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Libel Law

Volume 519: debated on Wednesday 1 December 2010

Motion made, and Question proposed, That this House do now adjourn.—(Mr Goodwill.)

If the world has a capital of free speech, it is Britain. If it has a centre of free speech, it is this Chamber, as you know well, Mr Speaker. Yet in the last few years, Britain has become a watchword for something else—the use of our libel law to suppress free speech.

This is not an esoteric philosophical issue. Free speech is the mother of freedom of thought and freedom of thought is the mother of many virtues, including integrity, individualism and creativity. That is why Britain has a vigorous and successful tradition of high culture and science, as well as of democracy. As I will demonstrate, all those virtues of British culture have been suppressed, to a greater or lesser extent, by our libel law.

As a Parliament, we have failed to defend one of our nation’s primary virtues—free speech. We have also failed in the duty to protect the weak and vulnerable from the rich and powerful. More often than not, it is the rich and powerful who use the libel laws to intimidate the less wealthy and the less powerful, as I shall demonstrate. Perhaps the best demonstration that English libel law has become a weapon of the rich and powerful is the extent to which they choose to use the English courts over any other option and over the courts of any other country. When Boris Berezovsky sued a Russian TV company, he did so not in Russia, where the deed occurred, but in England. Similarly, Roman Abramovich chose to sue an Italian newspaper not in Rome, but in London.

In 2004, the Saudi billionaire, Khalid bin Mahfouz, launched a libel action against Rachel Ehrenfeld, the American author of “Funding Evil: How Terrorism Is Financed—and How to Stop It”. The book claimed that Mahfouz financed al-Qaeda. It was not published here, but it was available online. Mahfouz brought the case not in America or Saudi Arabia, but in Britain, and the court awarded him substantial damages. As a direct result, New York law was changed to prevent British judgments applying in the US and American national law is undergoing the same change.

Those rich men each brought their cases under the English judicial system, rather than in the appropriate forum, because English libel law is complex, clumsy, expensive and draconian. It is 140 times more expensive to defend a libel case in England than in other European nations. As a result, it favours the wealthy man who has the most financial stamina and can afford the most expensive lawyers. Although libel tourism is not the most important weakness in English libel law, it is the starkest symptom of how unfair it can be, compared with every other jurisdiction in the modern world.

Perhaps the best domestic example of this grotesquely expensive system is the Naomi Campbell case. A newspaper wrote about her drug problem. It was sued and lost on the grounds of breach of confidentiality. Although the story was true, the legal fees alone cost more than £1 million.

How did all that come about? English libel law was largely developed centuries ago by English judges, as an alternative to duelling to protect the honour of gentlemen. I am sure that no Member wants to see Hampstead heath littered with the bodies of dead journalists, but I am not sure how much of an improvement that new law was. It has been compounded with undoubtedly well intentioned European Union and European Court of Human Rights law, and we have ended up with dreadful unintended consequences.

One of the most egregious consequences has been the rise of the so-called super-injunction, which bans any reporting of a case at all. The most extreme of those was the Trafigura case, which you will remember, Mr Speaker. Trafigura was accused of dumping toxic waste on the Ivory Coast, and for a while its lawyers secured a ban on the reporting even of questions in Parliament. In so doing, they overturned the absolute right to free speech fought for and won more than two centuries ago by John Wilkes. That is a suppression of free speech in this country that no one in the House should countenance or tolerate.

There is worse yet: the crushing of free speech in science and medicine. Both those disciplines advance by conjecture and refutation, through the advancing of theories and the testing of them by experiment. Free dispute and unfettered argument are essential to that process. Yet we are witnessing, time and again, the use of English libel law by powerful commercial interests to suppress legitimate discussion of scientific fact and medical effectiveness.

That is not entirely new. A famous member of this House, William Cobbett, was bankrupted by a lawsuit in 1797 after he pointed out that the practice of bleeding victims of yellow fever probably killed a number of them. He fled the lawsuit and the victims continued to be bled, and of course continued to die.

In modern times, the starkest example was the thalidomide case. For some time, The Sunday Times was prevented from publishing articles alleging negligence in the manufacture and distribution of the drug, which, as Members will remember, caused terrible deformities in the children of women who took it in pregnancy. That judgment was eventually overruled, and the law was rebalanced slightly to favour free speech in the Contempt of Court Act 1981. Unfortunately, however, there are still actions by commercial companies and other vested interests to suppress criticism of medical products and practices.

