The journalist, the tourist, the claim and their lawyers: libel reform – Part 2

The campaign

Go off and sign your name to the petition if you haven’t already.  They do, basically, have a point.

Recent coverage

Simon Singh’s Court of Appeal case is coming up next week (23 February 2010).  There has been some print media coverage of the various issues recently, which is worth a brief consideration.  In particular Nick Cohen had quite a bit to say in the Guardian about a speech by Lord Hoffman (a now retired law lord), which you can find here.  The first thing to note about Lord Hoffman is that he is a completely brilliant man.  He has a brain the size of a planet and, speaking as someone who spends quite a lot of time trying hard to Understand The Law, is very very good at explaining complicated concepts in a way that even I can understand.  The second point is that he is notoriously fiercely independent (as many extremely intelligent people are), unafraid of defying the government and – please note this – a liberal.  In particular, he has consistently refused to lend any legitimacy to any form of torture.  He was part of the House of Lords committee who said that General Pinochet had to be extradited to Spain to face trial there.  And that decision was set aside (by different judges) because he had failed to declare that he was a chairman and director of Amnesty International’s charity arm.  He is very very far from being an establishment stooge.

I urge you all to go and read Lord Hoffman’s speech.  He makes a number of the points I have made in Part 1 of this post (and let me tell you, it is quite something to be saying that Lord Hoffman agrees with me, rather than the other way round).  He points out various facts about Dr Ehrenfeld’s political sympathies and the holes in her claims (as recorded by Mr Justice Eady in his judgment:  see Part 1).  His point is that when you are considering reforming the law, you have to test your reform by assuming in turn both that the claimant is right, and that the claimant is wrong.  The principles of the law have to reach a just result, using a just procedure, without assuming one side is right and for all kinds of different factual situations.  It’s no good having a law which ensures that the defendant to a libel action always gets off, in circumstances where that defendant has, for example, wrongly and publicly called the claimant a paedophile.

Nick Cohen deals with this not by engaging Lord Hoffman on the point he is making, but by doing four things.  First, he pretends that Lord Hoffman cannot have an independent view.  This is just silly.  Second, he refers to some irrelevant background information about Mahfouz (irrelevant because the libel action was about allegations that he funds terrorism, not that he misstated the financial position of BCCI:  that is, Mr Cohen is setting up a straw man).  Third, he appears to suggest that Lord Hoffman is anti-Semitic or at the very least anti-Israel (see the seventh paragraph).  Lord Hoffman happens to be Jewish.  Fourth, he cites various examples said to be of “libel tourism” which, for the reasons set out in Part 1, don’t prove anything at all.  He goes on to say that the rallying point for English liberals is the libel action by the BCA against Simon Singh – but that, of course, has nothing at all to do with libel tourism!

The latest edition of Private Eye (which I love and to which, for the avoidance of doubt, I have been a subscriber since the age of 16) has a reference to Lord Hoffman’s speech.  I’ll put a link up to a copy of it as soon as I work out how (sorry:  v poor nerd knowledge).  Private Eye comment in their usual gleeful tone that Mr Justice Eady was the only practising libel judge not present at Lord Hoffman’s speech.  They suggest that this might be because Lord Hoffman overturned one of Eady J’s decisions in a previous case, saying in trenchant terms that the decision was unsustainable and wrong.  Well, perhaps.  Or it might have been because he felt a bit shy at listening to what Lord Hoffman actually did say during the speech:

Comments such as these were accompanied by a good deal of disgraceful personal abuse of Mr Justice Eady.

Or maybe he just had something else on that night.

I really would greatly prefer it if the print media would stick to attacking things that actually need to be attacked.  There are some serious issues relating to libel law (not just English libel law) which do need reform.  Most aspects of libel law itself are, however, perfectly fine.

Burden of proof

Jack of Kent has explained with his usual clarity what the law is and why here.

I don’t think this is in any way a straightforward issue, but on balance I think the law should be changed so that the claimant has to establish that the statement is false.

Public interest defence

One of the really weird things about the campaign being run by Index on Censorship and English PEN is that they seem to think that there is no public interest defence in English law.  Essentially, the idea is that is would be a defence to a libel action to say something that turned out to be wrong, if you had taken care to check your point so far as possible and if it was generally important that such topics were freely discussed.

