Libel reform needs to keep writers out of court, not make it easier to win once they're there

When Ben Goldacre wrote in the Guardian about a man who claimed to South Africans that "multivitamin treatment is more effective than any toxic AIDS drug" (pdf), he was sued for libel. After fighting in court for 17 months, and spending £535,000 on legal fees, he won the case, and costs were awarded. Three years later, Goldacre has been paid back £365,000. The cost of successfully defending a libel suit – even one over the seemingly open and shut question of whether vitamin pills can cure AIDS – is almost one and a half years of your life and £170,000. Thankfully, the Guardian bankrolled his case. Others aren't so lucky.

The Libel Reform Campaign (a loose coalition comprising Index on Censorship, English PEN and Sense About Science, amongst others) was created to fight for a change to this situation, because Goldacre's story is not the first, nor the worst.

Peter Wilmshurst, a cardiologist, was sued by a manufacturer of a heart implant for casting doubt on its efficacy in a medical conference; his case only ended when the company, NMT, went bust, leaving him unable to claim any costs. Simon Singh was taken to court for pointing out that there is no evidence that chiropractors can treat conditions such as colic by spinal manipulation. That case was dropped by the claimants, with Singh thousands of pounds out of pocket.

It isn't only science writers who face punishment under our overbearing libel laws. The novelist Amanda Craig wrote in yesterday's Telegraph of being threatened for libel by an ex-boyfriend who claimed that a fictional character was a libellous representation of him, based, among other things, on the brand of shoes he wore. The website Legal Beagles was served notice by Schillings LLP for writing and hosting discussions about Retail Loss Prevention, a company which sues alleged shoplifters but has been accused of running a "parallel justice system". David Marshall, the in-house lawyer for consumer affairs magazine Which?, says that "corporations are commonly using libel as a form of reputation management, as they might use a press release". He says that frequently, they are hit with solicitor's letters before negative reviews are even published, threatening action when the lawyers cannot possibly know if the content is libellous.

All these cases, and more, lead to libel reform becoming a cause célèbre. At the LRC's rally yesterday, Brian Cox, Dara Ó Briain and Dave Gorman all spoke passionately of the need for change, and Labour's Robert Flello MP joined with Conservative David Davis and Liberal Democrat Lord McNally to make the point that the aim of libel reform is shared amongst all three parties. And since it made it into the manifestos of all the parties, the coalition is now passing a defamation bill, aimed at fixing the situation.

Unfortunately, the bill is not fit for purpose. The consensus among libel lawyers is that after it is passed, "nothing will change". All of the cases mentioned above would still exist were the bill to pass. Although it improves the situation in some ways, by introducing a protection for peer-reviewed scientific journals, Evan Harris, the former Lib Dem MP, argues that it is actually retrograde in others, especially when it comes to free speech online.

But the biggest single problem is that exemplified by Goldacre's case. If you are sued for libel, it doesn't really matter if you win. The cost of defending a claim is so high – 17 months work and enough cash to buy a small house – that only a fool would open themselves up to that risk. The campaign met yesterday to push, not for a way to win more cases, but for a way to prevent needless court cases occurring at all.

Their proposals include a higher hurdle for corporations to clear before they can sue individuals, as well as a much broader public interest defence, and, crucially, an agreed upon system for restitution outside the courts.

All these points are dearly needed. "Libel is used by rich people in a game of poker to get poor people to go 'all in'," said Dave Gorman. Yet it's even worse than that; if you go all in on a game of poker and win, at least you come out with profit. If you are taken to court for libel, you are going to lose either way.

Worse, because there is no requirement for injured parties to attempt to redress claims out of course, it's not enough to offer retractions or corrections. The only sure-fire way not to end up in court over libel is not to write things that people may sue over at all. "What we haven’t heard about are the tens, hundreds, thousands of cases that didn’t go to court because they were silenced," Gorman points out. "It’s these cases we haven’t heard about that are even more important."

