here - United Kingdom Parliament

931 Libel Law
1 DECEMBER 2010
Libel Law
932
[Mr David Davis]
I am sure that no Member wants to see Hampstead
heath littered with the bodies of dead journalists, but I
am not sure how much of an improvement that new law
was. It has been compounded with undoubtedly well
intentioned European Union and European Court of
Human Rights law, and we have ended up with dreadful
unintended consequences.
One of the most egregious consequences has been the
rise of the so-called super-injunction, which bans any
reporting of a case at all. The most extreme of those
was the Trafigura case, which you will remember,
Mr Speaker. Trafigura was accused of dumping toxic
waste on the Ivory Coast, and for a while its lawyers
secured a ban on the reporting even of questions in
Parliament. In so doing, they overturned the absolute
right to free speech fought for and won more than two
centuries ago by John Wilkes. That is a suppression of
free speech in this country that no one in the House
should countenance or tolerate.
There is worse yet: the crushing of free speech in
science and medicine. Both those disciplines advance by
conjecture and refutation, through the advancing of
theories and the testing of them by experiment. Free
dispute and unfettered argument are essential to that
process. Yet we are witnessing, time and again, the use
of English libel law by powerful commercial interests to
suppress legitimate discussion of scientific fact and
medical effectiveness.
That is not entirely new. A famous member of this
House, William Cobbett, was bankrupted by a lawsuit
in 1797 after he pointed out that the practice of bleeding
victims of yellow fever probably killed a number of
them. He fled the lawsuit and the victims continued to
be bled, and of course continued to die.
In modern times, the starkest example was the
thalidomide case. For some time, The Sunday Times
was prevented from publishing articles alleging negligence
in the manufacture and distribution of the drug, which,
as Members will remember, caused terrible deformities
in the children of women who took it in pregnancy.
That judgment was eventually overruled, and the law
was rebalanced slightly to favour free speech in the
Contempt of Court Act 1981. Unfortunately, however,
there are still actions by commercial companies and
other vested interests to suppress criticism of medical
products and practices.
I shall give an example. Henrik Thomsen, a Danish
radiologist, raised concerns that Omniscan, a drug used
to enhance medical scanner images, was causing crippling
pain and even death in a few patients. Despite the fact
that medicine advances by a process of critical appraisal,
the maker of the drug, GE Healthcare, sued him in the
British courts, clearly in order to silence him. The suit
has been resolved, but another medical specialist, the
eminent cardiologist Peter Wilmshurst, has faced similar
treatment. At a cardiology conference not in Britain but
in Washington DC in 2007, he criticised a product made
by an American company, NMT Medical, to deal with
symptoms of hole-in-the-heart syndrome. NMT sued
Mr Wilmshurst not in America but in the English
courts. He courageously decided to fight the case,
specifically to defend free speech.
Time and again, commercial companies take such
action to silence critics. The proper, responsible,
scientific way of dealing with criticism in medicine is
tousb present the data and confront the argument.
Using the law to silence legitimate criticism is to put
shareholder interest above public health and, sometimes,
public safety.
The best known case in England, of course, is that of
Simon Singh, who essentially called some of the claims
of chiropractors bogus. The British Chiropractic
Association sued him and, after a protracted legal battle,
lost. Nevertheless, he ended up hundreds of thousands
of pounds out of pocket in addition to losing two years
of his life—two years of stress, anxiety and the prospect
of financial ruin. A less courageous man would have
buckled, and indeed most do. That, of course, is the
purpose: to intimidate critics out of saying anything, or
to force a humiliating retraction, effectively gagging the
press from reporting such criticism.
The tactics used are carefully refined. They are known
as “lawfare” and are designed to focus the financial
intimidation on the individual who is least able to bear
it. The most recent demonstration of that nasty tactic
would be ludicrous—bordering on the farcical—were it
not so serious in its wider implications. It involves a
product, elegantly called “Boob Job”, sold at £125 a jar
and produced by a company called Rodial. The Daily
Mail sought the advice of a leading consultant plastic
surgeon, Dr Dalia Nield, of the London Clinic. As one
might expect, she questioned its effectiveness and suggested
that if it had the physiological effects claimed for it by
its producers, it might be dangerous.
Rodial threatened Dr Nield with legal action. It has
not threatened the Daily Mail, which carried her comments,
because it has the resources to fight back, just Dr Nield,
to get the maximum intimidation for the minimum risk.
The proper response of any self-respecting company
would be to publish the detailed composition of its
product and the data supporting its claims, and engage
experts to test those claims and carry out safety tests.
That would be the approach of a respectable company,
but I am afraid that Rodial has not taken such an
approach—it has taken instead the approach of a charlatan
and a bully.
Of course, Rodial is not alone. When NMT threatened
Peter Wilmshurst with a lawsuit, it did not threaten the
BBC, which broadcast his comments, because the BBC
can fight back. When the chiropractors sued Simon
Singh, they did not sue The Guardian, which published
his comments, because The Guardian can fight back.
That is why it is called ″lawfare″—it is the deployment
of judicial shock tactics against the most defenceless
part of the opposition. It is a disgraceful tactic, and it
should not be possible under any decently balanced
judicial system.
The effect of “lawfare” is to chill free speech in
science, medicine and many other areas. In this age of
the internet, that chilling effect does not stop at our
borders. We should remember that English is the language
of science. The impact of our dysfunctional laws will
become more global as more corporations come to
understand what they can do to use our laws to suppress
criticism.
Fiona Mactaggart (Slough) (Lab): I wanted to highlight
the fact that “lawfare” operates not merely in
science. My constituent, Hardeep Singh, has been
battling for four years in the ludicrously named case of