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One Year On: Libel Reform Update

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December 2nd 2010 at the Free Word Centre: an update on the progress of the Libel Reform

all-important refreshments

campaign.

Hosted by Jonathan Haewood of English Pen, John Kampfner of Index on Censorship and Tracey Brown of Sense About Science.

English pen have their photos from the evening on Flickr; I managed to avoid being in any of them this time!

From the literature distributed at the event:

The One Year On event follows weeks of further revelations of the impacts of the libel laws:

– Plastic surgeon Dr Dalia Nield was threatened with libel action by the manufacturer of a ‘Boob Job’ cream for saying she was concerned the product was potentially dangerous*

– A survey of bloggers and online forum hosts found that bloggers are particularly affected by the libel laws as they work without the support of a large company so suffer an inequality of arms, particularly where they are writing about companies, institutions and products.

– Yahoo!, AOL (UK), Mumsnet and the Internet Service Providers Association told Prime Minister David Cameron that the current laws make ISPs liable for content hosted by them and means material can get taken down in response to a threat when there may benothing defamatory about it.

* This is in reference to Rodial’s product, a cream called “Boob Job” – covered by Ben Goldacre, and we also mention it in Episode 7 of Super-Duper Woo-Fighting Duo!

Introduction

We were first assured that people’s counter-arguments have led to modification of positions and proposals within the campaign – differing interpretations have been taken on board and the aims of the campaign modified accordingly (in true skeptical fashion!).

It has sparked the first serious public discussion on libel in the UK; no insignificant achievement.

More MPs signed the libel reform EDM than any other in parliament. All parties made a commitment in their manifesto. A Libel reform bill has also come through the lords.

And, of course, Simon Singh won his appeal! Leading to the “Fair comment should be strengthened and clarified” resolution.

In addition, Jonathan has written:

In a year’s hard campaigning we’ve seen a lot of activity – but nothing has actually changed. We are now looking to the Government to produce a Bill that protects the public interest and recognises our changed media environment. We are commmitted to upholding free speech, reputation and access to justice – we just hope that the Government is too.

However, there have also been worrying trends. Scientists, publishers and bloggers are still  regularly being threatened with libel writs.

At the very least we can probably accept that everyone wants to:

– protect free speech

recognise the importance of reputation

maintain access to justice

Richard Allan

(Director of European policy, Facebook)

He states the importance of being able to talking with people as freely as possible, then mentioned the “Twitter bomb threat” (which prompted me to tut loudly; people need to stop calling it a ‘bomb hoax/threat’ because it wasn’t) – speech issues are on the agenda in both the public and political spheres.

In his view, the objective is: legal support for speech (as long as that speech isn’t illegal; i.e. recognise the existence and [lack of] implications of casual talk or ‘the Pub vs. the public) – let’s have a better environment.

They don’t want to have to respond to solicitors’ casual threats of libel. Instead:

– The complainant should go to the author first

Obtain documents from court to say it’s a genuine complaint

Internet companies take content down first and ask questions later! (Once bitten…)

There needs to be a single publisher rule; a limitation of 1 year; long enough for someone to take action if it is in fact actionable.

Facebook is globally accessible but libel tourism isn’t acceptable.

We need to respect that people have views on things – they do and will continue to discuss them in public fora, including online.

Unless this is understood, it is simply “an accident waiting to happen” – will it take a few solicitors to pick it up and run action to have dramatic chill, before things change? Let’s get legislation now rather than fix it after the fact.

Emily Cleevely

(Head of Policy, Publishers’ Association)

Emily started by asserting the value of publishing and why it’s in the government’s interest to protect it, having generated £4bn revenue in the UK in 2009; up 2.6% in 2010 – in the current market. If we’re to get out of the recession, surely we should be supporting growing industries?

Is publishing the key? It also aids with social mobility e.g.  in the form public libraries.

Creativity should be protected – authors must have freedom of expression without great fear of libel action. Not just trials but also the threat of libel, the chill, that convinces too many that silence is a safer option.

Emily gave the example of Wayne Rooney’s book, which apparently had a lot of things taken out/changed. Not sure anyone was too impressed with this point, particularly Matt

The PA will continue to be active in politics and media regarding Libel Reform.

Most interestingly, Emily gave some stats from a survey conducted in October this year regarding the effects of libel on PA members (which will be published in a January 2011 report): 100% (of the 65% total membership that participated in the study) said they had modified content or language in a book prior to publication to avoid the risks presented by current UK libel laws.

