Parliament is currently looking at creating a new defamation bill.You can now see their report on the issues and much of the evidence submitted to them here.I submitted the paper below to document how a blogger covering controversial subjects concerning public health, policy and the impact of pseudoscience is affected by the current chilling effect of English libel laws.
There are many aspects of this new bill that look likely to shift the balance in the situations I describe below. In particular, the new draft bill requires a test of ‘serious and substantial harm’ to be shown. Public interest defenses are to be strengthened and requirements made that alleged defamatory words be read in the context of the article and not on their own.
I welcome the recognition that costs are a serious issue here. In urging changes to the law, I am not calling for an end of the ability for people in alternative medicine to sue for libel (as many have tried to mis-characterise). It may well be that I get things wrong. I want to ensure there are quick, affordable and sensible ways that people can settle problems. (The first one is a requirement that concerned people write to me with their complaint – something that often does not happen).
There is still much to do. Most importantly, it is vital that the draft bill gets included in the Queen’s Speech. A well balanced libel law that has fast and inexpensive remedies will benefit everyone – with the exception of those who cannot bear scrutiny and wish to silence public debate with intimidation and threats.
The Impact of Libel Laws on Bloggers
1. The following case studies are examples of how current libel laws have personally affected me and my blogging activities.
2. My name is Andy Lewis and since 2006 I have been writing a regular blog at quackometer.net. The subject matter of my blog is an examination of superstitious and pseudoscientific health beliefs (often known as Complementary and Alternative Medicine), the potential harms that such beliefs can hold and the role of authorities and regulators in mitigating such potential harms.
Case 1: The Society of Homeopaths
3. In August 2007, I wrote a blog post entitled The Gentle Art of Homeopathic Killing. The subject of the post was to examine the role of the Society of Homeopaths in regulating its members. A year before, the BBC Newsnight programme had investigated homeopaths in the UK who appeared to be offering dangerous advice to travellers to malarial areas. In particular, there was concern that it was routine for homeopaths to suggest homeopathic sugar pills could protect against serious travellers’ conditions. Despite finding many examples, the Society of Homeopaths did not take any action against its members who were exposed by the programme.
4. I had concluded that despite the Society having a Code of Ethics that prevented its members from acting in certain ways, this code was never upheld and that homeopaths were free to practice as they saw fit. As such, such as code might give false assurance to the public that homeopaths were under appropriate scrutiny when they were not. In order to test this, I examined a particular member’s claims and how they might be breaching the Society’s Code of Ethics. The homeopath concerned was advertising that they could treat childhood asthma in the UK, and had been to Kenya to work at a clinic specializing in the homeopathic treatment of malaria, TB and HIV – activity that I suggested were likely to put lives at risk.
5. The first I knew that there was a problem with this post was on the 4th of October when I was contacted by my web hosts, Netcetera, alerting me that they had received a letter from the solicitors of the Society of Homeopaths (Howes Percival) requesting that they considered my post defamatory and that Netcetera should remove it. Netcetera say they have a policy of first asking the author to ‘come to an agreement’.
6. I immediately wrote an email to Paula Ross, the then Chief Executive of the Society of Homeopaths, asking her to clarify the nature of their complaint and to explain why they viewed the article as defamatory. I wrote “If you could tell me urgently what the wording is that you feel is incorrect, defamatory or not fair comment I will examine it immediately and will ensure a friendly and swift resolution of this matter.”
7. The Society did not reply to me. Instead, Howes Percival wrote to Netcetera again saying that the letter to ask for clarification was “inappropriate” and that all correspondence should go through “the firm”. I was included in the email and this was my first communication from the solicitors. At no point here or subsequently did the Society clarify the nature of its concerns or allow me any possibility to address them. The letter repeated the demand that the ‘material be removed’ and pointed out to Netcetera that Godfrey vs Demon showed that Netcetera would be liable for the material hosted on its sites. The threat was made that if the post was not removed by the 11th then ‘our client will have no option but to take immediate legal action against Netcetera and the Website’.
8. As neither I nor Netcetera were given any chance to address the concerns and, as the alternative was the suspension of my account by Netcetera, I had no option but to remove the material.
