The University of Oxford recent completed a report into the comparative costs of defamation proceedings across Europe. Its conclusions were that the costs of libel proceedings in England and Wales are about 140 times higher on average than those found across Europe. The reasons for this boil down the large number of lawyers that get involved, the length of the proceedings, the adversarial nature of English law, and the take up of Conditional Fee Arrangements (CFAs), “no win no fee”.
The result of this is that the legal costs involved are likely to be hugely disproportionate to any potential damage done. Defending a case of libel, even if the damages only amount to a few thousand pounds, could result in the losing party facing legal bills of six or seven figures.
The specifics of English libel law make the situation even worse. The entry costs to make a libel claim can be very low. Conditional Fee Arrangements allow a lawyer to take on a case where they will only receive payment if they win. And because of the risks involved their fees may well be double that if there were no CFA. There is also a double whammy in that the legal barriers to starting libel proceedings are very low. All the complainant has to do is show that they have some sort of reputation worth defending and that the accused party has made a statement that has defamed them. There is no requirement to show that this statement is untrue or not fair comment. Nor indeed is there indeed any requirement to show that you have suffered any loss.
The effect of this is that English libel law can be easily used to silence criticism. The complaining party essentially has to take no risk of costs and take on no burden to prove their case. The huge risks and burdens of proof are passed almost entirely to the defendant. So what should someone do when faced with a libel claim against you? A game theory approach might suggest that, since you can never be certain of success, no matter how well justified you might believe yourself to be, there can only be downsides by defending yourself and that you should seek to apologise and settle as soon as possible, regardless of the strength of your case. Defendants may well end up having to pay large amounts of money no matter if they win or lose.
This Oxford report talks about how such a situation has serious free speech issues in the British press. Newspapers are heavily dissuaded from defending libel claims, regardless of their merit. This undermines the role of the press and results in self-censorship where articles criticising wealthy or powerful interests may be dropped or watered down. Our libel laws were essentially created to enable the powerful and the elite to preserve their reputations against the tittle-tattle of the press. As the press grew more powerful, CFAs were brought in to allow ordinary people to take on the press when they do not have access to large amounts of money.
In 1995 Lord Woolf, identified three problems with libel law,
a. litigation is so expensive that the majority of the public cannot afford it unless they receive financial assistance;
b. the costs incurred in the course of litigation are out of proportion to the issues involved; and
c. the costs are uncertain in amount so that the parties have difficulty in predicting what their ultimate liability might be if the action is lost.
CFAs were brought into address point a. However, it would appear that they have also exacerbated the other problems. Whilst CFAs have allowed the less powerful to take on the more powerful, they have then, in the conclusion of the report, denied justice to the defending side.
The report suggests that CFAs and the libel law are not compatible with Article 6 – Access to Justice – and Article 10 – Freedom of Expression - of the European Human Rights declaration. It states,
Based on those findings it is therefore reasonable to develop the following hypothesis: The CFA scheme increases access to justice for litigants bringing CFA-based defamation claims while eliminating financial incentives and thereby denying access to justice to media outlets, which leads to an interference with the right to freedom of expression. Such a hypothesis must be considered in terms of the ECHR’s Article 6 regarding the right to access justice and Article 10 regarding freedom of expression.
The huge and disproportionate costs of defending libel, the unpredictability of outcome and the burden of defence have all hit hard upon one of Britain’s best science writers. This week we have seen Simon Singh having been placed in a rather kafkaesque position where he is now unable to defend himself against a libel charge as he has been told he must prove something that he clearly does not believe to be true. Libel law hinges around the defamatory meanings of words and the judge in this case has decided that the word ‘bogus’ can only mean ‘fraudulent’. Due to the strict requirements of the pre-trial hearings, Simon will now not be able to defend what he wrote under any reasonable terms. Simon has made it quite clear, and the article made it clear too, what he meant by ‘bogus’. But he will not be able to put that case forward to the judge because of the humpty dumpty nature of the courtroom.
The British Chiropractic Association brought the charge of defamation against Simon Singh after an article appeared in the Guardian criticising the lack of evidence for many chiropractic practices and how the BCA continue to promote such treatments when the scientific evidence appears to be so low. Of course the BCA may well have some evidence that is not readily available, they may be unaware of the lack of evidence, but the judge has ruled that Simon meant they are being fraudulent in promoting these ‘bogus’ treatments.
Already the BCA have succeeded in that the discussion now going on is about the various meanings of the word ‘bogus’ and not about the effectiveness of chiropractic treatment. If Simon decides to appeal then we could see many more months of wondering what ‘bogus’ means to the man on the street. Costs will escalate rapidly.
With such a blatantly unjust set of laws, those who seek to bring defamation cases against individuals must surely already be on the losing side of morality. The costs for the defendant can only be crippling for the average person. And libel is about reputation, and the clearing of reputations if they have been defamed. Libel laws should not be about exacting revenge, huge cash awards and legal fees, and the silencing of criticism – and that is exactly what they are in the UK. Of course there is a need for defamation laws. But when there are straightforward alternatives to the lumbering and unpredictable giant of the courtroom, then these should be taken. Clarifications, debate, discussions of evidence are still available to the BCA.
And let us remember what this libel claim is about. It is not about claims that some MP or businessman had their fingers in the till. Nor is it about a footballer allegedly seen coming out of a nightclub with someone other than their WAG. This is about a award winning science writer penning a comment piece in a respectable paper about a matter of public health. It is questioning the amount of evidence for an alternative and doubtful practice and highlighting the unspoken dangers of such treatments on children. It is exactly the sort of article that our papers ought to printing and is undoubtedly an important matter of public interest. The central point of the article is that chiropractors promote their trade for children’s ailments, such as asthma, when there is no plausibility that their techniques work, poor evidence that they do, and all with significant risks of harm. That is a charge that a responsible profession would answer.
Simon Singh may well have made an unfortunate choice of words or may well have been unlucky with the trial judge. The article he wrote could have easily been slightly edited to get around the current problems and the substantive criticism he made of the chiropractic trade could have remained. And this highlights how unjust this whole process may be. If the BCA want to clarify that they are not fraudulently promoting treatments and that they believe they work (for whatever reason) then they could have written a letter to the paper. Even better, they could have presented scientific evidence of their efficacy – if it exists. But by pursuing Simon Singh, they are using unjust laws to potentially financially cripple a critic.
Simon will be deciding over the coming days if he wishes to appeal. The logic of current English libel law would suggest he should not. But I know that Simon is a principled man and that the principles involved here are well worth fighting for. The libel law is a serious threat to free speech and it is a serious deterrent to engage in debate where vested interests may wish you to remain quiet. My guess is that in the end this will have to be decided by Europe. The UK government appears to be slow to act. One reason may well be that the main victims of this injustice appear to be the press and correcting this may well not be in the best interests of politicians. One only has to look at the news today to see how the press and MPs are not the cuddliest of friends. Also, so many MPs come from a legal background, and lawyers are the major winner in this mess. However, it is an injustice that effects us all and it may well take a lone and principled campaigner to do something about it. Perhaps Dr Simon Singh is that man.