Monday, 5 July 2010

#libelreform is necessary to protect free speech and scientific enquiry - but is it sufficient?

There's little doubt that English and Welsh libel law needs to be reformed to redress the balance between those looking to protect their reputation and those engaging in an open, free discourse - a balance that is currently so skewed towards the former that recent years have seen cases such as Singh vs BCA, NMT vs Wilmshurst and Michael Jackson's bodyguard vs Channel 4.

There's also little doubt that the law as it currently stands would benefit not only from incremental changes but rather from a complete overhaul, beginning from first principles that enshrine in law the right to free speech - and as I wrote recently, Lib Dem peer Lord Lester has launched a draft Defamation Bill that attempts to do just that.

The question for Parliament, as it debates Lord Lester's Bill later this week, is the nature of those first principles - on what grounds do we base our new defamation laws, where do we look to for a legal framework that retains the right of redress in cases of genuine harm whilst defending the right to critical commentary and honest reporting?

Many people answer this question by rather simply saying, 'Look to the USA.' Indeed, at last year's Lib Dem fringe meeting on libel reform that I chaired, the journalist Nick Cohen made a strong argument for copying America's approach to libel, with the intention of lifting the chilling effect of our current laws.

I do wonder, however, if we're looking across the Atlantic with rose-tinted binoculars.

For news reaches us, via Jack of Kent in my case, that the excellent skeptical website Quackwatch has been threatened with libel action by Doctors Data, a company offering a medical test for heavy metals. Further details emerge via the actionforautism blog, and from Quackwatch themselves. The offending article is available here, and is a detailed explanation why the tests that Doctors Data offer are useless at best, harmful and fraudulent at worst.

Now I don't claim to know a great deal about heavy metal testing in the context of autism, other than what I can infer from a brief scan of the published medical literature - and from this it would appear that a urine test for heavy metals, undertaken at a short interval after administration of a chelator (an agent that binds to said heavy metals and forces their excretion), may not be an appropriate way to assess the role of mercury or other metals in autism.

Trouble is, the only way a non-specialist like me can readily find out is through the work of bloggers and journalists willing to report on the use of these tests, telling us whether such testing is legitimate or, pardon the pun, bogus. And with all the publicity surrounding English libel law, it perhaps wouldn't be surprising if Quackwatch had somehow been sued for libel here - and yet this action is being brought in a jurisdiction with apparently superior legislative protection for free speech and open enquiry.

Now of course no libel law could ever prevent every single ill-advised threat of libel, nor could any piece of legislation perfectly prevent companies silencing critical thought. But the lesson for me from this episode is a lesson that classical liberals have known since time immemorial - that government cannot possibly legislate away all our ills, that there is a limit to the efficacy of lawmaking by government. Even if our libel laws were to be reformed, cases such as Doctors Data vs Quackwatch would likely emerge, as a result of lawyers finding other legal pretexts to engage in reputation management - better known to you and I as silencing those we disagree with.

So for those of us interested in reforming libel law not for its own sake but to help create a culture of free debate and open evidence-based enquiry, the lesson must be that the battle does not stop at the passing of a new Defamation Bill, but rather continues on beyond Parliament into the very heart of public discourse, because whilst libel law reform may be essential for protecting free speech and scientific enquiry, sadly it may not be sufficient.

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