Defamation bill gives defence of qualified privilege to peer reviewed journal articles

BMJ 2013; 346 doi: (Published 25 April 2013) Cite this as: BMJ 2013;346:f2691
  1. Clare Dyer
  1. 1BMJ

A bill to reform libel law in England and Wales and make it harder to stifle scientific debate is expected to become law later this year, after it was saved by a last minute cross party consensus.

The Defamation Bill creates a statutory defence of public interest and gives a defence of qualified privilege to peer reviewed journal articles and reports of scientific conferences.

The bill’s survival was threatened when a House of Lords amendment requiring companies to prove that the allegedly defamatory statement caused or was likely to cause them substantial financial loss before they could launch a libel action was voted down in the House of Commons after government opposition.1

But the bill was saved when it went back to the Lords and peers accepted an alternative government amendment. This will not require companies to prove financial loss before bringing a claim but means that corporate bodies trading for profit will not be able to succeed in a claim unless they can prove serious financial loss.

Anyone sued for libel will be able to apply at an early stage for the action to be struck out on the grounds that the serious harm test is not met, said Tom McNally, the Liberal Democrat peer who is steering the bill through the Lords for the government.

He promised that rules would be made allowing either party to apply for early rulings on other key aspects of the claim, such as the meaning of the words used and whether the statement was one of fact or comment. And measures would be introduced before the bill came into force to give cost protection to parties of limited means.

Another amendment that would have banned companies providing public services from suing for libel was defeated in the Lords, but peers suggested that the courts might further develop the common law that already bars local councils and government departments from bringing defamation actions.

McNally said that the cases of the cardiologist Peter Wilmshurst and the science writer Simon Singh had highlighted the deficiencies in the law.2 Wilmshurst was sued by the US based device maker NMT Medical over criticism he made of the company’s research, in which he was a principal investigator, to a journalist on a US cardiology website. The British Chiropractic Association, a corporate body, sued Singh over an article in the Guardian newspaper accusing it of “promoting bogus treatments.”

McNally said that the position would be different in both cases once the bill became an act. Anyone suing them would have to pass a “serious harm” test, and they would benefit from the new public interest defence and costs protection measures.

He said, “More generally, to support the scientific and academic debate, the bill also creates a new defence against libel for peer reviewed material in scientific and academic journals and extends qualified privilege to reports of scientific and academic conferences.”

He added, “Although I am not sure that we will ever be able to protect everyone from the speculative chilling solicitor’s letter, I hope that people receiving that chilling letter will realise that the law has changed. It has changed to protect them and build in protection for the Dr Wilmshursts and Simon Singhs of the future.”


Cite this as: BMJ 2013;346:f2691