Libel protections for peer reviewed journals

May 17, 2012 1:33 PM

Britain is considering legislation to protect scientific publications in peer reviewed journals from libel lawsuits, such as the Chiropractic Association's lawsuit against Simon Singh.

There are older articles on Singh's case in Nature and the NYT. There are other interesting examples of Britain's exceptionally plaintiff friendly libel laws include the Trafigura and Hempel cases and the super-injunctions articles under the libel tag.

posted by jeffburdges (24 comments total)

Isn't this superfluous given that English Common Law already demands that for libel to be found, the statements made must be factually untrue?

A peer-reviewed scientific paper, because it's reviewed by experts, is supposed to be factual, but I guess that is no guarantee that is - and if a published article contains false information that is used to defame someone why should the publishers and authors receive a pass?

Singh BTW was sued for an opinion piece he published in the Guardian which is rather quite obviously not a scientific journal.
posted by three blind mice at 1:59 PM on May 17, 2012 [3 favorites]

It's ok, we can still punish and threaten pesky scientists using the massive overreach of modern "copyright" laws.
posted by -harlequin- at 2:01 PM on May 17, 2012 [2 favorites]

I'm convinced that Britain's libel laws are a pure expression of upper-class privilege, designed to prevent the masses from learning of the indiscretions of the gentry. Perhaps a Brit can confirm or deny my impression.

Whatever their origins, they have proven to be deeply antithetical to free inquiry and public debate. They're long overdue for reform. Other jurisidictions should long ago have passed laws refusing to enforce British libel law judgments.
posted by Dasein at 2:01 PM on May 17, 2012 [15 favorites]

Isn't this superfluous given that English Common Law already demands that for libel to be found, the statements made must be factually untrue?

Yes, but the burden of proof rests with the defendant. In other words, the person accused of libel has to actively spend money in order to prove that his claims are true, rather than the reverse.
posted by Nomyte at 2:04 PM on May 17, 2012 [5 favorites]

Why not just reverse the burden of proof in all defamation suits, like almost the entire rest of the civilized world has done? All it would take is a single act of parliament. A single paragraph would cover it.
posted by 1adam12 at 2:11 PM on May 17, 2012

Crikey, we almost got something right. makes a fucking change.

Also, what Daesin said above is so right.

"Research by Oxford University has shown that libel cases in England and Wales are 140 times more expensive than their counterparts in Europe and costs can run into the millions. The 2010 Jackson Review identified that the average cost for the twenty most expensive trials was over £750,000, whilst the most expensive libel action in England and Wales cost in excess of three million pounds. "

From Here [pdf].

Add to that all those injunctions and superinjunctions that have been taken out...
posted by marienbad at 2:19 PM on May 17, 2012

I'm convinced that Britain's libel laws are a pure expression of upper-class privilege, designed to prevent the masses from learning of the indiscretions of the gentry. Perhaps a Brit can confirm or deny my impression.

To an extent, they date back to the invention of the printing press and its use by rabble rousing Puritan scum to produce anti-royalist propaganda. After they had their go at running the country, they were run out of the country and many moved to the new world.

Obviously the Singh case was preposterous, but there's something to be said for avoiding the American approach where you can impugn someone's reputation in print without (in practice) any consequences. What was unusual in this case was suing Simon Singh personally, rather than the Guardian, and that really galvanised public opinion.
posted by atrazine at 2:20 PM on May 17, 2012 [1 favorite]

a pure expression of upper-class privilege, designed to prevent the masses from learning of the indiscretions of the gentry. Perhaps a Brit can confirm or deny my impression.

If so then the existing laws do not work. Have you seen what they write about the British royal family?
posted by three blind mice at 2:29 PM on May 17, 2012

a pure expression of upper-class privilege, designed to prevent the masses from learning of the indiscretions of the gentry.

And reforms from the Conservative government will make sure it stays that way.
posted by TheAlarminglySwollenFinger at 2:45 PM on May 17, 2012

Hey Britain! 18th-century America called! It wants its' amendment back!
posted by anewnadir at 2:53 PM on May 17, 2012

"Research by Oxford University has shown that libel cases in England and Wales are 140 times more expensive than their counterparts in Europe and costs can run into the millions. The 2010 Jackson Review identified that the average cost for the twenty most expensive trials was over £750,000, whilst the most expensive libel action in England and Wales cost in excess of three million pounds."

