Do proposed libel law reforms go far enough?

“We cannot continue to tolerate a culture in which scientists, journalists, and bloggers are afraid to tackle issues of public importance for fear of being sued,” declared the United Kingdom’s deputy prime minister, Nick Clegg, welcoming his government’s keenly awaited draft Defamation Bill. But how far will the bill go to assuage concerns that threats of libel action are chilling scientific debate?

Open for consultation until 10 June, the draft bill may undergo considerable change on the route to enactment, probably in 2012. Two reforms that have been demanded by campaigners—a ban on companies suing for libel, and better protection for web hosts and internet service providers—are not in the bill. Instead, consultees are asked their opinion on how these issues should be taken forward. Should companies be barred altogether, as proposed by the Campaign for Libel Reform, which demands much of the credit for pushing legal reform up the agenda, or should there be some lesser restrictions?

Reform is important for the likes of Peter Wilmshurst, the interventional cardiologist who was a lead investigator in a clinical trial of the STARFlex septal repair device and who is being sued by NMT Medical, its US based manufacturer, over comments he made at a cardiology conference in the United States about the conduct of the trial (BMJ 2011;342:d1984, doi:10.1136/bmj.d1984).

Coincidentally, less than a week after the bill was published, the maker of another heart device, the Genous stent, announced that it had filed a defamation suit against the cardiologist Pavel Cervinka over the results of a trial on which he was the principal investigator (BMJ 2011;342:d2023, doi:10.1136/bmj.d2023). OrbusNeich complained that Dr Cervinka had defamed it in presenting the findings of the trial, which the company claimed was flawed, at a US cardiology conference and in a peer reviewed US medical journal. Clinicians had stopped using the stent, which Dr Cervinka’s trial of only 100 patients had found compared unfavourably with a bare metal stent, and had terminated other trials, the company said.

The lawsuit was filed in the Netherlands, not the UK. (The clinical trial took place in the Czech Republic, where Dr Cervinka is based; OrbusNeich is headquartered in Hong Kong, but has operations in the Netherlands, as well as in China and the US.) But as another researcher is sued, concern grows that scientists will be less inclined to publish negative results for fear of facing actions for defamation.

NMT’s action against Dr Wilmshurst, launched in 2008, is still rumbling on in 2011. The company last month added a new claim, over an interview Wilmshurst gave on defamation law to a BBC Radio 4 news programme in 2009. He would not have been helped (as someone domiciled in the UK) by measures in the bill to curb libel tourism, or by a requirement for the claimant to show serious harm to reputation, designed to stop trivial claims.

Researchers, it could be argued, have a strong case under the existing common law for claiming that communications about their work are covered by qualified privilege—a defence that protects people who publish defamatory material, even if it later proves to be untrue, as long as they had an honest belief that what they were saying was true. This covers cases where the person who published the information was under a duty to communicate it and the recipient under a duty to receive it, or where publisher and recipient have a common interest in communicating the information. In the 2003 case of Vassiliev v Frank Cass and Co, Mr Justice Eady held that “arcane, scholarly and complex” material in a specialist journal was covered by qualified privilege because of the legitimate common interest between the publisher and the likely readers.

The Vassiliev judgment would have featured strongly if the case brought against Danish radiologist Henrik Thomsen by GE Healthcare over comments at an Oxford conference about its contrast agent Omniscan had gone to trial, says his solicitor, Andrew Stephenson of Carter Ruck. But the case settled early after Dr Thomsen countersued the company for defaming him (BMJ 2009;339:b5615, doi:10.1136/bmj.b5615).

The bill will replace the common law public interest defence, which has evolved through cases, with a defence of responsible publication on a matter of public interest spelled out in statute. The first factor listed for the court’s consideration in deciding whether the public interest applies is “the nature of the publication and its context.” Was it, for example, presented at a scientific conference or published in a peer reviewed journal?

The Campaign for Libel Reform, which says the bill has delivered just over half the reforms it was asking for, wants the public interest defence beefed up further. But what scientists who are sued for libel particularly need is a means of getting an early ruling, before costs mount into six figures, as they have in Dr Wilmshurst’s case.

Although not part of the bill, one of the most important reforms suggested in the consultation is a new court procedure to allow early rulings on preliminary issues before the costs pile up. This might have allowed the court to decide at an early stage not only whether Dr Wilmshurst was speaking on a matter of public interest, but also (along with other reforms in the bill) whether science writer Simon Singh’s Guardian article that accused the British Chiropractic Association of happily promoting bogus treatments was comment or a statement of fact—before he incurred £200 000 costs (BMJ 2010;340:c2086, doi:10.1136/bmj.c2086).