Is the End Nigh?

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Journalists have been whinging about England’s libel laws—which notoriously place the burden of proof on defendants, lack a strong defense for fair commentary or writing on public figures, and provide a venue for forum-shopping plaintiffs across the globe—for generations. But efforts at reform, like the parliamentary committees of 1948, 1975, and 1991, have produced only tweaks.

So skeptics can be forgiven for doubting that anything will come of a similar parliamentary report issued this winter. But across Britain, there’s a growing consensus that the law has become a national shame and a chill on public debate. Just a few years ago, not one major party included a call for libel reform in its platform. This spring, all three did.

What accounts for the transformation? International pressure, in part. In 2008, the United Nations Human Rights Committee concluded that Britain’s laws discouraged “critical media reporting on matters of serious public interest” and warned of a danger to “freedom of expression worldwide” in the Internet age. Meanwhile, laws have been passed in four U.S. states to protect Americans from adverse judgments in England—a “humiliation for our system,” the most recent parliamentary report acknowledged.

Another catalyst was Simon Singh, a best-selling science journalist. In 2008, Singh published a column in The Guardian asserting there was “not a jot of evidence” behind the British Chiropractic Association’s claim that spinal manipulation is an effective treatment for childhood colic, ear infections, or asthma. He was sued for libel, and The Guardian told him it couldn’t afford to fight. But earnings from his popular books hadn’t left Singh defenseless. “I could see no reason why I should back down,” he says. “If I had the time and the resources, I had almost a responsibility.”

Significantly, said Singh’s lawyer, Robert Dougans, the column “wasn’t a story of an MP who had fiddled his expenses a bit, or of a footballer with a prostitute. It’s real science journalism about real health.” That meant the ensuing legal battle provided a handy rallying point for a key new player, a coalition known as Libel Reform. Made up of the English branch of the writers’ association pen and the NGOs Index On Censorship and Sense about Science, the campaign has major support from the Open Society Institute (a CJR donor), but no formal backing from the publishing or media industries.

Libel Reform built its publicity efforts and parliamentary lobbying around Singh’s trial, which as it unfolded demonstrated another perversity of the law. After an adverse initial ruling, Singh prevailed on appeal in April, putting him in the roughly one-tenth of writers who successfully defend libel claims in British courts. But he spent about £200,000 of his own money, and hopes to recoup at most 80 percent. His experience illustrates how the cost of a lengthy defense—an Oxford study pegged British libel litigation at 140 times more expensive than the average in continental Europe—is a greater threat than damages under the current regime.

The reform campaign is making progress. The ruling Conservative Party and its junior partner, the Liberal Democrats, wrote a review of libel law into their coalition agreement. Meanwhile, Lord Anthony Lester, a Lib Dem peer with a track record of major legislation, has introduced a bill that Libel Reform hopes to push forward.

Given the burden he faced, says Singh, his advice to other journalists in the same situation would be, “don’t fight the case.” If the current effort prevails, they may not face that dilemma.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.