How our libel laws censor scientists

While the US and other countries have brought their libel laws up to date, England still has a 19th-

When parliament returns from summer recess on 6 September, it will begin serious consideration of a draft libel reform bill. Scientists are quite rightly taking pride in how they helped to push the issue of libel up the political agenda.

One of the key arguments made by those of us connected with science was that many doctors, scientists and journalists sued in London, such as Ben Goldacre, Peter Wilmshurst, Francisco Lacerda, Henrik Thomsen and I (I was sued for libel by the British Chiropractic Association in 2008; the case was eventually dropped in April 2010), would not have faced such threats from a US court because the United States has a far more liberal attitude to free speech. However, this has not always been the case.

In 1797, the Englishman William Cobbett was sued for libel in Philadelphia for criticising the highly respected American physician Benjamin Rush. Cobbett had stated that Rush had "contributed to the depopulation of the earth" in the wake of major yellow fever epidemics in 1794 and 1797.

Rush was a fierce advocate of bleeding patients and he would sometimes apply this method of treatment to a hundred patients in a single day. But the evidence appeared to indicate that his bloodletting sprees coincided with higher death rates.

Cobbett, who had very little chance of defending himself against a libel law that was largely based on the English system, lost the case. He was ordered to pay $5,000 compen­sation to Rush - then the largest award ever paid out in Pennsylvania.

Today, we know that bloodletting, which had been practised for thousands of years, did far more harm than good to patients. Cobbett was right to raise his concerns; however, he ended up being bankrupted instead of praised for writing his article on a matter of great public interest.

Speaking freely

The US libel system continued to follow its English counterpart - essentially quashing criticism and undermining free speech - until a landmark decision in 1964. The case revolved around an advertisement published in 1960 in the New York Times, asking for funds to defend Martin Luther King Jr, who was being accused of perjury.

Crucially, the advert mentioned the treatment of civil rights protesters in Montgomery, Alabama, which caused the Montgomery public safety commissioner, L B Sullivan, to sue. Even though Sullivan was not specifically mentioned in the newspaper advert, he won $500,000 in an Alabama court judgment. This was in addition to the $300m that news organisations across the US already owed the Southern states as a result of similar libel actions.

Not surprisingly, such mounting debts and the threat of further suits had a chilling effect on newspapers, but the New York Times decided to fight back by taking this particular case to the Supreme Court. The subsequent judgment shifted the balance towards the right to free speech, and away from the right to reputation, by declaring that public figures (such as officials or corporations) that sued for libel would have to prove so-called malice in order to succeed in winning a libel case.

In other words, even if a newspaper article turned out to be incorrect, it would remain on safe ground as long as its claims were neither motivated by malice nor based on reckless journalism. The American view is that a democratic society relies on journalists being able to criticise powerful corporations and individuals without being intimidated by them.

While the US and other countries have brought their libel laws up to date, England still has a 19th-century attitude to free speech. Our laws put every conceivable hurdle in front of any writer who tries to defend an article, blog post or research paper against a libel action.

Worse still, publication on the internet allows English laws to be used to threaten free speech globally. This embarrassing state of affairs means that we urgently need to push ahead with substantial libel reform - not just for our own sakes, but for the sake of writers all around the world. Some may argue that English reform should not go as far as adopting the US libel system. After all, why should corporations be prevented from suing for libel if their reputation has been sullied?

The American response is that companies do not need to sue for libel, because they have huge public relations budgets and can always counter criticism. And, in extreme cases, when journalists have acted unprofessionally, US companies still have the right to sue for malicious falsehood.

Bully boys

On balance, the Americans seem to have a better appreciation of the value of free speech and they have accordingly struck a fairer balance between reputation and the right to criticise. They feel it is better that companies be vulnerable to investigative journalism than to allow them to use libel law to bully their critics into silence.

We may not want English libel laws that completely mimic the US system in every detail. But there is a growing consensus that we need to shift, at the very least, towards the balance that emerged after the New York Times Company v Sullivan decision.

There are those with vested interests who argue against any move towards increased free speech, who defend the status quo and who criticise US libel laws. Such critics would do well to remember that, despite the liberal libel laws on the other side of the ocean, American civilisation has not yet crumbled and US capitalism has not collapsed. Free speech is a right, not a compromise.

Simon Singh is co-author of "Trick or Treatment? Alternative Medicine on Trial" (Corgi, £8.99). He campaigns for libel reform.

This article first appeared in the 16 August 2010 issue of the New Statesman, The war against science