I shall give an example. Henrik Thomsen, a Danish radiologist, raised concerns that Omniscan, a drug used to enhance medical scanner images, was causing crippling pain and even death in a few patients. Despite the fact that medicine advances by a process of critical appraisal, the maker of the drug, GE Healthcare, sued him in the British courts, clearly in order to silence him. The suit has been resolved, but another medical specialist, the eminent cardiologist Peter Wilmshurst, has faced similar treatment. At a cardiology conference not in Britain but in Washington DC in 2007, he criticised a product made by an American company, NMT Medical, to deal with symptoms of hole-in-the-heart syndrome. NMT sued Mr Wilmshurst not in America but in the English courts. He courageously decided to fight the case, specifically to defend free speech.

Time and again, commercial companies take such action to silence critics. The proper, responsible, scientific way of dealing with criticism in medicine is tousb present the data and confront the argument. Using the law to silence legitimate criticism is to put shareholder interest above public health and, sometimes, public safety.

The best known case in England, of course, is that of Simon Singh, who essentially called some of the claims of chiropractors bogus. The British Chiropractic Association sued him and, after a protracted legal battle, lost. Nevertheless, he ended up hundreds of thousands of pounds out of pocket in addition to losing two years of his life—two years of stress, anxiety and the prospect of financial ruin. A less courageous man would have buckled, and indeed most do. That, of course, is the purpose: to intimidate critics out of saying anything, or to force a humiliating retraction, effectively gagging the press from reporting such criticism.

The tactics used are carefully refined. They are known as “lawfare” and are designed to focus the financial intimidation on the individual who is least able to bear it. The most recent demonstration of that nasty tactic would be ludicrous—bordering on the farcical—were it not so serious in its wider implications. It involves a product, elegantly called “Boob Job”, sold at £125 a jar and produced by a company called Rodial. The Daily Mail sought the advice of a leading consultant plastic surgeon, Dr Dalia Nield, of the London Clinic. As one might expect, she questioned its effectiveness and suggested that if it had the physiological effects claimed for it by its producers, it might be dangerous.

Rodial threatened Dr Nield with legal action. It has not threatened the Daily Mail, which carried her comments, because it has the resources to fight back, just Dr Nield, to get the maximum intimidation for the minimum risk. The proper response of any self-respecting company would be to publish the detailed composition of its product and the data supporting its claims, and engage experts to test those claims and carry out safety tests. That would be the approach of a respectable company, but I am afraid that Rodial has not taken such an approach—it has taken instead the approach of a charlatan and a bully.

Of course, Rodial is not alone. When NMT threatened Peter Wilmshurst with a lawsuit, it did not threaten the BBC, which broadcast his comments, because the BBC can fight back. When the chiropractors sued Simon Singh, they did not sue The Guardian, which published his comments, because The Guardian can fight back. That is why it is called “lawfare”—it is the deployment of judicial shock tactics against the most defenceless part of the opposition. It is a disgraceful tactic, and it should not be possible under any decently balanced judicial system.

The effect of “lawfare” is to chill free speech in science, medicine and many other areas. In this age of the internet, that chilling effect does not stop at our borders. We should remember that English is the language of science. The impact of our dysfunctional laws will become more global as more corporations come to understand what they can do to use our laws to suppress criticism.

I wanted to highlight the fact that “lawfare” operates not merely in science. My constituent, Hardeep Singh, has been battling for four years in the ludicrously named case of His Holiness v. Singh. He has been accused by a sect leader in the Sikh tradition of libel, and it has taken up four years of his life and thousands of pounds to defend his claim in a religious dispute that, in my view, is not able to be decided by the courts.

The hon. Lady is entirely right. I used science and medicine to demonstrate the starker effects of “lawfare”, but she has demonstrated one of the reasons why we debated the law on religious hatred: to allow unfettered discussion of religion, which is another great tradition of British democracy. I apologise to her constituent because I think of his case as Singh II, but it is just as important as the Singh case I cited, because both demonstrate only too clearly that we must get a grip on British libel law to prevent it damaging every aspect of our culture and tradition of free speech.

That brings me to what we should do. Regrettably, there is no single, simple solution. This week is the first anniversary of the Libel Reform Campaign, which encompasses campaigning organisations such as PEN, Index on Censorship, Sense About Science and others. There are a variety of issues that we need to address.

The cost of defending libel cases should be brought down. One step would be not to remove jury trial, but to introduce a tribunal process to deal with all but the most serious cases. The Minister might also care to tell us about his Green Paper—published a few weeks ago, I think—in which he talks about contingent fee arrangements and their possible reform, which might be another way of reducing costs. The law should focus on protecting individual reputation, without allowing heavy-handed commercial intimidation. One step towards that might be not to allow commercial companies above a certain size—in fact, really rather a small size—to bring such suits unless they can, in advance, demonstrate financial damage.