Richard Mollet, CEO of the PA, said:

The Publishers Association has been campaigning for libel reform for many years and is concerned about the chilling effect which the current law has on freedom of expression. The results from our survey demonstrate that libel law as it currently stands is a huge burden to many publishers in the UK and may act as an obstacle to growth, innovation and freedom of expression within the sector.

Tom McNally

(Minister of State, Minister of Justice)

[Most of the time he was speaking, I kept wondering what he was fiddling with in his jacket pocket. Anyone else??]

Having only been a minister for 6 months, McNally wanted to quote the ‘Dick’ Crossman diary (1964) on ministerial duties [roughly, as I couldn’t quite write fast enough!]:

One of the curious features is that one cannot distinguish day from day or night from night

[I think that’s the case with plenty of jobs, to be honest!]

He did say we “should have a Draft Bill in Spring” (which means sometime before June 1st 2011)

Going from the Lords to legislation is a slow process and the importance of “future-proofing” whatever we do was emphasised.

In my notes I then have something about ‘the next parliament March 2012’ – even after reading some Wiki on our parliament, I don’t know what he/I meant by this (please comment if your memory and political/legal understanding is better! This is not difficult to achieve, mind).

McNally implored us to continue:

Don’t stop! … This is the end of the beginning for your campaign

The Draft Bill is a rough outline of what the government will commit to. When it comes out, we may not like phrasing and bits might be missing..!

He then addressed Simon Singh:

My son is 17 and doing Maths, Physics and Chemistry in St. Albans – your ordeal was very rough but you’re a hero to young scientists and have inspired a lot of young people in science

Which, I think, we all very much agree with.

Having read Douglas Hurd‘s paper on communications, focussing on “Quality, Diversity and Choice” – he wants to ensure we have that in our media, unrestricted by the libel laws.

Questions

Q (DAG): Do the activists only come in after bill publication – can’t we input now? [Tom A: wait a bit!] You said ‘hopefully’ there will be a slot in 2011/2012 – does that mean there might not be one? [Tom A: No minister can commit to anything in the preceeding financial year]

Q: Have you considered vulnerable writers (like the disabled) and the use of sensitive/offensive terms – legislating on which are acceptable, and how does one defend one’s reputation? [Tom A: regarding hate crimes, the issue hasn’t come into libel reform yet] – I think the general opinion here was that this was a bit of an irrelevant/off-the-mark question.

Q: (Simon) – Interview in Aus with Questions: regarding homeopathy – threat of London libel. Someone blogged anyway. People someone quoted have asked to be anonymous for fear of libel. [Tom A: Contrasting legal advice: is the Master of Rolls looking?] From the audience: “At every stage…” – some ramble that didn’t mean a lot, from where I was sitting!

Comment: (Síle Lane) – from a Sense About Science survey, of the editors of scientific journals (in all subject areas):

– 32% have been threatened with libel action

44% have asked authors to modify articles

38% have refused to publish due to fear.

Tom A: We’ll try! We can’t go into detail; we need laws to protect science discussion and criticism. Legislation needs to be right, not flawed and open to criticism. Then a comment about public opinion/support that I missed – perhaps, the public generally supports making sure scientific claims & criticisms can’t be silenced by legal threats? I don’t know if there have been any surveys on this.

Q (Evan Harris): A claimant lawyer can make their case (and have it rejected!) –  we need to create a public interest defence; incorporating a ‘threshhold’ of damage caused to reputation (in this country), given what is published abroad. [Tom A: Something about the Lester bill and 2 sides interacting, that I missed. Plus, there’s another chill for people with ‘media intrusion’, who are met with “don’t like it? See you in court”]

Response (Evan): Individuals need to be able to sue. Companies, less so. [A: this must be looked at.]

Comment (Nigel Tait – Carter Ruck (!) ): ‘Please don’t worry about us lawyers!’ – because they’ll keep making money regardless, basically. Which is true.

Q: (Tracey Brown) – Is it a good thing (economically) that London is a litigation centre? There are other ways though;  so that we would not be blocking world discussion, but leading it.

Q: (Matt Flaherty) – The recent Supreme Court case that replaced “fair comment” with “honest comment” – how big a deal is that?

– we didn’t get an answer to Matt’s question, sadly, even though it was arguably the best one (but perhaps we’re just biased ‘cos we love Matt. Still, it’s a shame no one offered a response).

Q: I want to bring up the elephant in the room, or perhaps the country; I’m sympathetic to PA and Facebook but what about people exposing military abuse; will you allow Assange to stay in the UK? – people chuckled at this a bit.

