Develop. Med. Child Neurol. 1976 18, 99-102
Paul Sieghart
Special Article
The English Law of Libel and Medical Journals and quite right too. The trouble is that Mr. Cutler Walpole also has quite a good chance of winning his, and there lies the rub. Why do we have to have a law of libelor, more strictly, of defamation? The question is asked with irritation by defendants who have suffered at its hands -writers, publishers and editors who have had to pay damages. The answer is simple, and as well illustrated by the case of Dr. Kindly as any other. “Who steals my purse steals trash,” said Shakespeare, “but he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed.” No man is an island: we all depend in large measure on the esteem in which we are held by our peers. And the professional man needs his good reputation not only for his private peace of mind, but for his very livelihood. It is therefore not surprising that for many centuries the law has given the citizen a variety of remedies to protect him against the calumny of his enemies. The remedy which has survived best is that which we know today as the action for defamation, which entitles anyone to have his name cleared by the verdict of a civil jury, and to recover damages from anyone who has said or written about him that which would “tend to lower him in the estimation of right-thinking members of society generally”.
(Editor’s note. We are grateful to Paul Sieghart for this review. The law he describes is English law, and libel laws vary widely in different countries. We recommend the article to our international readership because the problems discussed are common to us all. R.C.M.)
1. Dr. Kindly is a devoted general practitioner. Among his patients is a temporary lady-friend of Jasper Howler, editor of the Daily Screech. The advice the doctor gives her is honest but unflattering, both to her and to her protector. Soon after, the Daily Screech prints a piece of ‘investigative journalism’, hinting (none too subtly) that the good doctor is a quack. CASE 2. Mr. Cutler Walpole has perfected h s operation for the removal of the nuciform sac in children to such a point that his private nursing home has a long waiting list, largely composed of the sons of oil sheikhs, and that he is driven to his consulting rooms in a Rolls-Royce with a Beiitley on top. The Bedpan, a respected medical journal edited by Dr. George Bernard Shaw, publishes a rigorous research paper which purports to show that removal of the nuciform sac has no detectable effect on the health of the children who are submitted to the procedure. Hard cases make bad law. Dr. Kindly will almost certainly win his libel action,
CASE
6 Gray’s Inn Square, London WClR SAZ.
99
DEVELOPMENTAL MEDICINE AND CHILD NEUROLOGY.
1976, 18
was a useless procedure, but also that he knew it was and did not therefore deserve his reputation as an upright and disinterested surgeon. The prospects of the defendants proving that much more than they ever said in the first place is clearly slender. True, the jury might take an adverse view of Mr. Cutler Walpole when they see him in the witness box, especially under cross-examination. But there is no certainty that they will, and if they do not they will probably give him even larger damages because the defendants persisted in calling him a quack at the trial. That problem is not of course a new one, nor is it confined to libel actions within the medical profession. Recognising this long ago, the law gave defendants a defence quite separate from that of ‘truth’: the defence of qualified privilege. That defence entitles a man not only to speak and write the truth with impunity at any time, but also on certain occasions to speak and write what he honestly believes to be true, even if he cannot later prove that it was. But what should those occasions be, if a just balance is to be struck? Clearly, not all occasions: otherwise I could safely go about destroying my neighbour’s good name merely because my instinct tells me that he is a bit of a crook. The occasions for this defence are therefore limited to those where I am under some legal or moral duty to give my honest view, even if the evidence on which I base it may not stand up in a court of law, and where the person to whom I express that view has a duty, or an interest, to hear or read what I say. The employer’s or banker’s reference is the classic example, but there are of course many others. And the defence of privilege is also available where I and those to whom I tell my tale have a common interest in its subject-matter. To complete the legal symmetry, there is one more complication: if I abuse the occasion, I lose my privilege. If, for
But, as with so many general principles, there are countervailing values which the law must also protect. Here, the most important is the value of freedom of speech: the right of anyone in a free society to speak and write the truth without fear of adverse consequences to himself. It is because of the conflict between these two values that the law, in trying to find a just balance between them, has regrettably become encumbered with a complex structure of rules, sub-rules, exceptions, and exceptions to exceptions. In an endeavour to simplify it, an official committee is appointed to review it every generation or so. The Porter Committee reported in 1948 and fathered the Defamation Act 1952. The Faulks Committee reported last year. One of the Faulks Committee’s recommendations is of particular interest to the medical profession, and to those who publish its professional journals. The problem, at its simplest, is how to ensure that Mr. Cutler Walpole will not win his libel action (and will therefore not even take the risk of starting it), without making it more difficult or risky for Dr. Kindly to win his. To understand how the problem arises, let us first see why Mr. Cutler Walpole could win at all. The burden is on him to show that people reading the offending issue of The Bedpan would think worse of him. That should not be a real obstacle: clearly they will. Those who know about his clinic and his practice will not need much imagination to conclude that he is a fraud, if indeed there is no virtue-for the patient-in the removal of the nuciform sac. The burden then shifts to the defendants-in this case, Dr. Shaw and the publishers of The Bedpan, and probably also the learned authors of the paper-to make good their right to tell the truth. But what truth? Mr. Cutler Walpole will say that they should only win if they can prove, not only that removal of the nuciform sac 100
P A I J I . SIEGHART
