Image: Flickr / Robert Sharp / English PEN
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.
Image: Flickr / Robert Sharp / English PEN
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.
Refractive Index 
The article raises important points in considering qualified privilege and scientific conferences. However, I think the two main criticisms levelled at the proposals in the draft Defamation Bill are wrong.
Firstly, it seems to be an extremely large hurdle to cross to falsely organise a conference simply to avoid the likelihood of a libel case – it is arguable that the cost and time of this would rival defending an action and would not appeal to non-moneyed defamers.
Secondly, where moneyed defamers are concerned (a legitimate concerns to highlight), as you clearly state, the where a statement attracts on “qualified privilege” rather than “absolute privilege” (such as statements in Parliament), the defence will fail if malice can be shown in making the statement. Malice here means a lack of belief in the truth of the statement or a motive other than the occasion which attracts privilege. It seems to me that in cases that you highlight – denialists or corporate special interest groups – an alternate motive could easily be shown – to defame the scientist rather than discuss scientific work, or an honest belief in the truth of the work be shown to be lacking. Malice could save the scientist in this situation, in exchange for coverage of many more honest scientists criticising, for example, corporations’ products honestly.
Though the other defences you highlight may be useful improvements, QP would go further as it would allow legitimate discussion in the media of conferences – again, where it is corporate bodies using the media to defame legitimate science, the defence would fail for malice.
You have highlighted a legitimate concern – the”imbalance between individual and corporation.” This is why the Libel Reform Campaign has also argued for abolishing corporations’ right to sue in libel, because they do not have Article 8 rights analogous to natural humans. Taken together, these improvements should help protect legitimate science and help protect the public from falsely using science to further often vicious corporate aims.
Thanks for your comments, Rachit. The point about malice is an important one, but as I understand it, it is the defendant (i.e. the publisher of the defamatory statement) to whom this applies not the source of the statement (e.g. a speaker at a conference). If I’m right about that, then journalists could report, without malicious intent, defamatory comments made at a conference which the speaker did not honestly believe were true, without having to go through the usual processes of responsible journalism in terms of checking facts, seeking a response from the person defamed, etc.
As you suggest, organising a conference for the sole purpose of circulating defamatory comments seems like a lot of effort for little gain. However, groups hostile to the scientific consensus on various issues do organise conferences, sometimes at universities or with supportive scientists present, to add legitimacy to their views. Even if circulating defamatory comments is not the main purpose of such events, it could be one outcome if qualified privilege were to apply.
My main concern is that libel law needs to be robust enough to defend rational and evidenced critique wherever it occurs. If it is not, then the general defences need to be refined further rather than simply giving scientists (or, to be precise, those reporting scientists) a special get-out clause that is not available to others. Conversely, scientists sometimes say things – especially at conferences where discussion can become heated – that do not deserve to be reported without further investigation. Most other occasions where qualified privilege applies are deliberative proceedings – local authority meetings, public inquiries, company general meetings, etc – where the people affected have a right to know how decisions were reached. Scientific conferences aren’t like that. They are occasions for sharing ideas and speaking freely, not for formal decision making – and speaking freely means sometimes speaking rubbish.
You are saying what shouldn’t be done. How, then, would you deal with the problem highlighted by the Singh case?
Qualified privilege would not have helped in the Singh case since Singh’s article was not a report of a conference. The draft bill attempts to clarify the defences available to everyone – including science writers – by introducing statutory defences of “truth”, “honest opinion” and “responsible journalism”. Whether these are now clear enough is hard to judge, but they must serve to protect evidenced, rational debate wherever it takes place.
Dr Mellor, thanks for the reply – I was late in checking back. My point (not very clearly made) would be about people organising conferences, where “extracts or copies” of material published by the conference could be covered, but only without malice. So I would suggest conferences organised to give legitimacy to defamatory views would not be covered, and media reports following the loss of such privilege would also not be covered (which I accept may not be instant).
The key thing to bear in mind regarding your point about ‘heated’ points made at conference is that, by analogy with case law on public meetings, spoken words at conferences would not be protected. So the proposal doesn’t give any protection to such words and only limited protection to material published by the conference.
Despite this, I fully agree with your comment that making defences more robust in general is a higher priority than specific protection for scientists. However, that doesn’t mean there isn’t a good case for giving protection for scientific debate (my own view is that peer-reviewed journals should be protected by QP) – as common law has always attached qualified privilege statements that are in the public interest and there is a duty/interest to make or receive the statement – and I would say that scientific debate (whether conferences or peer-reviewed articles) is precisely the sort of thing that people have an interest in hearing and is in the public interest to protect.