Defamation Act 2013: what scientists need to know

Source: Sam Falconer

Peter Wilmshurst, a cardiologist at the Royal Shrewsbury Hospital, stood up in Parliament in March 2010 and told MPs that he was at risk of losing his home because he had spoken out about the misuse of evidence. Dr Wilmshurst was the lead investigator in a clinical trial of a device designed to close holes in hearts. He saw that the device was not working as it should and in some cases was malfunctioning in a way that put patients’ lives at risk. When Dr Wilmshurst saw that results from the trial were not being fully shared, and he spoke about this at a conference, the manufacturer of the device sued him for libel. The company was able to take a case against Dr Wilmshurst without ever having to show how his statements were wrong or how they damaged the company, and this meant that Dr Wilmshurst faced paying six-figure sums to defend his words. How, he asked MPs, can it be right that a doctor with concerns about a medical device putting lives at risk has to decide if he is willing to risk financial ruin before he speaks out? The Defamation Act 2013, which came into force on New Year’s Day, may mean that researchers and doctors will not have to face decisions like this any more.

The Libel Reform Campaign was launched in 2009 in response to such stories. It brought together the scientific community, vice-chancellors, research councils, science publishers and learned societies, as well as 60,000 individuals who were appalled that out-of-date, complicated and expensive laws were chilling discussions about evidence. Hundreds of people came into Parliament and told their MPs face-to-face that they wanted to be able to read reviews of products that were not biased by legal threats, and their doctors to be able to discuss drug safety openly. This led to promises to reform the laws in the manifestos of all three main parties and ultimately to the Defamation Act.

The new law addresses many of the problems that were causing discussions to be chilled. It now asks claimants to show that they have suffered serious harm before they can continue with a libel case. This should remove the problem of trivial and vexatious claims. Some limits have been put on how companies can use the libel law; they will now be asked to show that they suffered, or are likely to suffer, financial harm before they can proceed with a case.

The Defamation Act also puts a public interest defence into statute for the first time. This is a direct response to the scientists and others who warned politicians about the discussions they were not able to have. This new defence asks the writer to show that they reasonably believed that publication of their material was in the public interest. This will give better protection than under the old, common law, public interest defence, which required writers to show that they had complied with a checklist of 10 factors. This was complicated and expensive and was not useful for anyone other than well-resourced investigative teams, while the law was applied differently by nearly every judge in every case.

Of interest to academics who publish online will be the new procedure for dealing with online writing. Previously a claimant who wanted to get unfavourable material taken off the internet would threaten the host of the material with a libel case, because the online host could have been held liable for it. In practice it meant that the internet service providers – who had no knowledge about or interest in what someone who paid £10 a year for a website wrote – had to make a decision about whether they would go to the expense of defending them. That usually meant that the material was taken down. The new law requires the claimant to go first to the author or editor of the material – the person most able to decide whether to take it down or defend it. We hope that this will help to stop the privatisation of censorship.

Some areas have now been moved away from the courts altogether – there is now qualified privilege for peer-reviewed papers published in academic and scientific journals. Importantly, this means that academic papers get new protection: they cannot be the subject of a libel action as long as the material is published without malice and the reports are fair and accurate. Anyone who quotes from and discusses peer-reviewed material will benefit from protection from Section 6(5) of the Act, as long as it is a fair and accurate report. And in another development, accurate and fair reports of anything said at an academic or scientific conference will be protected by qualified privilege.

So the act is certainly good news for scientists and researchers – but other changes that did not make it into the new law may have made even more difference. We think the public interest defence could be even simpler and thus stronger; we wanted a section in the act that would mandate that trivial cases have to be quickly thrown out; and we campaigned for law that would bar companies from suing in relation to provision of public services.

A lot depends on how the courts apply the new law, so we will have to wait and see before we can be sure that it does answer the calls of the 60,000 people and hundreds of organisations that were involved in the process of drafting it. At various points, we gave the act four out of 10, and then, after improvements, six out of 10. But citizens and scientists deserve 10 out of 10 for making a difference.