Next week, the UK government concludes the consultation over its new defamation bill. The proposed bill follows a vigorous campaign by libel reformers. Prompted by the cases of Simon Singh, the science writer who was sued for libel by the British Chiropractic Association, and Peter Wilmshurst, the cardiologist who has faced multiple libel actions by the company NMT Medical, the pressure group Sense About Science has argued that UK libel laws are stifling scientific debate. In response, the new bill identifies scientific and academic conferences as subject to a special form of legal protection, known as qualified privilege. Good news, right? I’m not so sure, and here’s why.
The ‘privilege’ defence protects publication of the proceedings of bodies whose decisions impact on the public. It means that, for instance, newspapers can report defamatory remarks made during a court case or during parliamentary proceedings without risk of committing libel. ‘Qualified privilege’ can be invoked whenever there is a social, moral or legal duty to speak out and the audience has an interest in receiving such information, provided that publication of the statement is made without malice. Current law provides a list of situations in which qualified privilege applies automatically. These include reports of general meetings of public companies, the findings of trade associations, and the proceedings of any lawful public meeting on a matter of public concern.
The new bill adds “scientific and academic conferences” to this list. Campaigners have welcomed this move. Speaking before the parliamentary committee charged with scrutinising the draft bill earlier this month, the former Liberal Democrat MP and libel reform campaigner Evan Harris said there was a “strong case” for scientific conferences to be granted qualified privilege and that the matter “was not contentious”. I disagree. Singling out scientists as deserving of special treatment in the eyes of the law is fraught with problems.
First, as the consultation document itself notes, there is the problem of how to define “scientific and academic conferences”. Academics can organise a conference whenever the inclination takes them. Some conferences are huge affairs organised under the auspices of a scientific society with commercial sponsorship deals. Others are small informal gatherings where speculative ideas are discussed freely. Which will qualify for qualified privilege?
One danger is that an event could be organised by a special interest group in order to promote defamatory statements about others. If it has the trappings of a bona fide conference – organised by an academic, say, or held at a university with scientists among the speakers – it could be possible to claim qualified privilege under the proposed new law. As Naomi Oreskes and Eric Conway have shown in their book Merchants of Doubt, for decades industry-friendly scientists have helped spread doubt about scientific claims that threaten corporate interests – from the links between smoking and cancer through to climate science. Exempting scientific discourse from libel actions risks enabling such groups to add defamation to the denialist toolkit.
But in any case, why should reporting of a defamatory statement be justified if made at a conference when exactly the same statement would not be tolerated if uttered at other events not covered by qualified privilege? The draft bill proposes new defences of ‘truth’, ‘honest opinion’ and ‘responsible journalism’ to replace the current common law defences. Together these should ensure that anyone – scientist, academic, or anyone else – won’t be guilty of libel providing that what they say can be shown to be true or is an honest opinion based on true facts. To need recourse to an additional defence implies that scientists should be able to say things which are not an honest interpretation of the evidence when others do not have this right. Yet scientists are as fallible as everyone else. Sometimes they make indefensible claims which are harmful to others. They should have no more right to circulate these claims than anyone else.
It is also important to remember that scientists can be victims of defamation as well as victims of intimidatory libel actions. The cases of Peter Wilmshurst and Simon Singh have focussed attention on the latter situation. However, there could equally well be occasions when scientists need to turn to the law to protect their reputations against defamation. Under the new law, if the defamation arises from media coverage of conference proceedings, scientists will be deprived of the ability to bring a successful libel action against the media organisations concerned.
Lastly, and perhaps most significantly, the qualified privilege defence may not actually protect scientists at all. Rather, it will protect the media. Commenting in the BMJ, libel lawyer Nigel Tait argues that qualified privilege will have the effect of shifting libel claims away from the media organisations who publish defamatory statements and onto the individual scientists being reported. Qualified privilege, says Tait, is “a spectacular own goal”.
Sense About Science launched its campaign under the banner ‘Keep Libel Laws Out of Science’. It was a snappy slogan. But scientists are members of society. As such, they should be subject to the same laws as everyone else. Cases like that of Peter Wilmshurst are extremely worrying, not because scientists are failing to get special treatment from the law, but because libel law, in both old and new form, fails to recognise the imbalance between individual and corporation. It is this that needs to be addressed. Qualified privilege is an unqualified distraction.
Dr. Felicity Mellor is a lecturer and course leader for the MSc in Science Communication at Imperial College, London.