Kevork Djansezian
Even halfway around the world, Britain's libel laws have the power to silence dissent. English science writer Simon Singh discovered this when he was interviewed by an Australian journalist about a book he had co-written, Trick or Treatment? Alternative Medicine on Trial. The journalist went off to write a story about homeopathy, only to have the newspaper's lawyers kill it before publication. They were worried about being charged with defamation in London, almost 20,000 kilometres away.
London's reputation as a centre for libel claims - in local slang, it's "the town called sue" - has become so dire, according to law-reform advocates, that it poses a real threat to scientific, academic and press freedom. "Libel tourism" refers to court cases tried in London even if none of the litigants, or even the publication, is based here.
Critics of Britain's moth-eaten libel laws like to cite the examples as if they are reading from a novel by Franz Kafka: A Danish radiologist speaks at a conference in Oxford and is sued by a U.S. company; a British cardiologist, attending a conference in Washington, is quoted in a U.S. online magazine and is taken to court in London by a Boston-based medical manufacturer.
Now, a wide-ranging group including scientists, stand-up comedians, novelists and human-rights activists is throwing its support behind a campaign to reform libel laws.
"Does England deserve to have scholars visiting us and sharing their ideas if this is the way they get treated?" says Mr. Singh, author of Fermat's Last Theorem and Big Bang. "The laws need to be changed so that London isn't the most attractive place in the world to sue someone."
Why has London earned this reputation? The answer is multifold: The burden of proof rests with the defendant, unlike in the United States, and it's assumed that the person (or company) that brought the suit has a reputation to lose in the first place. Crucially, there's a provision in British law that if an alleged defamation appears anywhere in the country, no matter how briefly - written in a newspaper read by 10 people, say, or available to download from a foreign website - then it's actionable.
Then there are the vast rewards at stake. Lawyers are spurred on by "conditional fee agreements," otherwise known as "no-win, no-fee" clauses. In theory, this democratizes the law, allowing poor people to launch suits. But a defendant who loses a case has to pay his opponent's lawyer's fees, plus a success bonus - often doubling the fee - and a portion of the winning side's insurance costs as well. Damages can be awarded on top of that. Jack Straw, the British Justice Secretary, recently moved to cap these fees, while announcing a sweeping review of libel law.
Fighting a libel suit in Britain costs 140 times more than anywhere else in Europe, according to a study by the Comparative Media Law and Policy Centre at Oxford University. The sky-high cost means that only a handful of cases go to trial each year; it's estimated that more than 90 per cent of actions are settled out of court.
What worries reform campaigners is the vast iceberg under the surface: the scientific research that is going unreported or unwritten for fear of potential litigation. "There's clear self-censorship going on already," says Mr. Singh, who is being sued by the British Chiropractic Association over a matter completely unrelated to the one the Australian journalist was writing about - an article he wrote in the Guardian newspaper disputing the benefits of chiropractic treatment. "You think, 'Can I even go into this territory?' "
Mr. Singh's case, which he lost initially, is up for appeal this month. By the time it's settled, he will have fought for two years, with his own cash. "It's the draining effect on time and money and resources, that's what leads to the chilling effect," he says.
Certainly Henrik Thomsen doesn't plan to open his mouth in Britain soon. The Danish radiologist is being sued by GE Healthcare, an arm of the U.S. company General Electric, over remarks he made at a conference in Oxford about a drug manufactured by GE that he said had potentially devastating side effects for some patients. "I am not giving lectures any more in the U.K., where it seems you can be sued for telling the truth," Mr. Thomsen told the Guardian last month.
Similarly, a British heart doctor, Peter Wilmshurst, is being sued by Boston-based NMT Medical over comments he made in the U.S. about clinical trials involving a heart-valve patch manufactured by the company. His comments were published in an online medical magazine, but the action is based in London.
It's not only scientists who are in the firing line. A U.S. writer, Rachel Ehrenfeld,was sued by Saudi billionaire Khalid bin Mahfouz for defamation after he was cited in her book, Funding Evil - although only 23 copies of the book were available in Britain.
Celebrities who are not based in Britain, including Cameron Diaz and Roman Polanski, have launched libel actions in London. Ms. Diaz won her suit against the National Enquirer, even though the newspaper argued that fewer than 300 people in Britain saw the disputed story on its website.
Mr. Polanski was allowed to testify by video link from France for his successful libel challenge against Vanity Fair magazine, heard in a London court in 2005. He won.
Angelina Jolie and Brad Pitt, who have largely ignored heated speculation about the state of their union in U.S. media, announced this week that they were suing Britain's News of the World over suggestions that they were breaking up.
The group fighting to reform libel laws recommends that the process be made faster and cheaper; for the libel-tourism loophole to be closed so that a disputed publication has to have a significant presence in Britain; for the right to sue to be limited to individuals and small companies; and, most important, for the public-interest and fair-comment defences to be beefed up.
"We need a more robust, more accessible public-interest defence, so that writing on these important subjects is protected from the chill of libel actions," says Sile Lane from the Sense about Science education charity.
She says her group has heard repeatedly from the editors of scientific and medical journals who have pulled articles over legal fears. (The public-interest defence, recently strengthened in Canadian libel law in a decision by the Supreme Court, exists in theory in British law, but remains largely untested.)
In the U.S., where libel laws place a much greater burden on claimants to prove that they have been defamed, four states have passed bills to protect their citizens from decisions made by British courts, and the U.S. Senate is considering similar legislation. The bill passed in California calls Britain "a jurisdictional mecca for the rich and famous."
"It's acutely embarrassing for the government that various American states have passed laws to protect their citizens from English libel law," says Jonathan Heawood of English PEN, who co-wrote a report called Free Speech is Not For Sale.
While he welcomes Mr. Straw's review of British laws, he is not sure what priority it will be given by an unpopular government facing a tough election fight.
"Still," Mr. Heawood says, "it's a clear acknowledgment that the law, as it stands, is not working for anyone."
Elizabeth Renzetti is a member of The Globe's European bureau.