example, I harbour some personal spite against the person who later sues me, or if 1 have some extraneous axe to grind, the law will say that I am motivated by ‘malice’, and my defence of privilege will fall to the ground if the plaintiff can prove that I was. Let us therefore return to the case of Mr. Cutler Walpole. The defendants will say that they are medical men, and that they have a common interest with all other medical men to communicate to each other the results of research in medicine, and this includes the debatable subject of the nuciform sac. How else, they will ask, can the profession be informed about these results than by publication in that esteemed journal, The Bedpan ? This argument puts Mr. Cutler Walpole into a difficulty-unless, that is, he can show that Dr. Shaw or the authors of the paper harboured a personal grudge against him, or were trying to divert his patients to an expensive nursing home of their own by pouring scorn on his famous procedure, in which case he will win by proving malice-and probably quite right too (though even this is debatable). But he will have one shot left in his locker. He will point out, quite correctly, that The Bedpan is read not only by doctors, but also by nurses, hospital administrators, officials of the National Union of Public Employees and at least the three chiropodists whom he calls as witnesses. (The nuciform sac. I should have added for the benefit of those who did their anatomy before the days of Dr. G. B. Shaw, is located nowhere near the lower extremities.) While the publication to medical readers might be privileged, he will argue, the publication to the rest was not, and so the defendants have abused their privilege, and he should win. That argument, as the law stands today, might well succeed. The court would have
to decide whether, in all the circumstances, The Bedpan was the most (or perhaps the only) effectual medium for seeking to communicate with other doctors, without broadcasting the bad news about the nuciform sac (from Mr. Cutler Walpole’s point of view) to people who had no interest in receiving it. Much would depend on what other media were available: at all events, the defendants would have no certainty that they would win. That being so, and since the legal costs of a libel action can be quite astronomical, they will probably settle the action by paying him some damages, and apologising to him in open court. Now this is clearly not a very satisfactory position. There ought to be some protection for the publication of bona fide scientific research, without fear of expensive and unpredictable libel actions at the suit of someone about whose existence the researchers and their publishers may not even know when their results go out to the scientific world. And that is indeed one of the recommendations of the Faulks Committee. More precisely, what the Committee recommends is this: “The publication in a genuine technical or scientific journal of an article of a technical or scientific nature, should be protected by qualified privilege provided the journal in question is approved and registered with a government department.” (Faulks Committee Report, para. 232) At first sight, that proposal has many attractions. But it also presents some difficulties. What limitations, for instance, are to be placed on ‘technical’ and ‘scientific’? Is a hi-fi magazine a technical journal, or one devoted to theology a scientific one? More to the point, who is to decide such questions, and on what principles? The Faulks Committee envisage a register, to be maintained by some government department. They say that “the precise identity of the registration
DEVELOPMENTAL MEDICINE AND CHILD NEUROLOGY.
authority” should be a “matter for administrative decision by the Government”. But to whom are the officials, in whichever department is chosen, to be answerable if they decide to register The Bedpan, but not The Catheter? Parliament? The courts? Or no one at all? The privilege of publishing defamatory statements which may damage others without giving them the right to clear their name by the verdict of a jury is a dangerous one, not to be awarded lightly. Is it right that such an award should be in the hands of the Government, which might one day be tempted to dispense it to its political friends, and withhold it from its political opponents ? There is another problem. Scientific and technical communities are often small and inbred. In close and competitive societies, feelings often run high and support for different schools of thought becomes a matter of deeper conviction than the evidence for the rightness of their teachings alone might warrant. The law reports are spattered with libel actions between members of the same professional, scientific or technical discipline, in which half the leading figures of the breed gave evidence on one side or the other, leaving a confused judge and jury to choose between their forcibly expressed convictions. Even the medical profession has not always been free of such conflicts. When they erupt, it is rare indeed that the plaintiff does not charge the defendants with malice, since he is almost always genuinely convinced that the publication is only part of a
1976, 18
malign conspiracy against him, designed by those who envy his success to deprive him of the well-earned fruits of his pioneer work-as, for instance, on the nuciform sac. Would the Faulks proposals therefore really make a great deal of difference to the number of such actions which are brought-and fought ? Clearly something ought to be done to deal with the present problem. The trouble is that, in law reform as in medicine, one finds only too often that the solution of one problem can only be achieved at the cost of creating another. I find it hard to believe that the one under discussion here can only be solved by creating something which comes perilously close to Government censorship of scientific and technical journals. But, if that is the only way, is it worth the cost? Would the medical profession be happy with the thought that the editors of the B.M.J. and The Lancet-not to mention The Bedpan and The Cathetermust take pause before they pen their leading articles castigating the Secretary of State for his (or her) policy for the health services, lest they put at risk the licence which gives them a measure of immunity, of doubtful extent, from ill-conceived libel actions? At all events, there is a serious question to be debated here when Parliament can find the time to discuss the Faulks report as a whole. Regrettably, with the amount of business which it will have on hand in the foreseeable future, it seems unlikely that this will be soon.
