Written evidence submitted by Sense About
Science
1.1 Sense About Science (www.senseaboutscience.org)
is an independent charitable trust. We work with 4000 scientists
to help the public with contentious issues in science and medicine.
1.2 Since June 2009 we have been highlighting the
impact of libel laws on scientific and academic discussions. Following
a pre-trial ruling in the case of the British Chiropractic
Association v Simon Singh, we became aware that the libel
laws were causing scientists to be reticent about writing and
speaking on matters that we regard as in the public interest.
Since then we have heard from scientists and academics fighting
court cases, patient groups and website editors withdrawing comments
and articles after legal threats, and writers and journal editors
regularly paying for legal advice and avoiding subjects connected
to any organisation or individual with a history of suing their
critics.
1.3 I am writing to alert you to this little
recognised impact of the libel laws and to draw attention to the
four categories of effects that we have observed from examples
sent to us:
— Legal proceedings brought against scientists
and academics
— Legal threats leading to withdrawal of
writing
1.4 This is an amended version of our submission
of 23 November 2009 and is for publication.
2. LEGAL PROCEEDINGS
— People writing about scientific and medical
issues are being brought before the High Court. These have recently
included:
— Peter Wilmshurst, a consultant cardiologist
from Shrewsbury hospital and principle investigator on a clinical
trial of a heart device, is being sued by the American manufacturer
NMT. Wilmshurst expressed concern about the way that the clinical
trial data was being interpreted by the manufacturer to an American
journalist at an academic conference in Canada. NMT is suing Wilmshurst
for libel in London. Note that if Peter Wilmshurst had not made
public his concerns he would have been in breach of the Hippocratic
Oath and may have faced a GMC investigation.
— The scientist and writer Simon Singh
was sued for libel by the British Chiropractic Association following
his comment piece in The Guardian about the lack of evidence
for chiropractic for some childhood conditions, including asthma
and colic. The BCA sued for libel and the article was withdrawn.
The case is still at a preliminary stage and so far has cost Dr
Singh more than £100,000 and taken 18 months.
— The doctor and comment writer Ben
Goldacre was sued for libel along with The Guardian by
a vitamin pill manufacturer after he expressed concern about vitamin
pills being promoted for treatment of HIV in Africa. They successfully
defended the case in 2008. It cost £500,000 but they will
only ever recover 60% of those costs.
3. LEGAL THREATS
LEADING TO
WITHDRAWAL OF
WRITING
With the cost of winning a libel case so high
and the cost of losing catastrophic, the Committee will be aware
that few cases reach court and most are settled.
Scientists have contacted us to report that
they have withdrawn (or had editors or publishers withdraw) articles
and sometimes apologised for material that they stand by but which
they or publishers cannot afford to defend. An example of this
is a scholarly review of lie detector technology written by two
professors of linguistics at Swedish universities published in
The International Journal of Speech Language and the Law
in 2007. The article concluded that there is no reliable scientific
evidence that lie detectors work. The authors and the journal's
publisher were threatened with legal action for defamation by
a lie detector manufacturer and the publisher withdrew the article.
Even if scientists stand by their writing they
may be powerless to protect it as illustrated by the online medical
writer Andy Lewis who was threatened with a libel action through
his webhosts following his blog on the failure of the Society
of Homeopaths to enforce its own "code of practice"
and to censure members who had made dangerous claims. His webhosts
took the site down.
4. EDITORIAL SPIKING
It is difficult to gauge the extent of editorial
spiking. People are surprised to learn that medical journals consult
lawyers on a regular basis. Senior scientists have also reported
removing references in the writing of colleagues that might open
them up to legal action. We have received many calls about this.
It seems the legal advice is always to play
safe. This is illustrated by Dr Fiona Godlee, editor-in-chief
of the leading medical journal the BMJ, who told us the
BMJ Group of medical journals has had to refuse to publish scholarly
articles purely because of legal advice. As one example, the journal
Archives of Disease in Childhood turned down a series of
case reports illustrating clinical signs suggestive of child abuse.
The editor was keen to publish, but the legal advice was that
there was a small possibility that cases might be identifiable
and thus a risk of libel action. The paper was later published
in an American journal.
Even without legal advice to play it safe the
uncertainty around the libel laws means editors err on the side
of caution. This lack of confidence in free speech rights is demonstrated
by people like Anna Lewcock, News Editor of Chemistry World magazine,
who regularly pulls sections out of stories or delays their publication
because she is not sure if she is putting the magazine at risk
of a libel action they do not have the resources to fight.
The decision to publish or not seems directly
related to the ability of the publication to withstand proceedings
rather than the merits of the publication. This is illustrated
by Dr Soren Holm, editor of the Journal of Medical Ethics,
who turned down an article on the ethics of homeopathic practitioners
even though he agreed the information in the article was important
and worthwhile because a potential libel action would put the
finances of the journal and his staff's livelihood at risk.
5. SELF CENSORSHIP
Examples of self-censorship are difficult to
capture but we have heard from scientists and writers that there
is a growing chill. Natasha Loder, science correspondent with
The Economist and Chair of the Association of British Science
Writers, told us that `Censorship doesn't start in the courtroom,
it doesn't start with the editor, it starts in the brain'.
The potential cost of defending a libel action
means big companies and rich individuals are increasingly unlikely
to be criticised. This is illustrated by the editor of a consumer
technology magazine who has not addressed the poor manufacturing
standards of digital receiving equipment from large companies
because of the fear of legal action despite expert evidence that
these products are often unfit for purpose.
Uncertainty and confusion about the libel laws
means journalists avoid entire subjects like the Australian journalist
Nick Miller who does not write about some alternative medical
treatments because he is unsure whether it would put him and his
employers at risk of legal action from practitioners.
The current state of the libel laws means open
scientific and medical debates are being stifled. These debates
are vital in science and medicine. There is clearly a public interest
in much of this material being available, including warnings about
unproven medical therapies being offered, which have become especially
prevalent on the internet. I also draw to the Committee's attention
the fact that systematic reviews of evidence include all available
material (including case reports) and that missing material is
likely to skew subsequent systematic reviews. This is particularly
important in the case of medical therapies where the National
Institute for Clinical Excellence reviews the scholarly literature
to reach decisions about effective treatments recommended for
use in the National Health Service.
February 2009
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