Dec 24 2009
Skeptical bloggers have been focusing this year on England’s terrible libel laws – and with good reason. Our attention was sparked by the suit against Simon Singh brought by the British Chiropractic Association (BCA). Last year Simon wrote this piece, criticizing the use of chiropractic to treat certain childhood conditions, treatments for which there is no credible evidence of efficacy. Actually I would go further – there is evidence that some of the treatments don’t work.
The BCA responded by suing Simon Singh, it what certainly seems like a transparent attempt at silencing legitimate criticism through the chilling effect of England’s oppressive libel laws. Being sued for libel in England is so expensive that most people will just settle rather than risk financial ruin. And the laws are so liberal that they lend themselves to libel tourism – foreigners suing in English court to take advantage of the favorable laws.
BCA’s lawsuit seems to have largely backfired (due largely to Simon bravely sticking out the law suit, at great personal expense). They have been embarrassed by the episode, and if anything it has just highlighted how terrible the evidence is for their treatments. It further spawned a movement to reform English libel laws, spearheaded by Sense about Science. There is currently a reform libel campaign going on, and you can sign the petition.
Rational libel laws are necessary – if someone is the target of a deliberate campaign to destroy their reputation, they should have legal recourse. But if the laws are too one-sided, as they are in England – and the process is too expensive, then libel laws have a chilling effect on public discourse. Especially the most important kind of public discourse - calling into question popular but dubious claims.
In the US the libel laws are much more reasonable. In fact, many states have SLAPP laws – Strategic Lawsuits Against Public Participation. What this means is if someone sues someone else as a deliberate attempt to silence legitimate criticism or discourse through intimidation, then they can be counter-sued through the SLAPP provisions in the law. This is a good thing, as it discourages frivolous or bullying law suits.
Now we have some good new from Canada. The Canadian Supreme Court recently endorsed exactly what skeptics have been saying – it is in the public interest to protect free speech from chilling libel laws. CBC News reports:
The Supreme Court said it examined laws in other countries with similar legal systems, such as the United Kingdom and Australia. It found that Canadian law was strict by comparison and did not give enough weight to the value of free expression.
“This, in turn, may have a chilling effect on what is published,” said the text of one of the rulings. “Information that is reliable and in the public’s interest to know may never see the light of day.”
The Supreme Court ruled that those sued for libel may use “responsible communication in the public interest” as a defense. And not only journalists can use this defense:
The Supreme Court chose to broaden that to “responsible communication” in order to include non-journalists, especially online, who are increasingly communicating matters of public interest.
So bloggers are covered too. Bloggers and journalists may still have the burden of proof that their reporting was responsible – this isn’t a blank check to commit actual libel. But it recognizes the value of public debate on important issues, specifically in the new media.
This decision also reflects the globalization of libel laws. Especially with the internet and web 2.0, communication is now more global than ever, and courts are increasingly looking to, or yielding to, international standards to craft their own laws.
This is a good thing too, in my opinion. Optimal libel laws are all about balance – balancing the need to protect individuals and institutions from unfair harm to their reputation, while protecting the value of free public discourse, especially on controversial issues. Greater balance and nuance is likely to emerge from an international discourse on libel laws themselves, rather than allowing quirky and historically contingent local traditions to persist.
So, well done, Canada. And now we must keep our attention fixed on England until they reform their horrendous libel laws and bring them in line with international standards.
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