REFERENCES [Porter Committee (1948)] Report of the Committee on the Law of Defamation; .Cmd. 7536. London: H.M.S.O. [Faulks Committee (1975)] Report of the Committee on Defamation; Crnnd. 5909. London: H.M.S.O.
102
Paul Sieghart
Special Article
The English Law of Libel and Medical Journals and quite right too. The trouble is that Mr. Cutler Walpole also has quite a good chance of winning his, and there lies the rub. Why do we have to have a law of libelor, more strictly, of defamation? The question is asked with irritation by defendants who have suffered at its hands -writers, publishers and editors who have had to pay damages. The answer is simple, and as well illustrated by the case of Dr. Kindly as any other. “Who steals my purse steals trash,” said Shakespeare, “but he that filches from me my good name robs me of that which not enriches him, and makes me poor indeed.” No man is an island: we all depend in large measure on the esteem in which we are held by our peers. And the professional man needs his good reputation not only for his private peace of mind, but for his very livelihood. It is therefore not surprising that for many centuries the law has given the citizen a variety of remedies to protect him against the calumny of his enemies. The remedy which has survived best is that which we know today as the action for defamation, which entitles anyone to have his name cleared by the verdict of a civil jury, and to recover damages from anyone who has said or written about him that which would “tend to lower him in the estimation of right-thinking members of society generally”.
(Editor’s note. We are grateful to Paul Sieghart for this review. The law he describes is English law, and libel laws vary widely in different countries. We recommend the article to our international readership because the problems discussed are common to us all. R.C.M.)
1. Dr. Kindly is a devoted general practitioner. Among his patients is a temporary lady-friend of Jasper Howler, editor of the Daily Screech. The advice the doctor gives her is honest but unflattering, both to her and to her protector. Soon after, the Daily Screech prints a piece of ‘investigative journalism’, hinting (none too subtly) that the good doctor is a quack. CASE 2. Mr. Cutler Walpole has perfected h s operation for the removal of the nuciform sac in children to such a point that his private nursing home has a long waiting list, largely composed of the sons of oil sheikhs, and that he is driven to his consulting rooms in a Rolls-Royce with a Beiitley on top. The Bedpan, a respected medical journal edited by Dr. George Bernard Shaw, publishes a rigorous research paper which purports to show that removal of the nuciform sac has no detectable effect on the health of the children who are submitted to the procedure. Hard cases make bad law. Dr. Kindly will almost certainly win his libel action,
CASE
6 Gray’s Inn Square, London WClR SAZ.
99
DEVELOPMENTAL MEDICINE AND CHILD NEUROLOGY.
1976, 18
was a useless procedure, but also that he knew it was and did not therefore deserve his reputation as an upright and disinterested surgeon. The prospects of the defendants proving that much more than they ever said in the first place is clearly slender. True, the jury might take an adverse view of Mr. Cutler Walpole when they see him in the witness box, especially under cross-examination. But there is no certainty that they will, and if they do not they will probably give him even larger damages because the defendants persisted in calling him a quack at the trial. That problem is not of course a new one, nor is it confined to libel actions within the medical profession. Recognising this long ago, the law gave defendants a defence quite separate from that of ‘truth’: the defence of qualified privilege. That defence entitles a man not only to speak and write the truth with impunity at any time, but also on certain occasions to speak and write what he honestly believes to be true, even if he cannot later prove that it was. But what should those occasions be, if a just balance is to be struck? Clearly, not all occasions: otherwise I could safely go about destroying my neighbour’s good name merely because my instinct tells me that he is a bit of a crook. The occasions for this defence are therefore limited to those where I am under some legal or moral duty to give my honest view, even if the evidence on which I base it may not stand up in a court of law, and where the person to whom I express that view has a duty, or an interest, to hear or read what I say. The employer’s or banker’s reference is the classic example, but there are of course many others. And the defence of privilege is also available where I and those to whom I tell my tale have a common interest in its subject-matter. To complete the legal symmetry, there is one more complication: if I abuse the occasion, I lose my privilege. If, for
