Written evidence submitted by Sense About Science (PS 178)

 

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

· Editorial spiking

· Self Censorship

 

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 The BCA sued for libel and the article was withdrawn.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