One would think that libel law would not trouble scientists and science writers. After all, modern science deals with facts, or with propositions expressly stated to not to be facts such as theories and hypotheses. Surely just keeping to the facts, or merely setting out ideas that are up for grabs, should not lead to being confronted with an expensive libel claim?
Recent events suggest that the real situation is very different. Notably the libel case brought by the British Chiropractic Association against the popular science writer Simon Singh which has caused uproar in the scientific community.
The group Sense About Science has now launched a campaign to keep libel laws out of science. Among the illustrious signatories to the group's petition on the subject are Fellows of the Royal Society and the Astronomer Royal. But is it significant that it has also been signed by many working science writers who are simply fed-up with the chilling effect of libel law.
Unfortunately it may take some time for the courts or Parliament to make the much-needed reforms to the law of libel. In the meantime, however, there are a number of steps that science writers can take to protect themselves against possible libel claims. In setting out these steps, it is important to note that the guidance in this article cannot be used as formal legal advice, as each situation needs to be looked at on its merits. That disclaimer apart, there is no reason for a science writer to be an easy target for a threatened libel claim.
What is libel?
In general terms, a libel is a published statement in permanent form by a defendant which will lower the claimant in the eyes of others. Libel differs from slander in that slander is for when the statement is in a transient form. For science writers, the relevant form of defamation is libel.
Libel and reputation
The key to understanding libel is that it is supposedly all about reputation - in the same way trespass is about property. The law exists to protect a reputation from unwarranted intrusions, just as trespass can exist to repel unwanted ramblers from a private estate. The threat to sue for libel is in this way analogous with the upset farmer’s cry of ‘get off my land’.
And, just as presence on a farmer’s field can be legally defended by showing a licence or right-of-way, the writer can defend a libel by justification or fair comment, or (less often) by privilege. But at law the alleged trespasser and alleged defamer both face the legal burden of proving their defences.
Who can bring a libel claim?
Any writer must be clear who can actually sue for libel. A libel claim can in principle be brought at the High Court in London by any living person with a reputation in England and Wales. A claim cannot, however, be brought by an estate of a deceased person. One cannot libel the dead. A libel claim can also, as Simon Singh discovered, be brought by a company as it is a ‘legal person’. However, a claim cannot be brought by a public authority.
A claimant does not even need to be mentioned expressly to be able to bring a claim if it is clear that the libel refers to them. So for example, saying that a particular drug is being promoted dishonestly can still be a libel, even if the promoter is not actually mentioned in the article.
Against this, an idea or body of knowledge cannot be libelled. For a writer to say that chiropractic - or even chiropody - is bogus should not cause any legal concern. However, the level of legal risk increases considerably when natural and legal persons are referred to in the context of such criticism.
Unless there is a good reason to refer either expressly or implicitly to a legal or natural person when being highly critical of either a school of thought or a practice, it is a good idea not to do so.
After all, had Simon Singh (or his sub-editor) referred instead to chiropractic in general promoting bogus treatments, and not referred to the British Chiropractic Association at all, then the latter would have perhaps been rather upset; but it could not have brought a libel case.
What are libellous statements and how can they be avoided?
One should be most careful when describing the motives of a person who can sue. Impugning the motives of a person is the single biggest libel danger. This means that even very hostile pieces are perfectly publishable because the motives of the people involved are not criticised.
To say that a company is promoting ineffective treatments is not necessarily a libel; but to say that it is knowingly or recklessly (or, it seems, even happily) doing so is to convert the allegation into a libel.
Crucially the law treats allegations of motive as factual allegations: it is often said by libel lawyers that a state of a person’s mind is as much a fact as the state of their digestion, even though this may seem nonsense to anyone with any basic science education. And it is an urban myth that just inserting ‘allegedly’ into text makes it libel-proof. Also, don't forget that reporting other people’s libels and slanders can often lead to liability in respect of those reports.