The public interest defence—again, this is something that the hon. Lady will be interested in—is too vague and unhelpful to authors of legitimate criticism. A stronger and clearer defence than that provided by the so-called Reynolds defence should be instituted. In particular, there should be a broader definition of what constitutes fair comment. In the light of what I have said about scientific and medical concerns, such a definition should be designed to exclude scientific and medical dispute from the courts completely. There should be intelligent limits on what constitutes multiple publication. For a court case to be brought in Britain, a significant proportion—certainly more than 10%—of the publication should have been in Britain. As the House can see, there are many proposals—I have given only a short list—that need to be considered. I should like the Minister to confirm that the Government will be introducing a Bill in 2011; that he will consult Index on Censorship, PEN, Sense About Science and other campaigners before publishing it; and that the Government will correct this unintended and unwanted systemic failure in our judicial system.

I shall finish by quoting the Appeal Court judges in the Simon Singh ruling. Speaking about the words used by Simon Singh in his criticism of the chiropractors, they said that his

“opinion may be mistaken, but to allow the party which has been denounced…to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.”

The judges went on to quote Milton, writing about his visit to Italy, from 1683 to 1689:

“I have sat among their learned men…and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought…that nothing had been there written now these many years but flattery and fustian. There it was…I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.”

When the judges had finished quoting Milton, they said:

“That is a pass to which we ought not to come again.”

I say to the Minister: it is a pass that the coalition Government ought not to allow to come again. To achieve that, we need clearly thought through and thorough reform of this bad law, to put free speech back at the pinnacle of public life in Britain.

I am grateful to my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) for securing today’s debate on such an important and contemporary issue. Let me start by confirming that the Government are firmly committed to reviewing the law on defamation in order to protect free speech, and that is reflected in our coalition agreement. My noble Friend Lord McNally confirmed that commitment in July by announcing on behalf of the Government that we will publish a draft defamation Bill for consultation and pre-legislative scrutiny in the first Session of this Parliament, with a view to introducing a substantive Bill as soon thereafter as parliamentary time allows.

Our core aim in reviewing the law is to ensure that responsible journalism, academic and scientific debate and the valuable work of non-governmental organisations are properly protected, and that a fair balance is struck between freedom of expression and the protection of reputation. We want to ensure that the right balance is achieved, so that people who have been defamed are able to take action to protect their reputation where appropriate, but that free speech is not unjustifiably impeded.

Ensuring that the right balance is struck is a difficult and sensitive exercise. It raises complex issues on which a wide range of differing views are likely to be held. In recognition of that, I can confirm to my right hon. Friend that we believe that any reform proposals will need to be the subject of extensive consultation, and that publication of a draft Bill for pre-legislative scrutiny, together with a full public consultation, represents the most effective approach to achieving substantive provisions that focus on core issues of concern where legislation can make a real difference.

Since Lord McNally’s announcement, the Ministry of Justice held informal discussions with a range of people and organisations with an interest in defamation law to ensure that their views are taken into account. These included: non-governmental organisations and libel reform campaigners; claimant representatives and members of the legal profession; representatives of the media and the publishing industry; internet service providers and other internet-based organisations; and representatives of the science community. I can confirm to my right hon. Friend that they included, as he requested, Index on Censorship, PEN and Sense About Science.

My right hon. Friend featured the position of the science community very strongly in his remarks. It would be inappropriate for me to comment on many of the cases that he mentioned, given that proceedings are pending. I can confirm, however, that we are very much aware of the concerns about the harmful impact that the current law is having on scientific debate. The case of Simon Singh and his brave stand for his beliefs have been widely reported, and I was pleased to hear his position being clearly explained this evening by his MP, the hon. Member for Slough (Fiona Mactaggart). We want to ensure that any provisions that we introduce will help to address those concerns and enable robust scientific and academic debate to flourish without being hampered by the threat of libel proceedings.

The discussions that we held were extremely helpful in identifying areas in which concerns exist and the possible approaches to tackling the difficulties that arise with the current law. We have also had the benefit of being able to consider the range of issues raised in the private Member’s Bill on defamation that was introduced earlier in the year by Lord Lester of Herne Hill. That Bill was also the subject of a debate called by my hon. Friend the Member for Maldon (Mr Whittingdale) in Westminster Hall in July this year on behalf of the Culture, Media and Sport Committee, which he chairs. It is good to see him here this evening.

It is not possible for me to indicate today precisely what provisions might be included in the Government’s draft Bill on defamation. However, a range of issues have been the subject of much discussion and debate over recent months, and I can confirm that we are giving careful consideration to them, to assess whether it is appropriate to include provisions in the draft Bill. They include the need for a statutory defence relating to the public interest and responsible journalism. Concerns have been expressed by non-governmental organisations, the scientific community and others that there is a lack of certainty over how the common law defence established in Reynolds v. Times Newspapers applies outside the context of mainstream journalism, and that this creates a chilling effect on freedom of expression and investigative reporting. This is a complex area of the law, and we are considering whether and how a statutory defence could be framed in a way that is beneficial and appropriate for a range of different contexts.