Even some claimants don't like the way the law is now. When Luke Cooper sued the Daily Mail for libel - and won - he would have been happy to settle for £5,000 and an apology, but the all-or-nothing nature of the system meant that the Mail forced him to fight all the way to court, which ended up costing them hundreds of thousands of pounds.

If the defamation bill goes through as it stands, Dara Ó Briain argues that there will have been basically no change from 2009, when a group of supporters organised by David Allen Green first met in the basement of the Penderel's Oak pub in Holborn to discuss Simon Singh's defence. But Lord McNally was having none of it. There is at least one thing which will have changed, he told Ó Briain: they are now meeting in a committee room of the House of Commons. Even if the first attempt wasn't successful, the group will hopefully turn British libel law around.

Updated 11:03 on Friday to correct a reference to the Penderel's Oak meeting.

The Libel Reform Campaign present a petition with 60,000 signatures to Downing Street

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Getty
Show Hide image

I'm a Remain voter who feels optimistic about Brexit - here's why

Take back control is more than just a slogan. 

Most politics geeks have found themselves deliciously sucked into a soap opera over the last few days. It’s fast-paced, personality-based and ripe for speculation. But underneath it all, the deeper, harder questions remain – what does Brexit look like, and how can we make it work?

When news of Leave’s victory broke in the early hours of Friday morning (is it possible that was just a week ago?) I felt like the only Remain voter who had some kind of optimism. Fellow Remainers still reeling from the result berate me for it, but I continue to find two reasons for hope.

First, leaving gives us a chance to build a different type of economy. I don’t wish to belittle the recent economic fallout, but with the right leadership and negotiations, we could use this moment to push for an increase in trade with the Commonwealth and beyond. A fall in the pound will disappoint many, but it could help with a much needed rebalancing of our economy, moving from one predominantly based on financial services in London to manufacturing across the regions. 

Second – and perhaps more importantly – leaving is a chance to rebuild our politics. For too long, millions of people in this country have felt ignored or exploited by those who call themselves democratic leaders. In protest, they have left mainstream parties to join UKIP or the hordes of non-voters. In winning this referendum, they have finally been listened to. Perhaps the pressure cooker of discontent can finally be taken off the boil. Perhaps parties can use this result as a chance to rebuild trust and shake up some of our other institutions that are badly in need of reform. 

This point was really brought home to me by a student in the school where I teach. The morning of the referendum she told me that she didn’t think we’d leave the EU, even if the people voted for it. Her friends agreed, saying it was “weird you have to vote in pencil”. They were scared the people’s voice could so easily be rubbed out. When I saw her the next day, a small part of me was relieved that these students had seen that people can genuinely trump the establishment. 

If you’re not convinced, just imagine the backlash if Remain had won by a point or two. We almost certainly would then have voted in an extremely right-wing government, much the same way that the SNP saw a boost after they lost the independence referendum last year. 

Of course, a positive path for Brexit is far from guaranteed. Any leader that goes back on the vote, or tries to fudge it by saying that open borders are a price worth paying, is going to do worse than plummet in the polls - they are going to undermine our entire democracy. And a whole generation’s trust in politicians is already dangerously low.

But this doesn’t have to be a moment for the right. Good leaders understand that Leave’s “take back control” message was about a genuine concern with our borders. Great leaders will acknowledge that it also reflected a deeper concern about the need for agency. They understand the vote was a rejection of a neoliberal approach to the economy that fails to make space for well-paid work, family and community.

The public voted for decreased pressure on public services and a Britain that would negotiate as hard in India as it would in Germany for trade deals. They voted to end a perceived overcentralisation of power by elites, and create a more democratic Britain that gives more dignity to its people. I might not have believed that leaving the EU was the best way to achieve these things, but I’m on the left because I believe we are best placed to make these desires real.  

The vote to Leave or Remain was a binary decision. But Brexit is not. What type of path we take now depends entirely on the direction we choose, and the perseverance we show along the way.

Rowenna Davis is Labour PPC for Southampton Itchen and a councillor for Peckham