So unless one can defend an allegation of dishonesty or recklessness with solid factual evidence, any such allegation should be avoided, even if it is posited as the view of another person. Here it must also be noted that it is actually difficult to prove conscious dishonesty in the courtroom, as the Serious Fraud Office frequently demonstrates.
The next category of allegations to avoid - unless strictly necessary - goes to the professionalism of a potential claimant.
It will not usually be defamatory to accuse a person of an error of professional judgment. Indeed, lawyers themselves routinely - but always respectfully - suggest their colleagues have erred. Even Law Lords do it in their differing judgments on the very same case.
Potential problems arise where the implication is that the claimant has made a professional mistake so serious that it is negligent or otherwise culpable. This is when the conduct goes beyond what could be an acceptable difference of opinion or approach.
In most situations a simple, common-sense test can be applied by a science writer: will it be likely that a reader will think badly of an identifiable living person or a company? If so, and if giving such an impression really isn’t required, then simply re-word the piece until it is unlikely any reader would have that reaction.
And, insofar as the impression will be of dishonesty, recklessness or lack of professionalism, then make sure you never outpace the supporting evidence.
What to do when critical statements need to be made about potential claimants
When it is necessary to say something that could lead to the threat of a legal claim, then regard has to be made to the standard defences. There are three defences that can be in play for a science writer.
First, a libellous statement of fact can be defended by justification. If one writes that a company’s drug has been withdrawn because of serious safety concerns, or if one writes that a named practitioner has been struck off, then such a serious allegation needs only to be capable of proof.
This is far less easy when the (factual) allegation is that of dishonesty; for short of a confession, a criminal conviction, or similar compelling evidence, defending those allegations will be a struggle.
Second, a libellous expression of opinion can be defended as ‘fair comment’. This generally needs the defendant to show that it was a fair opinion based on the evidence available when the statement was made. However, this defence is not available to a defendant if there is malice or other evidence of ulterior motive.
In practice, strong and strident statements of opinion can be completely defensible. For example, although Ben Goldacre (and The Guardian) faced - and defeated - a lengthy libel action brought by Matthias Rath, the weekly ‘Bad Science’ columns are good models of how to be deeply scathing in making fair comment with little risk of a libel claim.
Third, for serious investigative journalists, there is also the ‘Reynolds defence’. The court will hold as privileged from a libel claim the work of a ‘responsible journalist’ who, for example, only makes serious allegations based on confirmation by multiple sources and after putting the article to the claimant for comment before publication. This is a fairly recent defence and, it must be admitted, has rarely been relied on successfully in practice. Indeed, many consider it to be unrealistic. To anticipate using this defence will usually require very detailed legal advice.
What to do when threatened with a libel action?
As Douglas Adams would say: Don’t Panic.
That said, such threats need to be taken seriously - especially if issued by a lawyer.
The most sensible course is to take legal advice. The least sensible course is to ignore the threat and hope it goes away.
The potential claimant, however, needs to do more that make this threat; indeed, the claimant needs to do more than allege that their reputation is damaged, however badly.
The claimant really needs to state precisely the alleged libel, which passage is in question, and what the alleged defamatory meaning is. Sometimes the potential claimant may actually have a point; and some speedy correction needs to be made.
On the other hand, if it appears that the passage stands up, and is legally defensible, then this can also be communicated firmly and politely to the potential claimant.
It may be that the horrific cost implications of standing by one’s completely defensible piece mean that the rational course of action is to give way and await libel reform. If so, nobody would think the less of you. But a mere threat of libel action need not have this instant chilling effect.
There is a powerful public interest in frank and candid science writing, especially in the fields of public health and public safety. Writing critical pieces referring to those capable of bringing libel actions is certainly risky, but the risks can be managed with sufficient preparation and careful wording. And if a threat ever arises, there are real alternatives to simple alarm.
David Allen Green
Consultant, Preiskel & Co
David Allen Green is a London-based solicitor in the technology, media and communications fields. He also blogs as Jack of Kent.