseudo-science makes in unsuitable for discussion in specialist literature. Also, generalist or mainstream media is also, often, the forum for criticism of whole fields of science from outside the field itself (evolutionary psychology might be an example).
"Also, generalist or mainstream media is also, often, the forum for criticism of whole fields of science from outside the field itself (evolutionary psychology might be an example)."
ReplyDeleteSee this post for an example.
Phil -as far as I can see, if Wilmshurst is a victim of anything, it's the extreme expensiveness of his own lawyers. The actual laws seem to have worked all right. And importantly, as I keep saying,Wilmshurst wouldn't have been protected by any change to the laws (apart from a maximalist one that prevented him from being sued at all),although media organisations with their own legal departments would.
ReplyDeleteI think I'd be happy if libel law were tilted sufficiently towards scientists that they could rely on either legal aid or a conditional fee arrangement if they had any prima facie public interest defense to wave around. That would be enough of a deterrent, I think.
ReplyDeleteThere's also the argument raised by the McLibel Two that corporations shouldn't be able to sue individuals for libel. I wouldn't go that far, but I wouldn't say no to it, either.
DD, you make it sound like Wilmshurst's spending is a frivolous extravagance but the world of libel lawyering is small so there is no guarantee that he could have got where he has with cheaper lawyers. The claim also glosses over the extent to which expenses are used as a weapon in such trials so even a cheap but proficient libel lawyer might feel the need to rack up significant costs in order to scare the opposition.
ReplyDeleteIt's of course not clear that the kind of legislation proposed would be able to change that, but it doesn't mean it isn't a problem. Maybe common law will eventually come to the rescue and enough cases will get decided the right way that fewer equivalents of the chiropractors will think a libel suit is a worthwhile option.
I see what you mean, it does read that way but I didn't mean to imply that Wilmshurst's legal expenses were frivolous - just that the problem is entirely the legal costs rather than the law.
ReplyDeleteI think you might be right about common law, though of course all the publicity given to this idea that the UK is a paradise for litigants is probably having a perverse effect - NMT certainly seem to have made a catastrophic misjudgement.