9. I was paying Netcetera £10 per month to host the Quackometer and various other sites I had constructed for friends and an elderly persons’ charity.
10. A number of people had heard about my predicament and as soon as they saw my post had been removed, found copies in the Google cache and reposted my article on their own web sites. Within a few days, over 64 copies had been reposted over the web after support from such people as Ben Goldacre from the Guardian and the blog of Professor David Colquhoun FRS.
11. This support, whilst welcome, was also disconcerting as it was very unclear how such multiplication of any alleged libel would be viewed by the courts should the Society wish to pursue me.
12. As of today, the phrase “The Gentle Art of Homeopathic Killing” returns 20,900 hits on Google.
13. The Society of Homeopaths wrote to the Guardian after Goldacre’s article was printed. It is worth quoting the relevant parts as it is the only place where the thinking of the Society is explained:
The Society of Homeopaths took the content of the 2006 BBC Newsnight programme on malaria very seriously and responded via press statements and media interviews promising action if it were required. We contacted the programme makers directly to ask for their evidence that any Society members had given dangerous or misleading advice to members of the public. They were unable to provide a single example. The Society’s professional conduct procedures cannot be invoked without a specific complaint, an alleged offender or any evidence. In these circumstances, The Society was unable to investigate a specific case. Nevertheless, as a further precaution, we reissued our Guidelines on advice for the prevention of malaria and sent a copy to every member within a day of the programme being aired.
The Society instructed lawyers to write to the Internet Service Provider of Dr. Lewis’ website because the content of his site was not merely critical but defamatory of The Society, with the effect that its reputation could have been lowered. Dr Lewis, in his article, stated as fact highly offensive comments about The Society and it is for that reason that The Society decided it had no option but to take action. The very crude abuse posted on various websites and e-mailed to The Society since our action suggests that these bloggers/authors are not people who are interested in a real debate on the basis of either science or the public good but who simply want to attack homeopathy, for the very sake of it.
14. This episode came to an end when I obtained emails from the BBC Newsnight team that came from the Society of Homeopaths showing that the above statements were very misleading. The Society had acknowledged receipts of transcripts of the undercover conversations with their members, including a Fellow of the Society of Homeopaths. It was simply not true that the Society was unable to investigate any cases, and indeed in the Society of Homeopaths Newsletter (Winter 2007) they told their members that ‘the researchers identified three of our members”.
Case 2: Professor Joseph Chikelue Obi FRCAM
15. Joseph Obi, or as he prefers to style himself, Distinguished Provost of RCAM (Royal College of Alternative Medicine) Professor Joseph Chikelue Obi FRCAM(Dublin) FRIPH(UK) FACAM(USA) MICR(UK), used to be a doctor in the UK until he was struck off by the GMC after serious professional misconduct at South Tyneside District Hospital in 2003. He was alleged to have had inappropriate relationships with psychiatric patients, failed to care for patients, and was being investigated by the police for “taking thousands of pounds of a 58 year old woman”.
16. I wrote two blog posts in 2006 about how this was one of the most extreme examples of how people in Alternative Medicine use questionable titles and qualifications to enhance their credibility. Obi is a Professor of an organization that he invented – the Royal College of Alternative Medicine – which in reality is a post box in Dublin. Obi was selling ‘Fellowships’ of the College for many thousands to other people so they too could designate themselves with the letters FRCAM.
17. Once again, the first I knew there was a problem was when Obi sent an email to Netcetera. It contained the threat,
Further to our Previous Warnings , we wish to (once again) remind you that Quackometer.net (which you Host and Register) has still been flagrantly violating our Statutorily Registered Trademarks (and Copyright) – despite Multiple Warnings. Please therefore note that (unless you urgently remedy the situation) you will soon be liable to the Tune of US$10,000,000 (Ten Million Dollars) per day ; effective the 21st of December 2009.
