Libel Reform: Canada vs. the U.K.

Libel chill is an huge concern for advocates of science-based pharmacy and science-based medicine.  It is critically important that there be an open and public debate about the science and evidence informing personal decisions about our health, as well as decisions affecting how we direct resources in our health care system. Unfortunately, some groups seeks to quash debate, rather than engaging in a discussion of evidence. Without the freedom to make open, critical comments about science and the scientific process, we give free reign to those that promote pseudoscience or seek to subvert the scientific process.

As I’ve previously blogged, Simon Singh is currently being sued by the British Chiropractic Association for libel. The British Chiropractic Association could have provided evidence to refute Singh’s comments. But it did not, and turned to legal means to silence criticism of its practices. He is appealing an initial court ruling, and is leading a campaign to reform English libel law.  See his recent update here:

“It has been 18 months since I was sued for libel after publishing my article on chiropractic. I am continuing to fight my case and am prepared to defend my article for another 18 months or more if necessary. The ongoing libel case has been distracting, draining and frustrating, but it has always been heartening to receive so much support, particularly from people who realise that English libel laws need to be reformed in order to allow robust discussion of matters of public interest. Over twenty thousand people signed the statement to Keep Libel Laws out of Science, but now we need you to sign up again and add your name to the new statement.

The new statement is necessary because the campaign for libel reform is stepping up a gear and will be working on much broader base. Sense About Science has joined forces with Index on Censorship and English PEN and their goal is to reach 100,000 or more signatories in order to help politicians appreciate the level of public support for libel reform. We have already met several leading figures from all three main parties and they have all showed signs of interest. Now, however, we need a final push in order to persuade them to commit to libel reform.

Finally, I would like to make three points. First, I will stress again – please take the time to reinforce your support for libel reform by signing up at www.libelreform.org. Second, please spread the word by blogging, twittering, Facebooking and emailing in order to encourage friends, family and colleagues to sign up. Third, for those supporters who live overseas, please also add your name to the petition and encourage others to do the same; unfortunately and embarrassingly, English libel laws impact writers in the rest of the world, but now you can help change those laws by showing your support for libel reform. While I fight in my own libel battle, I hope that you will fight the bigger battle of libel reform.”

English libel law is an international problem, because you can be sued for libel English court for statements you make in Canada, if it appears in print in the UK. And not only are the defence costs prohibitive, the onus is on the defendant to prove they didn’t libel. Consequently, these laws have an impact all over the world. The Libel Reform Campaign is asking for signatures from people all over the world, to illustrate how absurd these laws are. Please consider adding your signature today.

Happily, the news is much much better in Canada for bloggers, skeptics, and advocates for science.

The Supreme Court of Canada

On Tuesday the Supreme Court of Canada released an important decision, which grants a new defence against libel. Termed the “responsible communication” defence, it will significantly enhance libel protection to those that write on matter of public interest. The ruling seems to apply broadly, to journalists and bloggers:

[96] A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”

[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

And what is the defence?

[99] To be protected by the defence of responsible communication, the publication must be on a matter of public interest.

and

A. The publication is on a matter of public interest

and:

B. The publisher was diligent in trying to verify the allegation, having regard to:

(a) the seriousness of the allegation;

(b) the public importance of the matter;

(c) the urgency of the matter;

(d) the status and reliability of the source;

(e) whether the plaintiff’s side of the story was sought and accurately reported;

(f) whether the inclusion of the defamatory statement was justifiable;

(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and

(h) any other relevant circumstances.

Read the analysis from the Globe and Mail here and here. The Toronto Star’s comment is here. For Canadian bloggers, Ian Capstick had the following comments over at his blog, MediaStyle:

Here are a few possible implications in relations to blogging:

1. Freedom of Speech could be bolstered online; many cease and desist letters are combatted daily using “fair use” doctrine in the US; I can see how bloggers (with access to legal help) could push back against libel chill in the same way traditional media will now be able to – the path will be blazed by the traditional media; but expect bloggers to point to precedent once it’s established

2. Bloggers may move forward with more provocative or investigative work; knowing that they have less to fear if they make an error and they are sued for it; a defence exists to defend against judgment

3. Bloggers could feel more emboldened with Supreme Court protection to phone up a subject of a controversial story and ask them to confirm or deny facts;

The bottom line for bloggers seems to be “Blog Responsibly”. The Supremes’ new libel defence says if you make a small mistake – it’s OK – just as long as you really were being responsible and the matter is in the public interest.

Journalists and bloggers acting in good faith now have a checklist to follow. It’s not immunity from acting responsibly, though: If the writing is not in the public interest, or the responsibility standard is not met, libel charges can proceed. Now I’m not a lawyer, and I’ll defer to the experts for their interpretation and guidance. But to someone who has faced legal intimidation simply for writing critical appraisals of published papers, this decision looks reassuring.

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