Stifling the debate

Feature | 18 July 2011

The principle that the law should be the same for all has been challenged by doctors and science commentators who say they have been unfairly targeted by organisations trying to stifle medical debate. With the defamation bill now making its way through parliament, one doctor and one science journalist sued for libel explain why they believe the law needs changing.

Should the law offer doctors and those involved in the wider medical debate specific protection from defamation claims? Headline cases in the past few years have given renewed momentum for a change in the law but not all media lawyers support the defamation bill.

William Bennett, a barrister practising from 5 Raymond Buildings, says it might be possible to apply different rules depending on the defendant’s turnover, but that this sort of differentiation would be arbitrary and therefore not satisfactory in principle. There is also no justification in law to, in effect, make it tougher for newpapers to defend libel claims. Instead, he suggests, defendants should build their arguments on the basis that there is no real and substantial tort.

Keith Mathieson, a partner with Reynolds Porter Chamberlain, also believes it would be “problematic” for the law to treat parties differently because of who they are.

To date the little evidence available about the so-called ‘chilling effect’ of libel law also suggests that there has been no obvious unfairness. According to Mr Justice Tugendhat, who gave evidence to the joint parliamentary committee scrutinising the defamation bill last week, of the 200-300 libel claims started each year, only three came to court so far this legal year, with “all but a minute fraction” resolved early. Proponents of the reform, however, have argued that the current law – together with the costs associated with fighting libel claims – puts pressure on defendants to settle. And a string of cases involving scientists have provided fresh impetus to a change in the law.

In December 2009, Henrik Thomsen, a Danish doctor, was sued by US medical giant GE Healthcare for comments he made at a conference in Oxford, saying a contrast agent manufactured by the company had potentially deadly side effects. GE ran nearly £400,000 in legal costs in the first eight months of the dispute. The case eventually settled in February last year; the terms are confidential but GE said in a statement at the time that “it was not its intention to stifle academic debate”.

Then there is Dr Peter Wilmshurst, an English cardiologist based in Shrewsbury, who was sued by NMT Medical following comments he made during a conference over the trial process for a new device manufactured by NMT, and science journalist Simon Singh, who was sued by the British Chiropractic Association for comments he made in his Guardian blog. He won his case on appeal and the association did not appeal further.

So why do such disputes arise in the first place? Last month Solicitors Journal regular Rod Dadak, head of media at Lewis Silkin, said defendants could avoid being sued if they chose their words more carefully. Peter Wilmshurst disagrees, saying that in his case the greatest care was taken, and BBC lawyers’ advice sought, before the programme aired – and it didn’t prevent the case being brought against him (see his response overleaf). His concerns are symptomatic of a general malaise in the wider scientific community which make doctors and other medical professionals self-censor their comments.

The libel bill will, to an extent, address some of these concerns. New provisions would give Reynolds-type protection for comments made by doctors in peer-reviewed journals. Under the proposed new rules, protection would be based on the status of the comment – a procedure followed – rather than attach to the category of person making the comment. “Doctors would not be protected as such but their comments would be because they were made following a particular procedure and vetted by academics,” Mathieson says.

This may be a welcome acknowledgment of the issue but it would still potentially leave doctors like Thomsen and Wilmshurst, and journalists like Singh, exposed to libel suits.

Rod Dadak has been arguing for more effective use of court time to identify issues earlier and avoid costs spiralling. Mathieson also says the test for claimant should be tougher, “to avoid litigation over publication that has not caused tangible harm”. But mostly, he says, the courts should be more astute about examining the merits and a ‘substantial harm’ test more vigorously endorsed.

At the time of going to press the defamation bill was scheduled to be considered by the joint committee on Monday 18 July. Witnesses will include Edward Garnier QC, Solicitor General; Daily Mail editor Paul Dacre; and Times’ journalist Matthew Parris.

Vol 155 no 28 19-07-2011

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