18. It was difficult to see this as anything other than a joke. Merely writing about a trademarked name does not constitute a violation of trademark or copyright. But a few weeks later, Netcetera received much more official looking letter from someone called Tanja Suessenbach,
We advise Professor Dr Obi and the Royal College of Alternative Medicine. We are informed that you host the Quackometer`s website (copy evidence enclosed). Our clients hereby give you formal notice that they are determined to sue you directly for the highly defamatory contents contained on the website should you fail to immediately shut down the website and delete all of the defamatory material relating to the Royal College of Alternative Medicine, Professor Dr Obi and our clients` lawfully registered Trademarks.
In case the defamation continues beyond 12 noon on Monday the 21st of January 2008, we are instructed to hold you fully liable to the tune of £1 Million (One Million Pounds) per day , together with additional punitive damages relating to the many months during which the defamatory material had and has been globally accessible via your server.
Kindly note that Google has already blocked the highly defamatory material from appearing on its search engines in the Republic of Ireland, and is currently in the process of extending the ban to other countries.
Please find enclosed photocopies of the two RCAM Trademarks and a copy letter of Good Standing from the Company Registration Office in Ireland, as well as copies of these highly defamatory articles. Please provide an undertaking that no further reference concerning Professor Dr Obi and/or the Royal College of Alternative Medicine is going to appear anywhere within the Quackometer`s website.
Looking forward to hearing from you.
Tanja Suessenbach LLB, LLM
19. It was apparent that Obi had indeed managed to get Google Ireland to remove links to my site.
20. It was also clear that Suessenbach was not a solicitor, but a ‘legal letter writer’.
21. I wrote to Suessenback asking her to clarify the nature of the complaint. I received no response.
22. Netcetera, meanwhile, had been receiving threatening phone calls telling them that legal proceedings were about to begin and asking me to seek urgent resolution with Obi (which was impossible as no correspondence was being returned) or Netcetera would have no choice but to suspend my account.
23. It is worth noting Netcetera’s view on their predicament:
We do not judge one way or the other as a company as to the veracity of content, although as individuals we have our own thoughts of course.
Unfortunately as far as the law is understandable, a request to take down a site for defamation requires us to do so unless we want to risk ending up in court defending something in which we as a company have no interest. Our policy at present is to pass on such requests to the site owner, and ask them to reconcile any differences with the complainant, perhaps taking off content in the meantime.
24. I took down the articles, but stated I would re-instate them if Obi and Suessenbach continued to refuse to engage with me.
25. Having received no response from Obi or Suessenbach, I reinstated my pages. On the 18th of January 2008, Netcetera suspended the Quackometer website stating I had breached their terms and conditions and citing my account had been “inappropriately used”. The nature of this inappropriateness was not explained to me.
26. Within days, the Quackometer was back online, this time being hosted by Positive Internet. They wrote to me in an email entitled “Your lilly-livered Hosting Company” and offered to host my site for free.
27. One year later, in December 2009, Obi again threatened Positive Internet along similar lines stating that I was violating trademarks. Positive responded to me that “his legal theories sound about as rigorous as his medical ones.” And that was the end of it.
Case 3: The Osteomyologist
28. In April 2008, I wrote about how the ASA had adjudicated against an alternative health practitioner by the name of Robert Delgado at the Optimum Health Centres in North Finchley. My post was substantially about how statutory regulation of practitioners could be sidestepped by changing the name of what you do. Despite it being illegal to call yourself a chiropractor without being registered by the GCC, a number of practitioners sidestep this by calling themselves ‘spinal therapists’ or Osteomyologists.
29. Calling himself Dr Delgado, the Osteomyologist had been found by the ASA to be producing advertisements that lacked substantiation and truthfulness. They also found that in calling himself ‘Dr’ that this was likely to mislead the public into thinking he was a registered medical doctor.
30. Osteomyology is not a genuine medical speciality. It was a term coined in 1992 for chiropractors and osteopaths who refused to be regulated by the then new statutory regulatory framework. Changing the name of what they did removed them from the scope of legislation. My post, entitled Registered Osteomyologist, Robert Delgado, found Guilty by the ASA. So What? highlighted that this left such practitioners with no regulatory framework to protect the public from them in the event of a problem. The ASA may have seen a problem, but they hold no sanction other than telling advertisers not to repeat their claims.
31. I received a letter from a solicitor acting for Delgado stating that they viewed my post as defamatory and that I should remove it immediately. In particular, they stated that as I had used the word ‘guilty’ in my title post that this could imply that Mr Delgado was criminally prosecuted.