That may be so, but my first thought was that a large number of libel cases in England and Wales are against / between newspapers and other media organisations, who are quick to accuse, loathe to back down even when they're wrong, and will happily throw a lot of money around to 'protect' themselves. So I chased up the main source of the quoted claim, and had a quick skim.

Apart from a general ambiguity in their methods (OK, it's not a rigorous peer-reviewed paper, just a study), the one thing that struck me is this: although their methodology for choosing comparative countries seems fair enough on the face of it, it ends up suffering from one huge problem. In England and Wales, libel cases are decided by a full jury trial. In the majority of European countries compared, libel cases are decided by a judge or panel of judges, and many have quite low fixed maximum judgements. Essentially, they're comparing apples and oranges; those two things alone are going to make a huge difference to the number, length, result, and costs of libel cases.
posted by Pinback at 3:02 PM on May 17, 2012

So basicaly you don't think the libel law (or even law generally) is there to protect the rich and powerful? Really? Ever heard of Carter-fuck?
posted by marienbad at 3:24 PM on May 17, 2012 [2 favorites]

To be fair, Pinback, that's because the majority of civil law countries either don't use jury trials, orr else only use them for serious crimes and in a limited capacity. The jury trial as used in the common law system is, I'm told by my civil law colleagues, viewed as a horrendous and unjust way to decide cases. And since most of the world is civil law or at least influenced by it, that pretty much forecloses the direct comparison you're after. That's like saying fuel efficiency comparisons between big American SUVs and Japanese kei cars aren't fair because the car's weight, and not just the engine, impacts economy as well.
posted by 1adam12 at 3:30 PM on May 17, 2012 [1 favorite]

Agreed, and I wasn't particularly after a direct comparison. It just struck me that, even though the comparison might be the best one available, it's still an extremely flawed comparison, and the specific structural differences in the handling of libel cases - not the differences in legal approach - are much more likely to explain the differences in costs and awards. That's something that the quote, and the PDF it was taken from, pretty much ignores.

I'm also curious to see if people would prefer the European approach - non-jury trial, capped damages - over either the English or American approach.
posted by Pinback at 3:49 PM on May 17, 2012

Why not just reverse the burden of proof in all defamation suits, like almost the entire rest of the civilized world has done? All it would take is a single act of parliament. A single paragraph would cover it.

I'm not sure it's true of the "entire" civilized world. "The Girl With the Dragon Tattoo" seems to imply that Sweden has a UK style libel law.

Anyway, if they reversed the burden of proof, then they wouldn't have their nice upper-class protection system!

If so then the existing laws do not work. Have you seen what they write about the British royal family?

The royal family does does use media censorship from time to time
posted by delmoi at 5:11 PM on May 17, 2012

Obviously the Singh case was preposterous, but there's something to be said for avoiding the American approach where you can impugn someone's reputation in print without (in practice) any consequences.

And that thing that is to be said is...?

I can understand if you're reluctant to say anything.
posted by ChurchHatesTucker at 6:36 PM on May 17, 2012

[...] there's something to be said for avoiding the American approach where you can impugn someone's reputation in print without (in practice) any consequences.

I am an adult, let me hear all sides of the story and make up my own mind. Don't try to protect me with laws that stifle free speech.
posted by Triplanetary at 8:46 PM on May 17, 2012

There are both good and bad flavors to privacy, but they're shockingly easy to distinguish longterm. In essence, all good privacy traces to fairly powerless individuals and all bad privacy traces to powerful organizations or exceptionally powerful individuals.

Are entertainment celebrities powerful people? No, they are distractions, ignore them, but don't protect them either. Are politicians powerful people? Yes, publish everything about their personal lives, all their interaction with other human beings, etc. Are publicly traded companies powerful? Yes enough, publish all their internal discussions, financial transactions, etc. Scientists? We've got a fairly workable method for that.

I've argued that "Britain's libel laws are pure expression of upper-class privilege" previously, really nothing else makes any sense, common law roles that way.
posted by jeffburdges at 9:50 PM on May 17, 2012

Point of order: This is about the English (and Welsh) law of libel. Scotland does not have a law of libel; the equivalent in Scotland is defamation, which is an entirely different beast.