The thing is, there is.

And it’s been around for a while.  A defence of honest comment on matters of public interest has been a part of English law since at least 1863.  You shouldn’t be surprised by this – the English courts have been protecting freedom of speech since long, long before any of the modern human rights treaties.  As Lord Goff (another utterly brilliant lawyer) said in the Spycatcher litigation (pg 30 of the House of Lords’ judgment here):

I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.

The public interest defence extended in certain circumstances to factual assertions: where discussion was desirable “for the common convenience and welfare of society” or “right in the interests of society.”  I am quoting from decisions dating from the 1800s ((1834) 1 CM&R 181 and (1870) LR 5 QB 608 if you’re really keen).  The key case for our purposes, however, is Reynolds v Times Newspapers (in 1999) which established what is known as the Reynolds defence.  The importance of Reynolds was that it confirmed that factually inaccurate statements (as well as comments) could be defended on grounds of public interest.

You can read about Reynolds on Wikipedia (so there’s not really any excuse for misleading campaigning about it).  You can read the actual House of Lords’ judgment here.  The House of Lords set out 10 factors which would be relevant to determining whether the public interest was made out in any particular case (they’re in the Wiki article if you can’t be arsed trawling through the judgment).  Lord Nicholls concluded by saying:

In general, a  newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.

The decision in Reynolds was applied again and approved in a subsequent House of Lords case called Jameel v Wall Street Journal (in 2006).  You can read the judgment here.  Lord Hoffman (yes, the very same) said that Lord Nicholls’ “ten tests” were to be used as guidance, not as hurdles.  That is, Jameel made is easier for a defendant to establish that his comments, including factual statements, were in the public interest.

This defence would have been available to Dr Ehrenfeld if she had chosen to defend the Mahfouz libel action.  It is also available to Simon Singh.  I assume he will run it in the event (which hopefully will not occur) that his appeal does not succeed.

The Real Problem

The real problem with libel cases in the English courts is not the law of libel.  It is the cost of defending such an action and the fact that even if you win and in principle obtain an order from the court that they have to pay your costs of the action, you will never get 100% of those costs.  Successful parties to litigation usually recover about 75% of their legal costs from the losing side.  This means that you are never, I repeat never, a complete winner in any case.  There is always a hole in your pocket at the end of the day.  (I tell all my clients this.  You would be amazed, just amazed, at how many want to carry on anyway.  Litigation is a fool’s game to be avoided if at all possible.)

This is the problem Ben Goldacre is talking about here.  Matthias Rath sued the Guardian over statements made in Ben Goldacre’s Bad Science column, then dropped his case as it was total utter shite (a legal term), so the Guardian was the out and out winner.  But it was still left with a £170k hole.

This really does have a massively chilling effect on freedom of speech.  It is no good having the Reynolds defence available to you if even when you win you have still had to sell your house to pay the lawyers.

So why are libel actions so expensive?  Is it just because evil lawyers are milking these claims for everything they can get?  Or what?

The answer is… a bit complicated.  And the solution is not as clear cut as you might expect.  To be discussed in Part 3…

Full judgment of the GMC on Wakefield

You can find the full text of the judgment here.

Tell everyone you know:

“Dishonest.  “Misleading.”  “Dishonest.”  “Irresponsible.”   Ordered numerous invasive procedures (including colonoscopies and lumbar punctures) which were “contrary to the clinical interests of Child 2.”   Same for Child 1.  Same for Children 3, 4, 9, 5, 12, 8 and 7.    Lied about this to the Ethics Committee even though not qualified to determine whether in fact in the relevant child’s clinical interests (see pages 20 – 21 and frequently thereafter).  “Contrary to the clinical interests of Child 10,” he gave Child 10 an experimental drug, for “experimental reasons”, called Transfer Factor.  He part owned the company which owned Transfer Factor.  The dosing with Transfer Factor was not recorded in Child 10’s medical records.

Page 45:

“In reaching its decision, the Panel notes that the project reported in the Lancet paper was established with the purpose to investigate a postulated new syndrome and yet the Lancet paper did not describe this fact at all. Because you drafted and wrote the final version of the paper, and omitted correct information about the purpose of the study or the patient population, the Panel is satisfied that your conduct was irresponsible and dishonest.

