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.

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Fake news sells because people want it to be true

The rise of bullshit, from George Orwell to Donald Trump.

When is a lie not a lie? Recently, the Daily Telegraph reported that university students had demanded that “philosophers such as Plato and Kant” be “removed from [the] syllabus because they are white”. Other outlets followed suit, wringing their hands over the censoriousness of today’s uninquiring young minds. The article generated an extraordinary amount of consternation click bait. Angry responses were written and hot takes were quick-fried and served up by outlets anxious  to join the dinner rush of  ad-friendly disapproval.

It’s a story that could have been designed to press every outrage button of the political-correctness-gone-mad brigade. It has students trying to ban things, an apparent lack of respect for independent thought and reverse racism. It seemed too good to be true.

And it was. In reality, what happened was far less interesting: the student union of the School of Oriental and African Studies (Soas) at the University of London had proposed that “the majority of philosophers on our courses” be from Asia and Africa, and that the Western greats be approached from a “critical standpoint”. Some might consider this a reasonable request, given that critical analysis is a component of most philosophy courses, and Soas has a long tradition of promoting the study of the global South. Yet a story about students declaring Kant irrelevant allows the Telegraph to despair for the youth of today and permits advertisers to profit from that despair.

People didn’t start pumping out this stuff because they decided to abandon journalistic ethics. They did so because such principles are hugely expensive and a hard sell. Even those of us who create and consume news can forget that the news is a commodity – a commodity with a business model behind it, subsidised by advertising. Rigorous, investigative, nuanced content, the sort that pays attention to objective facts and fosters serious public debate, is expensive to create. Talk, however, is cheap.

Fake news sells because fake news is what people want to be true. Fake news generates clicks because people click on things that they want to believe. Clicks lead to ad revenue, and ad revenue is currently all that is sustaining a media industry in crisis. Journalism is casting about for new funding models as if for handholds on a sheer cliff. This explains a great deal about the position in which we find ourselves as citizens in this toxic public sphere.

What has this got to do with Donald Trump? A great deal. This sticky, addictive spread of fake news has fostered a climate of furious, fact-free reaction.

Press outlets give millions of dollars of free coverage to Trump without him having to send out a single press release. The reality TV star is the small-fingered god of good copy. The stories write themselves. Now, the stories are about the threat to the future of journalism from the man who has just entered the Oval Office.

Trump’s first press conference in six months, held at Trump Tower in New York on 11 January, was – by any measure – extraordinary. He did not merely refuse to answer questions about unverified allegations that he had been “cultivated” by Russia. He lost his temper spectacularly with the assembled press, declaring: “You’re fake news! And you’re fake news!”

Trump did not mean that the journalists were lying. His attitude to the press is straight from the Kremlin’s playbook: rather than refute individual accusations, he attempts to discredit the notion of truth in journalism. The free press is a check on power, and Trump likes his power unchecked.

Writing in the Guardian in 2015, Peter Pomarantsev noted of Putin’s propaganda strategy that “these efforts constitute a kind of linguistic sabotage of the infrastructure of reason: if the very possibility of rational argument is submerged in a fog of uncertainty, there are no grounds for debate – and the public can be expected to decide that there is no point in trying to decide the winner, or even bothering to listen.”

If people lose trust in the media’s capacity to report facts, they begin to rely on what “feels” true, and the influence rests with whomever can capitalise on those feelings. Donald Trump and his team know this. Trump doesn’t tell it like it is. Instead, he tells it like it feels, and that’s far more effective.

Fake news – or “bullshit”, as the American philosopher Harry G Frankfurt termed it in a 2005 essay – has never been weaponised to this extent, but it is nothing new. George Orwell anticipated the trend in the 1930s, looking back on the Spanish Civil War. “The very concept of objective truth is fading out of the world,” he wrote. “Lies will pass into history . . . In Spain, for the first time, I saw newspaper reports which did not bear any relation to the facts, not even the relationship which is implied in an ordinary lie . . . In the past people deliberately lied, or they unconsciously coloured what they wrote, or they struggled after the truth, well knowing that they must make many mistakes; but in each case they believed that ‘facts’ existed and were more or less discoverable.”

This is the real danger of fake news, and it is compounded by a lingering assumption of good faith on the part of those who believe in journalistic principle. After all, it’s impossible to prove that a person intended to deceive, and that they didn’t believe at the time that what they said was true. Trump may believe in whatever “facts” he has decided are convenient that day. When he insists that he never mocked a disabled reporter, whatever video evidence may exist to the contrary, he may believe it. Is it, then, a lie?

Of course it’s a lie. People who have no respect for the concept of truth are still capable of lies. However, they are also capable of bullshit – bullshit being a register that rubbishes the entire notion of objective reality by deeming it irrelevant. The only possible response is to insist, and keep insisting, that the truth still means something.

Laurie Penny is a contributing editor to the New Statesman. She is the author of five books, most recently Unspeakable Things.

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era