I was at the UK Supreme Court yesterday to hear the judgment in Lachaux v. Independent Print Ltd and another. It was a significant challenge to section 1 of the Defamation Act 2013, which long-term readers of this blog will recall was the (successful) end result of English PEN’s Libel Reform Campaign. Section 1 of the law introduced a test of ‘serious harm’ before a claimant could sue. It was designed to expand the space for free speech by weeding out trivial claims.
A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
The Scottish Law Commission’s consultation on the law of defamation closes this week. If you want take a stand for free speech in Scotland, then an easy but important thing you can do is co-sign the Libel Reform Campaign’s letter to Lord Pentland, the chair of the commission. Last month I spoke to the Bookseller about defamation reform, after the incoming president of the Publishers’ Association, Simon Barr, said that it was important that it was important to close the “loophole” caused by the different defamation regimes in England & Wales, Scotland, and Northern Ireland. Long-time readers of this blog will recall that while the Westminster parliament has legislated, the parliaments at Holyrood and Stormont have not yet done so. There are many reasons to reform defamation, but to my mind the one that should motivate publishers in particular is this:
Another consequence is the possibility legal costs will dent budgets for breaking new authors. “If publishers are spending money on libel, they’re not spending on new stuff,” Sharp said. And the books that get binned, it won’t be the mainstream commercial titles, it’s going to be the experimental stuff – the first time authors, the challenging and the quirky things that are a bit of a risk.”
The Scottish Law Commission has said it will include a review of the defamation law in its ninth programme of reform. That’s fantastic news for those of us in the Libel Reform Campaign who want to ensure that the space for free speech is just as wide in every corner of the United Kingdom. David Leask at the Daily Heraldreported the story and his article puts the review in context. Yrstrly is actually quoted briefly in the piece, but I prefer this quote from my colleagues at Scottish PEN:
We’re not just campaigning on this to plug a loophole – we’re trying to put in place a structure that supports a healthier media landscape in Scotland.
In many ways, the Defamation Act 2013 was good for medicine. During the course of the Libel Reform Campaign, English PEN met dozens of doctors and medical journalists who had been silenced by the famously restrictive English libel law. Pharmaceutical companies used the archaic law to prevent the publication of valid criticism by medical professionals. Fiona Godlee, editor of the British Medical Journal, told a Libel Reform rally how factual reports on medical treatments had been ‘softened’ or even spiked because of libel fears. The Defamation Act 2013, which English PEN and the Libel Reform Campaign spent three years fighting for, gives strong legal protections to peer reviewed articles. Patients and commissioners should be able to learn of any doubts that doctors have about pharmaceuticals and new treatments. The Act also includes measures to limit the progress of trivial claims, and a new public interest defence. In 2007 Goldacre faced a libel claim from vitamin pill manufacturer Matthias Rath after he used his ‘Bad Science’ column to critique claims that these pills could cure AIDS. Although Goldacre eventually won the case brought against him, the battle left him significantly out of pocket. The new Act should help journalists like Dr Ben Goldacre see off the pharmaceutical libel bullies. Continue reading “An Enclosures Act of the Mind? Libel and the NHS”