The Panel is satisfied that your conduct at paragraph 32.a would be considered by ordinary standards of reasonable and honest people to be dishonest.”

He “showed a callous disregard for the distress and pain” which the children from whom he caused blood to be taken might have suffered.  Blood taken at his son’s birthday party.  He paid them £5.

Note – the GMC applies the criminal (proof beyond reasonable doubt) not the civil (more likely than not) standard of proof.  That is, any doubt, and the allegation is not proved.

What a scandal.   And still the anti-vaxxers campaign…

In defence of Mr Justice Eady

Most people have heard about the libel action against Simon Singh being brought by the British Chiropractic Association.  In brief, Simon Singh wrote an article in the Guardian discussing chiropracty, in which he said,

“You might think that modern chiropractors restrict themselves to treating back problems, but in fact some still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station.  The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”

The BCA sued for libel (the sentences they say are libellous are in bold).

There are defences to such a claim.  One is justification:  if you made a statement of fact, you can prove that what you said is true.  A true statement cannot be a libel.  Another is fair comment:  if what you said is comment, or opinion, then you have to prove that it was fair.  Basically that means you have to show you had good grounds for saying it (but not that it was true – obviously, an opinion is only an opinion, it can’t be true or false).  You can see it’s a bit easier to defend a comment than a statement of fact.

So a judge hearing a libel case has to decide whether the relevant words were a statement of fact or a comment.  Before he can do that, he has to decide what those words actually meant (so that he can go to decide whether that meaning was true, or fair comment, whichever applies).

In the BCA v Singh case, there was a preliminary hearing on 7 May 2009 in which the Judge in charge of the case, Mr Justice Eady, decided the use of the word “bogus” meant that Mr Singh was saying that the BCA “knowingly” promotes bogus treatments.  He also went on to find that this was a statement of fact, not comment.  The full text of the judgment is recorded here.  If right, this would mean that at the final trial, Mr Singh would have to prove that it was factually correct that the BCA deliberately (as opposed to carelessly) put forward treatments which they knew did not work.  Obviously, this would be near impossible.

The judgment attracted a firestorm of criticism of the BCA for suing, and the wholesale demolition of the now infamous “plethora” of evidence which the BCA adduced in support of the claimed efficacy of chiropractic for colic, etc:  see for example Ben Goldacre’s summary here, Jack of Kent’s brilliant posts on the subject herehere and here and the editor of British Medical Journal here.  It has also become the cause celebre which is spearheading a campaign for the reform of UK libel laws, in the course of which Mr Justice Eady has come in for some pretty stringent criticism.

Mr Singh has now got permission to appeal from the Court of Appeal (on 14 October 2009).  You can read Lord Justice Laws’ (I know, I know) short but pithy judgment giving permission to appeal here.  The Court of Appeal is apparently going to be constituted of the Lord Chief Justice, the Master of the Rolls and the frighteningly intelligent Lord Justice Sedley.  I think Mr Singh is likely to win, at least on the issue of the meaning of “bogus.”  It seems clear that the true meaning of Mr Singh’s remark was that the treatments themselves were bogus, not the promotion of them.  This is particularly so when the sentence is taken in the context of the following paragraph.

This will be a very good result.  I am in complete agreement with the comments made by the “Bad Science” bloggers as to both the fact that Mr Justice Eady got the point wrong and as to the serious undesirability of defamation actions being used to stifle scientific debate.

The case and the criticisms of the Judge have received a lot of attention is some quite surprising quarters.  The papers have been all over it, and not just the broadsheets.  See for example this article in The Mail and this article in the Times (and Mr Dacre’s article discussed below).  Notice that Mr Justice Eady comes in for some personal criticism.  Now you may wonder why the newspapers, and the tabloids in particular, are bothering to try to explain to their readers about why chiropractors have got it wrong and are generally campaigning to help Simon Singh.  Especially when they are, generally speaking, promoters of woo and general health/anti-vaxxer nonsense.

The answer is that Eady J’s (wrong) decision in the Singh case has come to be conflated with issues of “libel tourism” and, most importantly, with issues of privacy.  This is because Mr Justice Eady is the leading defamation and privacy judge in the UK.  He is frequently allocated to those cases because when he was a practising barrister he specialised in media law at one of the top barristers’ Chambers in the country (so he might be thought to know what he’s talking about).  The newspapers, in particular the tabloids, are interested in rulings on these topics because they want to print stories about footballers shagging strippers, or about MPs being homosexual, or about any leading figure engaging in any (almost always) sexual activity that they can get all prurient about.  They want to print these stories because they sell papers.

