It is well known fact that English libel law has a bad reputation. Whether it is the presumption of guilt, the extremely high costs of bringing or defending a claim or the fact that you can bring a claim with only a minimal, if any, connection to the UK, so-called “libel tourism”, it is becoming more and more obvious that reform is badly needed.
Over the past year there have been two major issues which have brought libel law to the public attention: firstly there is the on-going saga of the British Chiropractic Association (BCA) v Simon Singh (closely followed by the case of the cardiologist Peter Wilmshurst) and the recent injunction sought by the lawyers of the oil-trading company Trafigura against the Guardian and their attempted restraint against reporting Parliament business.
The BCA vs Singh is the most high-profile of the current legal cases. Back in 2007, Singh (pictured) wrote an article in the Guardian criticising chiropractic medicine on the basis that there is little if any evidence in support of the claims made its practitioners, as well as stating that the BCA promote “bogus” treatments. The BCA complained to the Guardian who offered a right of reply. However, instead of taking up the offer it instead issued libel proceedings, not against the Guardian or its publishers, but against Singh himself. The case has been progressing and back in the summer a preliminary hearing was held in the High Court to determine what was the likely definition of the term “bogus” as used in the article. It was ruled that “bogus” was meant to be a statement of fact that the BCA was being consciously dishonest in its promotion of chiropractic treatments – a claim that Singh could not possibly defend. Singh has appealed the ruling; at the initial hearing, by an application on paper to the Court of Appeal and at an oral hearing, at which at the third time of asking, permission to appeal the Judge’s ruling was granted and an Appeal is due for February 2010. The case of Peter Wilmshurst follows a similar pattern, only Wilmshurst criticised a medical implement in a trial – in which he was an investigator – in a US-based medical journal. His case is also on-going. At the time of writing this article it has also been revealed that a drug company has been trying to gag a radiologist for raising alarm regarding one of its treatments.
There is also the on-going saga of the oil trading company Trafigura and its alleged antics in Africa. Back in May Newsnight ran a feature which mentioned that Trafigura has been accused of dumping waste of the cast of west Africa, leading to the deaths of 15 people. Trafigura have made a settlement with 31,000 people of Ivory Coast regarding this. Their actions were mentioned in Parliament and appeared on the official record, Hansard. However, Trafigura managed to obtained a so-called “super-injunction” against the Guardian which not only banned them from reporting what had been mentioned in Parliament – which is also an apparent conflict with the doctrine of Parliamentary Privilege – but from reporting that an injunction had in fact been served on them. However, the Parliamentary record was quickly discovered and was posted repeatedly over the Internet leading to a media storm about freedom of expression and the injunction was quickly lifted. Unfortiunately, last week the BBC apologised for its claim and removed them from its website. However, Amnesty International maintain the claim, so do the United Nations. It remains to be seen whether Trafigua take proceedings against these two bodies.
It has also been reported in the Economist that a Ukrainan business man successfully sued a Ukrainian magazine for libel, even though it an apparently negligible UK-based readership and he had no connection whatsoever to the UK.
Possibly the most embarrasing result is the fact that various US states, e.g. New York, are passing laws specifically nullifying any attempts to enforce English libel judgements in the US, where they would conflict with the US’s First Amendment.
As a result, there is an increasing outcry against the application of English libel laws. The main campaign group is the charity Sense About Science who have launched a website specifically to campaign for major reforms of the libel system in England (http://www.libelreform.org/). Their suggestions include specialised low-cost libel tribunals; caps on damages and legal costs; a minimum level of publication within the UK; ensuring that publication is only classed as the first time an article is released, not on every single occasion; and stronger definitions of fair comment and public interest. The Justice Secretary has also recently announced a commission to look into the laws however, it is not yet known when it will report back or what it will recommend.
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This post was written by Demetrius Notice