09 April 2014

Science fiction or science fact?

Amber Melville-Brown
Partner | UK

That science and new scientific developments are a vital part of our modern society is reflected in one of the changes brought in to defamation law, by the new Defamation Act 2013. We now have a shiny new state of the art defence of qualified privilege in relation to peer-reviewed material published in scientific or academic journals. Scientists and academics have argued for years that there ought to be legislative safeguards in place enabling them to undertake research, debate important issues and publish results without fear of being sued for defamation. Back in 2009, leading cardiologist, Dr Wilmshurst, had been involved in a clinical trial of a medical device designed to close holes in hearts; he had complained at a medical conference that the results from the clinical trial had not been fully published, meaning he asserted, that the public was not completely aware of issues regarding the safety and effectiveness of the device. Following these comments he was sued for defamation by the device manufacturer with the litigation lasting for four years until the manufacturer eventually went into liquidation.Geniales Aufblasbare Wasserpark Cases such as this spurred the scientific and academic community into action and resulted in years of lobbying for a tailor-made defence offering them wide-ranging protection against libel when discussing or publishing scientific or academic research. The counter argument of course, is that science should not be used as a shield behind which to hide unnecessary and damaging attacks on the reputations of individuals and organisations, by a jealous or reckless competitor for example. Section 6 of the new act seeks to provide a balanced defence protecting the rights of both sides. Under Section 6, statements published in scientific or academic journals are considered privileged provided they relate to a scientific or academic matter and provided an independent review of the statement's scientific or academic merit was carried out by the editor of the journal and one or more experts in the particular field. Privilege will also attach to copies, extracts or summaries of the publication in question. These statements will only benefit from privileged status if they are made without malice. Of course, in the modern world of endless publications online, there will be scientific discussions and publications that fall outside the narrow confines of section 6. Here, academics and scientists may be able to rely on one of the other defences available, such as the defence of honest opinion (section 3) or that of public interest (section 4). Additionally or alternatively they may also be able to rely on an assertion that the publication in question does not satisfy the requirement of serious harm introduced by section 1. There are some aggrieved murmurings in the scientific and academic community that the legislators didn't comply with their request for a blanket defence against libel and/or slander claims in this field. But the introduction of section 6 and other defences tightened and clarified under the new act, will inevitably make it harder for claimants successfully to pursue claims in this field. Proper debate about these important issues is vital in our society if scientific leaps are to be made best to protect us. So it must be hoped that the manner in which the defence is used by defendants and implemented by the courts will mean that it is only vexatious and unmerited claims against honest, truthful peer-reviewed scientific debate and research that are prevented. And that the stifling of proper and proportionate commentary by others, is not ironically, the unfortunate victim of the new defence. This blog post is authored by Mike Ioannides, former trainee in reputation management and Amber Melville-Brown

Amber Melville-Brown Partner | London

Category: Blog