We are also considering libel tourism. My right hon. Friend gave various examples of that. There is a widespread perception that the English courts have become the forum of choice for those who wish to sue for libel, and that that is having a chilling effect on freedom of expression. I have to say to him, however, that there are mixed views over the extent to which libel tourism is a real problem. Research conducted in the context of the libel working group’s consideration of this issue did not show a significant number of actual cases involving foreign litigants in the High Court in 2009. However, non-governmental organisations have indicated that a major problem arises from the threat of libel proceedings by wealthy foreigners and public figures, which is used to stifle investigative journalism, regardless of whether actual cases are subsequently brought—hence the fact that the number of cases alone might not accurately reflect the extent of the problem.

We are considering possible options carefully in reaching a decision on the way forward, including the proposal of the Ministry of Justice libel working group for procedural steps to tighten the rules and practice in order to head off inappropriate claims at the earliest possible stage, in cases where court permission is required to serve a defamation claim outside England and Wales. In doing so, we are of course keeping in mind the fact that there is relevant European legislation—in particular the Brussels I regulation—on jurisdictional matters.

We are also considering the difficulties caused by the “multiple publication rule”—whereby each publication of defamatory material gives rise to a separate cause of action subject to its own limitation period—in relation to online material. The effect of the rule is that publishers are potentially liable for any defamatory material published by them and accessed online. That applies however long after the initial publication the material is accessed, and whether or not proceedings have already been brought in relation to the initial publication. We are considering how we could frame a single publication rule to remove the current threat of open-ended liability.

We are also considering a range of other aspects of the law. They include the possible need for provisions on renaming and codifying the existing defences of justification and fair comment; on the basis on which an action for defamation can be brought and whether it should be necessary for claimants to show that they have suffered substantial harm; on the ability of corporations to bring defamation actions; on trial by jury; on defamation in the context of internet publication; and on issues relating to absolute and qualified privilege. There is much ground to cover

My right hon. Friend asked about the use of super-injunctions. I can tell him that the Master of the Rolls has set up a committee to examine their use. We look forward to seeing the outcome of its work soon.

We are pressing ahead with our work to ensure that publication of the draft Bill and the accompanying consultation paper takes place on as timely a basis as possible in the new year. As well as considering the substantive law, we are determined to ensure that costs in all civil proceedings, including defamation, are proportionate. In that context, the Secretary of State for Justice announced to the House on 15 November that the Government were consulting on proposals for reform of civil litigation funding and costs in England and Wales. We are seeking views on the implementation of a package of recommendations made by Lord Justice Jackson in his “Review of Civil Litigation Costs”. The Government are grateful for Sir Rupert Jackson’s report, in which he argues cogently that the costs of civil litigation are too high and are often disproportionate to the sums at issue. I also accept his fundamental argument that achieving proportionate costs and promoting access to justice go hand in hand.

The key proposal on which we are consulting is the one to abolish recoverability of success fees and “after the event” insurance premiums under conditional fee agreements. Defendants who lose their cases are currently liable for those additional costs, which are often substantial. Abolishing recoverability would mean that claimants had to pay their lawyers’ success fees, and would therefore take an interest in the costs being incurred on their behalf. It is clear that if the current situation continues, and claimants continue to have no interest in the legal costs of their own lawyer if they win or in those of the defendant’s lawyer if they lose, the “have a go” compensation culture can only grow.

As well as consulting on that key proposal for reform of CFAs, we are seeking views on implementing a package of Sir Rupert’s recommendations that balances measures for defendants with measures affecting claimants. They include introducing qualified one-way cost shifting, increasing general damages by 10%, strengthening part 36 arrangements, which encourage parties to make and accept reasonable offers, and allowing damages-based agreements in civil litigation, otherwise known as contingency fees. It is hoped that the proposals will result overall in more proportionate costs in all civil proceedings including defamation, while enabling those who need access to justice to obtain it. The consultation on reform of civil litigation funding and costs closes on 14 February 2011, and in due course the Government will publish a response setting out the next steps.

I hope that I have reassured my right hon. Friend and other colleagues that we are taking focused and proportionate action that takes account of many of the issues involved. I believe that it is very important to ensure that the law achieves a fair balance between freedom of expression and the protection of reputation, and that steps are taken to bring the cost of proceedings under control. I thank my right hon. Friend again for the valuable contribution to the ongoing debate on these issues that he has made today.

Question put and agreed to.

House adjourned.