Mr Justice Eady’s decisions in various previous cases have stopped some of these types of stories being printed, or have awarded damages against various newspapers for libel or for invasion of privacy.

Before going on, I just need to explain the difference between defamation and invasion of privacy.  You defame someone (libel if you do it in writing, slander if you do it orally) essentially if you say something about them which cannot be justified or is not fair comment, and which causes damage to their reputation.  In the UK, you sue for invasion of privacy under the heading of an old legal principle called breach of confidence, as amplified by the Hunan Rights Act 1998 which makes the European Convention on Human Rights law in this country.  It is now established that your Article 8 Convention right to privacy is protected by the breach of confidence claim:  you are entitled to keep information in respect of which you have “a reasonable expectation of privacy” private, and you can claim damages against anyone who publishes it.  The main defence to such a claim is that the disclosure was in the public interest.

It should be obvious that what the law is trying to do is to maintain a balance between the obviously right principle of a free press and the importance of freedom of speech, and the also obviously right principle that a person (even a celebrity) should not have to suffer every detail of their lives printed in the press for us to gossip about – we might like it, but that doesn’t make it right.  It’s not possible to lay down a bright line rule – every case has to be looked at on its own facts to decide where the balance lies.

One of the best examples of this sort of case is Mosley v News Group Newspapers Limited.  The specific paper in question was the News of the World.  News Group is the defendant because it is the owner of the Screws (and The Times, The Sun and the Sunday Times).  Mr Justice Eady decided this case.  His judgment, which you can read in full here, is totally, totally brilliant.

Max Mosley was the president of the FIA (ie he was in charge of Formula 1 motor racing).  He is also the son of Oswald Mosley. The News of the World published two very nasty stories about him, with photos (obtained by using a concealed video camera.  They put the video on the website).  The headlines were “F1 BOSS HAS SICK NAZI ORGY WITH 5 HOOKERS” and “EX MOSLEY HOOKER TELLS ALL:  MY NAZI ORGY WITH F1 BOSS.”  The News of the Screws alleged that Mr Mosley had participated in group sex, had participated in S&M and, as you can see from the headlines, that the event had included a Nazi theme including Nazi- or concentration camp-based role play.

Mr Mosley did not sue for libel.  He sued for breach of confidence.  The Screws said that there was a public interest defence, because if a public person in charge of a large organisation (also likely to be an employer of Jewish people) such as Mr Mosley had Nazi sympathies, the public were entitled to know.  There wasn’t really any dispute about this.  The argument was about whether the events on the video really did have a Nazi theme.

The newspaper relied on 10 key points which they said demonstrated this.  You will have to read the judgment itself to appreciate the full scale demolition of these arguments and the total, hilarious, inevitable collapse of the Screws’ case.  I’ve only got time for one here.  Point 7 was “He is shaved – just like the Jews.”  But as Mr Justice Eady says at paragraph 53:

“[The Screws’ barrister] also relied upon the fact that [Mr Mosley] was “shaved.”  Concentration camp inmates were also shaved.  Yet, as [Mosley’s barrister] pointed out, they had their heads shaved.  [Mr Mosley], for reasons best known to himself, enjoyed having his bottom shaved – apparently for its own sake rather than because of any supposed Nazi connotation.  He explained to me that while this service was being performed he was (no doubt unwisely) “shaking with laughter.”  I naturally could not check from the DVD, as it was not his face that was on display.”

The News of World simply invented the Nazi allegation in order to spice up their story about Max Mosley engaging in standard kink with other consenting adults, in private.  They were probably advised by their lawyers that in the absence of the Nazi stuff, there were simply no grounds for printing the stories – other than their desire to make money by capitalising on people’s unfortunate fascination with gossip about sex.  The Judge concluded,

“[These matters]… seem to me, however, to be marginal and in no way to support the Defendant’s primary case that the events of 28 March involved Nazi role-play – still less (as was originally the [Screws’] case that [Mr Mosley] had specifically ordered a Nazi or concentration camp scenario.  It is fair to record also that I found no evidence at all of his “mocking the humiliating way Jews were treatd.”  Yet, for many people, that must have been one of the most shocking and memorable of the “exclusive” revelations.  It was not surprising that the Holocaust Centre should have responded that his conduct (as described in the newspaper) was an “insult to millions of victims, survivors and their families.”  No doubt others felt the same.”

