The killing effect

The law of defamation is expensive to pursue and even dearer to defend. The stress, time and financial cost of a libel case stop people speaking out. Libel law is simple currently: a rich claimant trumps a poor defendant. Newspapers worry about the 'chilling effect' of libel '“ investigative journalism is hampered as a result of lawyers for the press advising their clients to err on the side of caution.

At least it's not a matter of life or death. Well, it is now. The chilling effect turned into the 'killing effect' when claimants realised that a well-drafted claim form is likely to have the effect of silencing an individual who attacks medical products or procedures.

The law is the same whether you are a celebrity or a scientist, an academic or a sportsperson. But there is a huge practical difference. If the libel laws are used to stop a joke we might stop laughing; if they are used to stop medical dissent we might stop living.

The balance of libel law multiplied by the costs of defending a case equals silence. That stops free speech and harms medical research. That the problem is real is shown by the way in which proper scientific journals have to watch over their shoulder using libel readers to stop for any wording that might lead to the journal or the author being sued.

Public interest

The protection of the public can only follow from the introduction and recognition of a full 'public interest defence'. But what is in the public interest? The law recognises that certain matters need to be exempt from defamation law. What is said in parliamentary debate is privileged absolutely. When a lawyer writes a letter of claim, that has qualified privilege; as long as what is said is not known to be false, and one has not been reckless to whether it is false, you can say it. Otherwise, the courts would be clogged up with lawyers being sued by other lawyers (if they were brave enough to write the letters before action) for writing that 'you owe Mrs X £...' or 'Mr Y drove negligently...'.

Journalists get some protection from Reynolds privilege, allowing them to report matters in a responsible way. However, if a doctor was to write about a treatment, surgical device or pharmaceutical product then that doctor can be sued at a cost of hundreds of thousands of pounds. It is that simple, that is why the British Medical Journal chooses not to publish some important case reports on patient groups, and bloggers take down discussions about treatments that didn't work, and why academics have had to modify their writing.

So, what about public policy? It is no coincidence that three of the most significant cases involve science. Rath v Guardian, British Chiropractors v Simon Singh and NMT v Peter Wilmshurst. Wilmshurst gave an interview to a Canadian journalist in the USA that was put on a specialist website. No legal action was taken in the USA; no action has been taken against the journalist or the website.

Medical research relies upon doctors speaking out and challenging theories. They need to do that without the fear of being sued. At present, the risk of being sued is what stops research being published, stops criticism of fanciful theories and therefore stops research. The existence of a law that has that effect is completely against the interests of everyone.

Solving the problem

There are many ways that these problems can be stopped. Make costs proportionate. At present, all libel cases are allocated to the multi-track. Oddly, that means that most people cannot afford to bring libel claims.

The present law is unfair to claimants as well as defendants. Unless you are very wealthy you cannot afford a reputation. Conversely, if you are very wealthy you can afford a reputation that you don't deserve. So, how about fast-track and small claim track libel cases?

The comedian Alexi Sayle said of his successful defence of a libel claim: 'It would have been cheaper to stab the f**ker '“ I'd have just got an ASBO stopping me going into parts of Croydon.'

Inspiration can be taken from trademark law. The misuse of actions to silence criticism could be subject to legislation that the party making the threat or losing at trial has to pay compensation. How about a law enabling you to sue someone for making an improper threat?

There is something wrong in a civilised society when a medic is not allowed to enter into a debate about the efficacy of a treatment. The courts need to be able to look at a case straightaway and ask: 'Is this in the public interest?' If the answer is yes or maybe, then there should be no libel. It is likely that such a test will favour medics and academics rather than celebrities, but that does not matter. While laughter might be the best medicine, if you have a serious illness a well-researched drug is likely to be a better treatment than being told a good joke.

In his recent talk at the 'Free Speech v Privacy' lecture, Mr Justice Eady 'proved' that there was no problem with libel tourism by using statistics that there were only four libel trials last year and four this year (one of which is a re-run of a trial from last year). The other way of presenting those facts is that in the last two years only seven defences have been run to trial. It could be that there are few defensible positions, or more likely that defendants cannot afford to fight to back up what they said.

When the law is so bad that it leaves you speechless it needs changing.