Rupert Earle, Partner at Bates, Wells and Braithwaite, considers slander and libel case GE v Thomsen, in a Lexis Nexis publication.

Henrik Thomsen, a Danish academic and radiologist, is being sued by General Electric. He made claims, in a slide show and presentation to a small group of experts attending a conference in Oxford, that his patients had contracted a potentially deadly condition after being administered GE’s Omniscan contrast agent drug. The claims were reported in a Danish journal of which he is one of the editors, and which has a small UK circulation. GE are not denying that this product is problematic for patients with significant renal kidney problems. The issue is with whether statements made by Thomsen suggested that GE knew about the problems and sought to conceal them, and if so whether such statements are covered by the defence of qualified privilege.

Two other cases involving scientists and medics are also in the spotlight – The British Chiropractic Association are suing science writer Simon Singh, and NMT Medical are suing cardiologist Peter Wilshurst.

In a simple case it should be possible to knock out a claim or defence at an early stage, but these are evidently not simple cases, and illustrate the pitfalls for scientists, doctors and academics of UK defamation law.

The first pitfall is in making allegations which may be read as an attack on the good faith of a corporation. Such allegations will invariably be more difficult to substantiate than simply posing questions about the efficacy of a product or about corporate behaviour (eg. when did GE know about this and could they have taken action sooner?). A second pitfall for academics is the divergent laws across the EU (and indeed the world), when much academic debate takes place across international boundaries. Presumably Thomsen feels he could have said what he said in Denmark without any comeback. A third pitfall is costs, where the academic may not have a corporation or institution to fund his defence – the GE case has yet to reach trial and GE are reported already to have incurred £380,000 in costs.

In fact potential defendants have benefitted in a number of ways from changes in defamation law and procedure over the past decade or so, often under pressure from the European Court of Human Rights in Strasbourg and the development of jurisprudence under article 10 of the Convention. Damages are much reduced. There is a responsible publication defence even where a writer gets his facts wrong. There are cost penalties for litigating without pre-action attempts to settle first, and the Civil Procedure Rules have recently been amended to require increased court monitoring of defamation costs, and more reasonable use of ATE insurance. Claimants used to be able to wait for six years before taking libel action, the limitation period is now one year. The courts have recently taken a more robust line in striking out pleaded defamatory meanings that go beyond the meaning that the words complained of, read in context, can sensibly have conveyed to the ordinary reasonable reader (eg. Elton John v Guardian [2008], Ajinomoto Sweeteners v ASDA [2009]).

In addition the power of the new forms of communication can make claimants nervous of suing academics and others who the web community feel should not be in court – blogs, twitter and web forums can soon spread the troublesome allegations far wider than if they had been met with a more subtle response.

But significant problems still remain, many highlighted in the joint report Free Speech is Not for Sale (http://www.libelreform.org/) by English Pen and Index on Censorship. The Ministry of Justice has recently consulted on one issue - every time a document is accessed on the internet it amounts to a new publication, so every time someone accesses the archive the one year limitation period starts to run again. One possibility raised by the Ministry of Justice is that the defence of qualified privilege should apply to online archives beyond one year from initial publication, subject to the publisher agreeing to update the electronic version with a reasonable letter by way of explanation or contradiction (http://www.justice.gov.uk/consultations/docs/defamation-consultation-paper.pdf).

As far as divergent national laws are concerned, article 10 of the European Convention on Human Rights has harmonised European laws on free speech to a degree, but there are still huge discrepancies. The EU is tackling the freedom to provide goods and services across boundaries, but has not grappled with the freedom to exchange ideas. The European Commission could usefully look at harmonising EU law in this area.

Some argue that there should be special privilege for medics and scientists, so that they would never be liable for what they said unless a claimant could prove malice. It is doubtful that this would work. There is a clear value in debate on scientific issues - the law should not be so complicated that scientists need to turn to lawyers or take out libel insurance before commenting on controversial issues, and the threat of libel proceedings should not prevent people expressing their views freely and sharing the results of their research, provided they do so carefully. The difficulty with creating a special defence is in knowing where to draw the line. Who is a scientist and who is not? In the Reynolds case (Reynolds v Times Newspapers [2001] 2 AC 127), the House of Lords rejected the argument that there should be a generic privilege for articles about politicians, taking the view that it would not be right to single them out, there are lots of other important and influential role models, and in order to make an informed choice it is important that the electorate have accurate information about politicians. The same issues arise with scientists. In the right circumstances, for example where they are alerting an appropriate audience to what in their view are the dangers of a particular treatment in the face of regulatory inaction, the defence of qualified privilege should already be available.

The question of what meaning is conveyed by the academic is often crucial. The case involving Dr Singh turns on the meaning of his article in The Guardian, under the heading “comment and debate”, which stated that “the British Chiropractic Association … is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments”. Dr Singh says that he never intended this to be an assertion of fact, simply an opinion. Eady J found it to be a clear assertion of fact. Laws LJ has given permission for an appeal to the Court of Appeal (British Chiropractic Association v Singh, [2009] EWCA Civ 1154), taking the view that free speech concerns might suggest that Singh’s statement should be read as comment. The Court of Appeal will hear the case in February 2010. The outcome of that will no doubt have an impact on the Thomsen case, given that both involve allegations about (so it is argued) the good faith of those providing treatments, and the Court may well express a view on how far academics should be allowed to go before opinion becomes fact.

One of the proposals in Free Speech is Not for Sale is that corporations (such as GE) should not be able to sue for libel, only for malicious falsehood, as is now the case in Australia, and here for public authorities. The issue was considered by the European Court of Human Rights in Steel and Morris v the UK [2005] where a group known as London Greenpeace had been distributing leaflets about McDonald’s making serious allegations about their commercial practices, including exploitation of children and destruction of the rainforests to raise beef cattle for burgers. The Court ruled that it was not contrary to article 10 for corporations to be allowed to sue for libel, unfounded allegations may have indirect consequences for employees, shareholders and the wider economic good. The Court left the door open to such a ban, and noted that the ability of corporations to sue needs to go hand in hand with the ability of defendants to defend such actions (eg. legal aid) and the award of only modest damages. But even were such a ban to be introduced, an attack on a company’s good faith might still constitute an attack on its directors or specific employees, who would still be able to bring an action, no doubt funded by their employers. There is a respectable case for allowing corporations to sue where untrue allegations might destroy them, but perhaps confining their remedy to an appropriate apology unless special damages can be quantified and proved.

Finally the issue of costs. Lord Justice Jackson has just published his final report:- (http://www.judiciary.gov.uk/about_judiciary/cost-review/jan2010/final-report-140110.pdf). He describes the present pro-claimant costs regime for defamation as “the most bizarre and expensive system that it is possible to devise”. He recommends doing away with success fees and after the event insurance premiums recoverable from unsuccessful defendants, and instead increasing the level of damages awarded slightly and requiring the courts to take into account relative financial resources and conduct before making costs orders against unsuccessful claimants. However this does not address the problems which may arise when a well resourced claimant is suing a defendant of modest means. Free Speech is not for Sale suggests compulsory mediation or arbitration in libel actions. This will not work in all instances, but a disinterested observer can’t help thinking that the GE v Thomsen case is tailor made for it.