Libel to Change?

The protestors at the #OccupyLSX camp at St Pauls know all about free expression and censorship.  Their chosen site of protest has been a symbol of free thinking for centuries.  Dissident pamphlets were sold in the churchyard, and reformist preachers gave their open-air sermons at St Pauls Cross, long before Wren raised his iconic dome.  In past months, the camp has fought off legal challenges to their presence and the threat of eviction still looms.  The right to political protest is under constant threat as was shown by the recent removal of protestors from Parliament Square.

Both these protest movements have been fighting censorship imposed upon them by landowners and local government.  However, free speech can be suppressed in other ways.  The libel laws of England & Wales enable a form of privatised censorship, where wealthy individuals can launder their reputations in the High Court, and multinational companies can ensure that negative reporting of their business practices and products never reaches the consumer.

The emergence of ‘libel tourism’, where wealthy interests based overseas use the English Justice system as a weapon of reputation management, highlights the nature of the problem.  ?Dr Peter Wilmshurst, a cardiologist from Sheffield, was sued by the Canadian pharmaceutical giant NMT for comments he made at a conference in the United States, and reported on a US-based website.  Wilmshurst was talking about his research showing that a heart implant produced by the company was ineffective.  Publishers Little, Brown spent several years defending litigation over Slave by Mende Nazer, a memoir describing her incarceration in London by a Sudanese businessman.  In both these cases, the defendants prevailed, after spending hundreds of thousands of pounds in lawyers’ fees that they have little hope of recovering.  This is not free speech – it is prohibitively expensive speech!  Other doctors and publishers see this, and decide publication is not worth the cost.

Meanwhile, ordinary people are finding their right to discuss issues that matter to them is being curtailed.  The Citizens Advice Bureau recently had to halt the publication of their report describing the predatory ‘civil recovery’ demands of some High Street chains, due to libel threats.  The parenting website Mumsnet was sued by baby-raising guru Gina Ford, for comments left on one of their forums.  Advocacy groups like Human Rights Watch have been sued for naming and shaming genocidaires around the world.  The British Medical Journal is routinely advised to ‘spike’ articles that criticise pharmaceutical trials, for fear of a libel writ.  For years, reporting of the harmful effects of Thalidomide was censored through the civil courts, and only a ruling from the European Court of Human Rights (the body criticised by David Cameron this week) allowed the scandal to emerge… too late for the hundreds of children damaged by the drug.

However, a window for reform has been prised open by a genuine grassroots movement.  When the popular science writer Simon Singh was sued for libel by the British Chiropractic Association, a large group of scientists and self-styled ‘geeks’, led by the campaign group Sense About Science, were mobilised against the current laws. Meanwhile, English PEN, the writers association, and Index on Censorship co-authored the report ‘Free Speech Is Not For Sale’, highlighting the myriad problems with the law and offering concrete ideas for change.  Jack Straw, the Secretary of State for Justice at the time, was initially sceptical of the need for reform, but changed his mind after the Libel Reform Campaign brought him evidence of the scale of censorship that was taking place.  A motion backing reform was signed by the majority of MPs, and all three parties included libel reform in their 2010 manifestos.  The coalition government has produced draft legislation, which has since been scrutinised by Parliament.  A combination of people power, celebrity spokesmen, and detailed policy research has taken an obscure legal issue to the brink of legislation.

Job done? Problem solved?  Not quite.  Following the News of the World phone hacking scandal, some politicians are concerned about offering the media greater freedom of expression through reformed libel laws.  Could the low public opinion of the mainstream media derail the libel reform process?  Let us hope not.  A key message of the libel reform campaign is that the high costs of fighting a case benefit the wealthy, regardless of what side of the argument they are on.  Rich oligarchs can launch libel claims, confident that their critics cannot afford to defend themselves.  But wealthy media barons can libel individuals with impunity, confident that they can outspend the target of their smears.  The proposed reforms place a premium on truth, public interest, and responsible journalism, which would benefit investigative journalists, biographers, memoirists and scientists, while doing nothing to enable the gutter journalism currently under scrutiny at the Leveson Inquiry.  Meanwhile, changes to procedure, and to the way lawyers are paid, would allow individuals – whether they are libel claimants or defendants – to compete on a level playing field with big companies and international millionaires.

The Libel Reform Campaign is entering a crucial phase.  The coalition Government needs to follow through on its draft legislation, and promise a reform Bill in the next Queen’s Speech.  Those who believe in free expression, and in levelling the legal playing field, should visit www.libelreform.org and help the campaign cross the finish line.

Robert Sharp is Head of Campaigns & Communications at English PEN.