32. I replied that I made it quite clear in my article that it was the ASA that had ruled on the complaint and that at no point do I suggest that criminal activity was involved. I asked for details of any other wording that Delgado thought were misleading untrue or inaccurate and that I would be happy to address them. And as a token of good faith that I would immediately change the title of my article to Registered Osteomyologist, Robert Delgado, Gets Knuckles Rapped by the ASA. So What?
33. The solicitor wrote back and failed to answer any of my questions asking for details of the words being complained of. Instead, the threat was repeated that unless the whole post was taken down, legal action would start for substantial damages.
34. After consideration, I felt I had no option but to comply. I felt satisfied to myself that my article was factual and honest opinion, but I had no confidence in how courts would interpret words like ‘guilty’. As the amount of money involved could soon get very high, I felt I had no option but to remove the post.
35. In reforming libel law, I will be looking for changes that allow me to feel confident that an honest, public discussion of controversial areas where there are potential vested interests involved need not expose me to arbitrary legal threats that could financially ruin me. The health of democracy requires ordinary citizens to be able to participate in public debate without fear of capricious and crippling harms.
ISPs and their role in Libel
36. Current interpretation of libel law makes ISPs an easy target and weak link that can easily be attacked should someone wish to remove critical material from the web.
37. ISPs are typically paid a few pounds per month by bloggers and have no incentive to defend their users against claims that might mount to hundreds of thousands of pounds. Even trivial claims might start amounting significant costs should a complainant start legal action.
38. ISPs are treated as if they are publishers of materials rather than being the infrastructure on which the web works. There is no clear hierarchy of responsibility in the digital publishing world. It should not be possible to threaten an ISP unless all reasonable effort has been made in resolving the matter with authors and editors of materials.
39. Requests to ISPs to remove material should be a last resort and the management of an ISP needs to be confident that the request is genuine and has complied with reasonable steps with the author or site owner. Doubt in an ISPs liability will ensure that an ISP will always act to minimise its exposure to risk at the expense of the publisher of the material.
Nature of Libel
40. At present, libel laws are being used simply to remove unfavourable material from the web. The costs involved with defending a claim mean that it is irrational to maintain resistance in the face of such a threat for most people.
41. Those who seek to use libel law should be required to show that significant and serious damage has occurred. However, given that a individual is usually unable to start to defend against a threat given even a small chance of chance of significant losses, the law should be clear that a solicitor cannot act unless they are confident that the claim is not trivial and that comprehensive details of the exact nature of the offending words and the nature of the harm is clearly offered.
42. A blogger should be able to feel confident that a trial cannot proceed unless the complainant has undertaken appropriate pre-trial protocols in attempt to resolve the dispute before a trial can start. This would help to remove the Damoclesian threat that is at the centre of the chilling effect of current libel law. Such a protocol would ensure that there is a duty to contact the authors of the material in preference to any other party that may be involved in the chain of publication, that the nature of the complaint is made clear and that simple and fast remedies are offered that do not involve attempts to silence beyond the scope of the complaint.
43. Authors should be able to feel confident that they have a right to fair comment regarding matters such as public safety, public health, science, policy and politics. The free expression of debate regarding public interest should weigh substantially against any particular reputation, especially if that is a commercial reputation.
44. Authors should also be able to feel confident that arbitrary definitions or usages of words cannot detract from comment that is substantially true.
http://qako.me/kl01zD “Malaria advice ‘risks lives’”, By Meirion Jones, BBC Newsnight
http://qako.me/kcAlFb Ben Goldacre’s Blog: Appendix: Andy’s incredibly polite email to the Society of Homeopaths
http://www.guardian.co.uk/science/2007/oct/20/homeopathy Threats – the homeopathic panacea
http://www.dcscience.net/?p=171 Society of Homeopaths: cowards and bullies
http://qako.me/tertruthmatters The Society of Homeopaths: Truth Matters
http://qako.me/ltxZDE ASA Adjudication on Optimum Health Centres
http://qako.me/jK2HsO The Times: Back off: Handle with care