Costly libel suits are stifling science

From The Sunday Times;  June 14, 2009 by Simon Singh


Last year I published an article in The Guardian about chiropractors who claim to treat childhood conditions such as asthma, colic and ear infection. My views on that treatment clashed with those of the British Chiropractic Association (BCA) and it threatened to sue me for libel.

Although The Guardian offered a right of reply, the dispute was not resolved and the BCA served proceedings. At this point, I could have backed down, apologised and paid a relatively small amount of damages. However, I believe that my article is important and covers a matter of public interest, so I have decided to fight the libel action.

So far, standing by my article and fighting the case has taken up a year of my life and has cost £100,000; the battle could continue for another year, and final costs could exceed £500,000.

It seems ridiculous that I should have to pay such vast amounts of money to defend an article about an important health issue. I am not alone: libel suits against scientists and science journalists are increasingly common.

For example, Dr Peter Wilmshurst is a consultant cardiologist at the Royal Shrewsbury hospital who is being sued for libel. Before I describe his case, it is worth saying that Wilmshurst has a reputation as someone with the courage to speak out when others might feel intimidated. Indeed, in 2003 he received a HealthWatch award for “his dogged and selfless pursuit of the truth”.

More recently, while attending a medical conference in Washington DC in 2007, Wilmshurst gave an interview to a journalist from Heartwire, an online cardiology news service. He had been involved in a research project to assess the impact of a heart implant called STARFlex and made some critical comments about the resulting data. This caused the manufacturer to sue him.

As well as having to cope with the emotional stress of fighting a legal battle, he is faced with the threat of financial ruin. He could have backed down when threatened with a lawsuit, but Wilmshurst is not prepared to recant. HealthWatch has started a fund to help him to fight his case.

Although Wilmshurst’s comments were made in America, to an American journalist from an American website, about an American company, the case has been brought to an English court, probably because English law presents libel defendants with the greatest uphill battle.

There are several reasons the English libel system is unfair, but the greatest problem is that of costs. A report by the Centre for Socio-Legal Studies at Oxford University pointed out that the costs in defamation litigation are 100 times higher in England and Wales than most other European countries. Trials rarely cost less than £100,000 and often exceed £1m.

Even if a journalist is convinced that an article is defensible, the risk of a poor judgment or losing on a technicality, with the ensuing financial disaster, is just too great to take. Therefore good journalists are forced to apologise and important articles are withdrawn. Worse still, journalists are increasingly likely to avoid investigating certain subjects for fear of a libel action. And it is not just individual journalists who feel intimidated, but also local and national newspapers. The result is that British readers do not get to hear the truth.

I have recently supported a campaign calling for reform of the libel system. We already have more than 10,000 signatures (including those of Stephen Fry, Ricky Gervais, Richard Dawkins and Sir Tom Stoppard) and you can also sign up at www.senseaboutscience.org/freedebate.

I should emphasise that we are not suggesting the concept of libel should be dropped; rather that other countries have quicker, fairer and more efficient libel processes and we should follow them.

One solution would be to create the equivalent of a small claims court for libel cases. Currently, a legal battle concerning £10,000 of damages could cost £1m in legal fees and take two years to resolve, whereas a quick adjudication based on evidence that can be presented within a month of the libel action being brought should be beneficial to both parties. The only people who would object to reform are those who wish to use the high costs of the current system to bully journalists into submission.

Perhaps the starkest indication that parliament needs to examine our libel laws is that American legislators are acting to block them. They recognise that free speech in America is compromised because US journalists have been dragged into an English libel court (so-called “libel tourism”) and forced to back down because of the high costs involved. Congress is considering a bill, which has already been passed by the state of New York, that would make English judgments on libel unenforceable in America. There is clearly a problem with English law when other countries have to invent new laws to pick up the pieces.

Simon Singh's latest book, Trick or Treatment? Alternative Medicine on Trial, is published by Corgi, priced £8.99