Richard makes a joke and someone says “Assange is not a subject for mirth”.

(Richard): Sorry, World insanity causes me to resort to black humour! When you hear of people ordering assassinations for something the person has said, that’s just insane.

A (Tom): I Can’t answer this! Ask the attorney general. Q: What’s your view of the leaks? Patience! – is all I’ve got in response to that, but I can’t remember if any more was said.

Comment: The burden of proof is not actually biased to the claimant (I had a semi-drunk argument/discussion about this – the unfairness of the law re: the accused who makes the libellous comment – in the old London SitP pub, then about 2 weeks later I bumped into the guy at Westminster Skeptics and he said I was right and he’d been talking rubbish. Always nice to know!).

Q: One of the main reasons for libel tourism is that our lawyers charge 40-50x fees! No one can afford this! Would the lawyers really want to remove this source of income?

A (Joanne Cash): – Yes we will go against our paychecks! “If you need any help, you know where I am!”

Comment (Emily): People ask about the value of science vs. creative works and biographies. Science must be critiqued. Perhaps there should be a seperate – legal, if I recall -category for science?

Audacity! We use that for Superwooduo

Hey, Audacity! We use that for SDWFD(wc)

Personally I don’t think I agree with that. If you start treating science as a really special case, this could potentially damage an already shaky relationship with the layperson. Though evidence-driven criticism is especially vital in science and particularly medicine, I don’t see why such criticism should be actively discouraged (with such great effect as the current libel law has) in any field.

Closing comments

Tracey: When we started, we heard “don’t bother” because: it’s too complicated; you’re small; the government is uninterested.

Remember this is as much about the public right to read as for people to speak. Uncertainty leads to debate and often uncovering the truth.

For example, take the case of Peter Wilmshurst as one that gives a simple perspective (we  want the public to be made aware of things that might be dangerous, rather than people deciding not to speak out to protect others, for fear of losing their house, their job, their livelihood).

When small people say things to power sometimes things happen

I’m sure many of us still like to think that could be true.

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Author: noodlemaz

I prefer to think of myself as a realist rather than a pessimist, but perhaps that's just optimistic. Honest, atheist, scientist, feminist.

5 thoughts on “One Year On: Libel Reform Update

  1. Re ‘the next parliament March 2012′ .. I think Tom McNally said something about the government had fudged the parliamentary rules so that the current parliament “year” would run for two years, into 2012, presumably so that legislation half-finished at the end of the 2010-11 session will not get dropped as usually happens at the end of a parliamentary session. We could possibly hope that this means MPs will work through summer 2011, or at least take only the minimal time off the rest of us enjoy, but I doubt it.

  2. Pingback: Tweets that mention One Year On: Libel Reform Update « Purely a figment of your imagination -- Topsy.com

  3. Many thanks for this remarkably comprehensive round-up of the event.

    Nigel Tait’s comments echoed his response to the campaign launch last year. He was very interested in the idea of fast-track libel tribunals, which would result in more work for lawyers! I thought the tone of his comments this time around was slightly provocative, but his underlying point is correct- it is essential the reforms are well thought out and unrushed, else confusion will ensure.

    One aspect about the campaign I would like to get more discussion is how we expect the country to look after reform. Many supporters of reform like to imply that libel trials will simply disappear in the new era, that the new regime will flawlessly protect free expression. However, I’m not sure that will be the case. Human activity is so varied, and our politics so full of complexity and intrigue, there will always be disputes and free speech conundrums that can only be settled by a judge in a court. A grey area will always exist. The aim of the campaign should not be to eliminate this grey area (which would be a Sisiphean task), but rather to shift that grey area into a space more conducive to free expression. To repeat, there will always be work for the lawyers!

  4. Tracey Brown in her closing comments also made a rather lovely comment, drawing on some of Lord McNally’s words. She said something along the lines of “How wonderful that a minster believes that his legacy is dependent on getting a successful Libel Reform bill passed.”

    Tracey had also asked a question earlier wondering why libel always ended up as an adversarial claim and whether we should in the UK be promoting a mechanism of resolution or dialogue. (I may have misunderstood this).

    Finally I noted that McNally was also quite clear that while he couldn’t give anything away on exactly what form the Bill would take he was keen to stress that all the points that were raised in questions were being given due consideration in the process of drafting the Bill. He told us he couldn’t say anything detailed but I got a strong feeling he really wanted us to read between the lines a bit.

  5. Pingback: Libel Reform update: 3 years on « Purely a figment of your imagination

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