JOINT COMMITTEE ON THE DRAFT DEFAMATION BILL Joint Committee on the Draft Defamation Bill Written evidence Volume III (HL Paper 203 & HC 930-III) Contents Memorandum by the British Medical Association (EV 01) .......................................... 2 Memorandum by Mr T Ewing (EV 02) ........................................................................ 4 Memorandum by Dr Peter Wilmshurst (EV 07) ......................................................... 20 Memorandum by The Society of Authors (EV 12) .................................................... 36 Memorandum by the Media Law Resource Center (EV 14) ..................................... 42 Memorandum by the Canadian Lawyers Association (EV 15) .................................. 53 Memorandum by Professor Stephen Curry (EV 16) ................................................. 65 Memorandum by Jonathan Seagrave (EV 17) .......................................................... 69 Memorandum by JUSTICE (EV 20) .......................................................................... 72 Memorandum by The Law Society (EV 21) .............................................................. 86 Memorandum by Skeptics in the Pub (EV 22) .......................................................... 99 Memorandum by Professor Max Headley (EV 23) ................................................. 102 Memorandum by Professor David Colquhoun (EV 25) ........................................... 103 Memorandum by James Price QC (EV 26)............................................................. 106 Memorandum by the Nightingale Collaboration (EV 28) ......................................... 112 Memorandum by The Campaign for Press and Broadcasting Freedom (EV 30) .... 114 Memorandum by Professor Sir Leszek Borysiewicz, Vice-Chancellor of Cambridge University (EV 31) ................................................................................................... 121 Memorandum by Brian Deer (EV 32) ..................................................................... 122 Memorandum by David Powell (EV 33) .................................................................. 126 Memorandum by Professor Francisco Lacerda (EV 35) ......................................... 134 Memorandum Submitted by Law Reform Committee (EV 36) ................................ 137 Memorandum submitted by Dr Andrew Lewis (EV 39) ........................................... 154 Memorandum by Alex Hilton (EV 40) ..................................................................... 161 Memorandum by John Gray (EV 41) ...................................................................... 162 Memorandum by the Media and Communications Committee of the Business Law Section of the Law Council of Australia (EV 51) ..................................................... 166 Memorandum by the Ministry of Justice (EV 54) .................................................... 172 Memorandum by Mark Warby QC (EV 55) ............................................................. 175 Memorandum by Tim Crook (EV 57) ...................................................................... 185 Memorandum Submitted by The Pirate Party UK (EV 58) ...................................... 190 Memorandum Submitted by Full Fact (EV 59) ........................................................ 195 Memorandum by Robert Dougans (EV 60) ............................................................ 197 Memorandum by Jeff Williams (EV 61) .................................................................. 205 Memorandum by Hardeep Singh (EV 62) ............................................................... 211 Memorandum by Robert Whitfield (EV 63) ............................................................. 215 Memorandum by the Federation of Small Businesses (EV 65) .............................. 218 Supplementary Memorandum by The Law Society (EV 66) ................................... 219 Memorandum by the British Medical Association (EV 01) Memorandum by the British Medical Association (EV 01) The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine all over the UK. It has a total membership of over 144,000. The BMA welcomes the opportunity to respond to the Committee‘s inquiry on the draft Defamation Bill. The BMA will also be separately responding to the issues raised by the Ministry of Justice‘s (MoJ) consultation on the draft Bill. Many of the questions in the MoJ consultation refer to technical legal matters in this area, such as the repeal of specific legal instruments, the relationship between common law and statute and questions of qualified and absolute privilege that are outwith the BMA‘s expertise. Our comments are therefore limited to the impact on scientific and medical discourse. As a professional association for doctors, the BMA is strongly committed to open scientific debate. Health is clearly a critical factor in human wellbeing, and advances in medical science have made enormous contributions to individual and public welfare. Scientific progress, however, largely comes about by experimentation and research, and robust public debate is essential to the contesting and clarification of both scientific evidence and explanatory theories that may emerge from it. Without critical analysis, scientific progress can be inhibited and opportunities for improving the health of individuals and populations lost. The BMA has been concerned for some time that English libel law may be inhibiting free and open discussion of matters of critical public concern in the sciences. While the BMA fully shares the Secretary of State for Justice‘s view that defamation law must strike the right balance between defending freedom of speech and the protection of reputation, there is evidence to suggest that the current libel laws can favour the protection of powerful reputation over the public interest in scientific debate. In recent years, the frequently cited cases of British Chiropractic Association v Singh and Rath v Goldacre have drawn attention to the limits of legitimate comment on matters of clear public interest. Both cases involved reputable science writers raising questions about the evidence base of particular therapeutic interventions. Rather than respond directly to the criticisms, the opposing parties both chose to sue. Given that the potential cost of defending a libel action is prohibitive and the current law is widely regarded as lacking a robust public interest defence, the threat of libel action can inhibit a willingness to publish critical commentary even where the issues at stake are far from trivial and the criticisms are both reasonable and well- intentioned. Rather than respond to the detailed questions outlined in the Committee‘s call for evidence, the BMA would like to make the following general points: Memorandum by the British Medical Association (EV 01) Overall, the BMA would like to see enhanced consideration of the public interest defence in relation to responsible publication. Given that the costs of defending libel actions can act as a strong disincentive to publication of comment or opinion that may be in the public interest, consideration should be given to reducing their costs. The BMA therefore supports further exploration of matters such as the development of new procedures to resolve key preliminary issues at an early stage and the removal of the presumption in favour of a jury trial. To conclude, the BMA strongly supports the protection and promotion of a free scientific commons. Open debate acts as a critical spur to intellectual innovation. Although individuals who have been defamed should have proper recourse to procedures to defend their reputations, this should not be allowed to inhibit the reasonable expression of opinion, or the critical discussion of matters of evidence. Although the BMA does not have specific legal expertise in this area, it nevertheless strongly supports the Government‘s general direction of travel. April 2011 3 Memorandum by Mr T Ewing (EV 02) Memorandum by Mr T Ewing (EV 02) I am writing to make representations regarding the draft Defamation Bill being considered by the Joint Committee of the House. In addition to these representations, I would wish to give oral evidence relating to these proposals. I would make the following points. ADDITIONAL MEASURES FOR INCLUSION IN THE BILL POSSIBLE CRIMINAL OFFENCE TO REPLACE CRIMINAL LIBEL I would suggest that where a newspaper publishes material that is both offensive and defamatory, there doesn‘t appear to be any proper remedy at the moment so far as the criminal law is concerned. Prosecutions for Criminal Libel were rare and difficult, as it had to be proved that the material was both defamatory and wasn‘t published for the public benefit. The provisions of the Law of Libel Act 1845 were cumbersome and out of date and have been rightly repealed. Prosecutions under the Public Order Act 1986 would also now prove equally difficult, as would one using the Malicious Communications Act 1988, for the reason that the articles aren‘t communicated directly to any specified person. I would suggest that a new statutory offence be created, that was easy to apply by prosecutors such as the CPS in situations that warranted a criminal prosecution of a newspaper, its editor and any journalists concerned. The offence would be punishable by up to 5 and 10 years imprisonment respectively at the Crown Court and six months at the Magistrates‘ Court and triable