Defamation actions which can chill or stifle scientific debate

 

Libel litigation should not be the means by which scientific controversies are resolved, writes Eoin O’Dell

SIMON SINGH is a renowned science writer, and Peter Wilmshurst is a respected cardiologist.

They are also now high-profile defendants in libel actions taken against them for the expression of scientific opinions.

Singh has written the definitive account of the solution of Fermat’s Last Theorem, a history of cryptography and a chronicle of the Big Bang theory.

His most recent book, co- written with Prof Edzard Ernst, is Trick or Treatment? Alternative Medicine on Trial.

To coincide with its publication in 2008, he published an article in the Guardianin which he wrote that there was “not a jot of evidence” for various chiropractic treatments and that the British Chiropractic Association (BCA) “happily promotes bogus treatments”.

The association denied these criticisms, maintained that the efficacy of chiropractic treatments is well documented, and sued Singh for libel.

Wilmshurst is a cardiologist who, from 2005, was co-leader of a trial assessing the effects upon migraine of a cardiac device manufactured by a US company, NMT Medical. The results published in 2008 showed no positive effect, but Wilmshurst and another member of the study’s steering committee declined to be listed as co-authors of the publication because they were denied access to the whole data set.

Speaking to a US-based online cardiology news services at a conference in the US in 2007, Wilmshurst claimed that some of the data he had seen was “internally inconsistent and mathematically impossible”.

His explanation for the failure of the device to have a positive impact on migraine raised “much larger implications” for its general efficacy. NMT Medical dismissed these criticisms as inaccurate and sued Wilmshurst for libel.

After a two-year battle, the Court of Appeal in Britain recently allowed Singh to assert that his article constituted fair comment and the BCA dropped the case. However the emotional and financial costs to Singh have been huge. The Wilmshurst case is due in court later this year.

These are only two conspicuous examples of a disturbing trend towards using the courts to prevent scientific debate.

This is not what libel law is for. On the one hand, the right to a good name is a basic human right. On the other, the right to freedom expression is a central democratic principle. The aim of libel is to find the appropriate balance between these competing interests.

In both Ireland and Britain, the balance has long been tilted in favour of reputation, not only of individuals but also of companies and organisations. Moreover, libel litigation is complex, costly and notoriously difficult to defend.

This attracts plaintiffs with little real connection to Ireland or Britain to sue for libel in London, Belfast and Dublin.

For example, although Wilmshurst’s remarks were made about a US company at a US conference to a US publication, he is being sued in London. This shopping for a suitable place to sue for defamation has become known as libel tourism, and London is the libel tourists’ most popular destination.

The Singh and Wilmshurst cases have helped to propel libel reform to the top of the British political agenda. It is promised by the new government and a private member’s Bill on libel reform has been introduced into the House of Lords.

In Ireland, the Defamation Act 2009 has already made important changes. It has allowed for the recognition of the Press Council, strengthened defences and simplified procedures.

Its restatement of the defence of fair comment (now called honest opinion) was referred to with approval by the judges who held in Singh’s favour. Its abolition of the rule that meant that each internet download gave rise to a separate action would make a claim against Wilmshurst more difficult in Dublin than in London.

However, the Act is an incomplete reform. It does nothing to prevent libel tourism. Its new centrepiece defence of fair and reasonable publication is unworkable. Its changes relating to damages are very timid.

It confirms that corporations can sue for damages and it will have little impact on the enormous costs of litigation. Consequently, it will not prevent actions aimed at chilling or stifling scientific debate.

Libel law still threatens the open exchange of critical views that is at the heart of the scientific method. Writers potentially self- censor to avoid defamation actions even on matters of serious public interest.

We all suffer when we cannot read about scientific disputes, especially if it is the law rather than science that determines not only what we can know about but also what treatments and medical devices are to be available to us.

The experiences of Singh and Wilmshurst have a great deal to teach about the ills of libel in Ireland, as much as in Britain.

We must not rest on the laurels of our recent reform, since it is far from complete. In particular, much more work needs to be done to ensure freedom of scientific debate – and it should be done before a misconceived case like that against Simon Singh is taken in an Irish court.

Dr Eoin O’Dell is a fellow and senior lecturer in law at Trinity College Dublin; he blogs at http://www.cearta.ie