The papers, however, hated it.  They presented the judgment as a full scale attack on freedom of speech.  Paul Dacre, the editor of the Daily Mail, had this to say in his keynote speech to the Society of Editors on 9 November 2008 as recorded in the Guardian (read full article here):

“This law is not coming from parliament – no, that would smack of democracy – but from the arrogant and amoral judgments – words I use very deliberately – of one man. Justice David Eady has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places.

Recently, the same judge in effect ruled that it is perfectly acceptable for the multimillionaire head of a multibillion sport that is followed by countless young people to pay five women £2,500 to take part in acts of unimaginable sexual depravity with him. He found for Max Mosley because he had not engaged in a “sick Nazi orgy” as the News of the World claimed, though for the life of me that seems an almost surreally pedantic logic as some of the participants were dressed in military-style uniform.

Now most people would consider such activities to be perverted, depraved, the very abrogation of civilised behaviour of which the law is supposed to be the safeguard. Not Eady. To him such behaviour was merely “unconventional”. Nor, in his mind, was there anything wrong in a man of such wealth using his money to exploit women in this way. But what is most worrying about Eady’s decisions is that he is ruling that – when it comes to morality – the law in Britain is now in effect neutral, which is why I accuse him, in his judgments, of being “amoral”. But most worrying is that when it comes to suppressing media freedom, the good Eady is seemingly ubiquitous.”

You will see that Mr Dacre does not hesitate to misrepresent the nature of the findings by the Judge.  He also misrepresents the position of the women in question:  four of them gave evidence on behalf of Mr Mosley at the trial as to their willing participation in and enjoyment of the S&M scene and their friendship with Mr Mosley, including evidence of arranging a similar party as a birthday present for him (see paragraphs 106 and 107 of the judgment).  The fifth woman was the person who sold the story to the Screws.  He’s got the military uniform bit wrong, too.  Mr Dacre further does not mention the Screws’ editor’s attempts to blackmail the four women into selling their side of the story by threatening to publish photographs revealing their identity unless they co-operated:  see paragraphs 79 to 97 of the judgment.

Most importantly, he misrepresents the nature of the case and the nature of the law.  The law of privacy and the law of libel are not about “morality” in the sense that Mr Dacre is using the word.  It is nonsensical to say that the law ought to come from Parliament – the common law relating to libel and privacy already exists and Eady J is obliged to apply it.  Neither he nor any other judge can apply any other rules unless and until Parliament passes a new Act.  It is not Eady J’s fault if this has not been done (even assuming that it needs to be done).  And if the law is morally neutral (as one would hope it would be), neither Eady J nor any other judge can do anything about that, either:  see paragraphs 124 to 134 of the judgment.

This also deals with the “libel tourism” point.  It may or may not be right that foreigners can sometimes sue in this country for a libel that would not be actionable in their own country.  But while the law of this land permits it, Eady J and all other judges are obliged to hear and to determine libel tourism cases.  It’s just not up to them.

Another of Eady J’s recent cases deserves a mention.  This one is called Metropolitan International Schools Ltd v Designtechnica UK Ltd.  You can read the full judgment here.  It is about whether Google is liable as a publisher of defamatory information which can be found on websites to which it provides links (you can only be liable if you are either the author or the publisher of the defamatory remark).  This was a new point.  Eady J decided that Google was not a publisher and therefore could not be liable in defamation.  Quite good for freedom of speech, no?

In short, what I want to say is this.

The reason that the newspapers, and in particular the tabloids, are on Simon Singh’s side is not because they give a toss about evidence based medicine, or the stifling of academic and scientific debate using the threat of litigation, or the fact that Eady J’s decision as to the meaning of the word “bogus” is definitely wrong.  They are happy to jump on any bandwagon involving Eady-bashing, because it suits their agenda to include this particular mistake in their campaign to be allowed to publish any slimy little story they want – under the banner of freedom of speech.

It is necessary to be careful of your bedfellows, even in a righteous cause.