Folks who are minded to sue for reputational damage in the British Isles tend to pick the English courts and avoid the Scottish ones like the plague. (This is because a successful defamation case in Scotland generally needs to prove malicious intent on the part of the defendant.)
posted by cstross at 3:03 AM on May 18, 2012 [1 favorite]

there's something to be said for avoiding the American approach where you can impugn someone's reputation in print without (in practice) any consequences

Except the consequence that nobody believes what gets printed in America anymore. But this isn't limited to the American approach to libel, I'm afraid.
posted by Vetinari at 5:02 AM on May 18, 2012

I'm convinced that Britain's libel laws are a pure expression of upper-class privilege, designed to prevent the masses from learning of the indiscretions of the gentry. Perhaps a Brit can confirm or deny my impression.

You have confused the libel law with the super injunction. Libel comes after the information is public. The super injunction punishes anyone who makes material public (excluding parliamentarians which has led to some amusing and sometime dickish deliberate disclosures).

But yes, in England you had best get out of the way when the gentry ride their carriage through town.
posted by srboisvert at 7:13 AM on May 18, 2012

Oh and in England you threaten scientists using the REF, massively increased class sizes and ridiculously Vogon administrative requirements. Libel is so far down the list of concerns it doesn't even rate.
posted by srboisvert at 7:16 AM on May 18, 2012

I'm convinced that Britain's libel laws are a pure expression of upper-class privilege,

Yes, but...

designed to prevent the masses from learning of the indiscretions of the gentry.

No. Not really.

In the pre- and early-modern period, there were two types of people: the gentry, and everyone else. If you were "gentle," you were considered to be of a different moral character than if you were not. Yes, there was some inequality between the genders, but a gentlewoman would pretty much always prevail over a common man, regardless of the dispute or controversy.

Being "gentle" meant a number of things, but being honorable figured pretty highly. We're talking about a system where verification for truth claims was made on the basis of oaths, and where being "forsworn" had enormous social and financial consequences. Really. The gentry were mostly landed aristocracy, and their income was derived almost entirely from agricultural rents. This meant they got paid once or twice a year. The rest of the time, they had to live on credit, and one's financial credit was inextricably tied with one's credibility to the point that they were almost one and the same thing. One's trustworthiness in matters of honor determined one's ability to access the credit market far more than one's financial outlook did.

So, when someone said something that cast one's reputation into doubt, a response was absolutely called for. To permit another person to disparage one's honor without gaining some kind of satisfaction was essentially admitting the truth of the allegations, with all the consequences that carried. This is why gentlemen fought duels.

But duels were only fought between gentlemen. A gentleman would not offer to fight a commoner. He'd beat him. And not with his hands--can't touch the commoners, obviously--but with a cane or some such. Maybe even have a servant do it.

This system functioned fairly well as long as communities were small and no one, let alone the commons, had the ability to broadcast opinions and information at will. But once the printing press was introduced and became commercially viable, almost anyone could say almost anything to almost anyone at almost any time and in almost any place. So the task of protecting one's social reputation, which was already difficult, became very, very problematic, particularly when many of the people doing the talking were commoners and thus could not provide the satisfaction of a duel.

This is precisely why the Sedition Act of the infamous Alien and Sedition Acts was passed. Colonial America retained the sense of the gentry/common distinction despite the lack of any kind of landed aristocracy, though you can see the attempt to create such in the American South. But there was a real sense in which the founding generation was attempting to create a "republic of letters," i.e., a new "natural" aristocratic class based upon personal merit rather than ancestry. Didn't work out that way, but it's what they were aiming for. So the Sedition Act was designed to create an easy way for those who fancied themselves gentlemen to protect their reputations without having to tramp up and down the coast beating uppity newspapermen with a cane pretty much full time. However, the Constitution also included the First Amendment, which makes these sorts of laws illegal, and while the Supreme Court never ruled directly on it, prosecutions stopped by the beginning of the nineteenth century.

But Britain (1) never developed anything like the First Amendment, and (2) never had the clean break with their dynastic aristocracy that the US enjoyed. So their transition away from the pre-modern social authentication based upon credit and reputation has been a lot slower. Their ridiculous defamation laws are an artifact of this history.
posted by valkyryn at 8:34 AM on May 18, 2012 [2 favorites]

I'm not sure it's true of the "entire" civilized world. "The Girl With the Dragon Tattoo" seems to imply that Sweden has a UK style libel law.

Sweden has criminal libel, which is definitely *very* different from the the English system.
posted by atrazine at 6:13 PM on May 18, 2012