But, as with so many general principles, there are countervailing values which the law must also protect. Here, the most important is the value of freedom of speech: the right of anyone in a free society to speak and write the truth without fear of adverse consequences to himself. It is because of the conflict between these two values that the law, in trying to find a just balance between them, has regrettably become encumbered with a complex structure of rules, sub-rules, exceptions, and exceptions to exceptions. In an endeavour to simplify it, an official committee is appointed to review it every generation or so. The Porter Committee reported in 1948 and fathered the Defamation Act 1952. The Faulks Committee reported last year. One of the Faulks Committee’s recommendations is of particular interest to the medical profession, and to those who publish its professional journals. The problem, at its simplest, is how to ensure that Mr. Cutler Walpole will not win his libel action (and will therefore not even take the risk of starting it), without making it more difficult or risky for Dr. Kindly to win his. To understand how the problem arises, let us first see why Mr. Cutler Walpole could win at all. The burden is on him to show that people reading the offending issue of The Bedpan would think worse of him. That should not be a real obstacle: clearly they will. Those who know about his clinic and his practice will not need much imagination to conclude that he is a fraud, if indeed there is no virtue-for the patient-in the removal of the nuciform sac. The burden then shifts to the defendants-in this case, Dr. Shaw and the publishers of The Bedpan, and probably also the learned authors of the paper-to make good their right to tell the truth. But what truth? Mr. Cutler Walpole will say that they should only win if they can prove, not only that removal of the nuciform sac 100
P A I J I . SIEGHART
example, I harbour some personal spite against the person who later sues me, or if 1 have some extraneous axe to grind, the law will say that I am motivated by ‘malice’, and my defence of privilege will fall to the ground if the plaintiff can prove that I was. Let us therefore return to the case of Mr. Cutler Walpole. The defendants will say that they are medical men, and that they have a common interest with all other medical men to communicate to each other the results of research in medicine, and this includes the debatable subject of the nuciform sac. How else, they will ask, can the profession be informed about these results than by publication in that esteemed journal, The Bedpan ? This argument puts Mr. Cutler Walpole into a difficulty-unless, that is, he can show that Dr. Shaw or the authors of the paper harboured a personal grudge against him, or were trying to divert his patients to an expensive nursing home of their own by pouring scorn on his famous procedure, in which case he will win by proving malice-and probably quite right too (though even this is debatable). But he will have one shot left in his locker. He will point out, quite correctly, that The Bedpan is read not only by doctors, but also by nurses, hospital administrators, officials of the National Union of Public Employees and at least the three chiropodists whom he calls as witnesses. (The nuciform sac. I should have added for the benefit of those who did their anatomy before the days of Dr. G. B. Shaw, is located nowhere near the lower extremities.) While the publication to medical readers might be privileged, he will argue, the publication to the rest was not, and so the defendants have abused their privilege, and he should win. That argument, as the law stands today, might well succeed. The court would have
to decide whether, in all the circumstances, The Bedpan was the most (or perhaps the only) effectual medium for seeking to communicate with other doctors, without broadcasting the bad news about the nuciform sac (from Mr. Cutler Walpole’s point of view) to people who had no interest in receiving it. Much would depend on what other media were available: at all events, the defendants would have no certainty that they would win. That being so, and since the legal costs of a libel action can be quite astronomical, they will probably settle the action by paying him some damages, and apologising to him in open court. Now this is clearly not a very satisfactory position. There ought to be some protection for the publication of bona fide scientific research, without fear of expensive and unpredictable libel actions at the suit of someone about whose existence the researchers and their publishers may not even know when their results go out to the scientific world. And that is indeed one of the recommendations of the Faulks Committee. More precisely, what the Committee recommends is this: “The publication in a genuine technical or scientific journal of an article of a technical or scientific nature, should be protected by qualified privilege provided the journal in question is approved and registered with a government department.” (Faulks Committee Report, para. 232) At first sight, that proposal has many attractions. But it also presents some difficulties. What limitations, for instance, are to be placed on ‘technical’ and ‘scientific’? Is a hi-fi magazine a technical journal, or one devoted to theology a scientific one? More to the point, who is to decide such questions, and on what principles? The Faulks Committee envisage a register, to be maintained by some government department. They say that “the precise identity of the registration
DEVELOPMENTAL MEDICINE AND CHILD NEUROLOGY.
authority” should be a “matter for administrative decision by the Government”. But to whom are the officials, in whichever department is chosen, to be answerable if they decide to register The Bedpan, but not The Catheter? Parliament? The courts? Or no one at all? The privilege of publishing defamatory statements which may damage others without giving them the right to clear their name by the verdict of a jury is a dangerous one, not to be awarded lightly. Is it right that such an award should be in the hands of the Government, which might one day be tempted to dispense it to its political friends, and withhold it from its political opponents ? There is another problem. Scientific and technical communities are often small and inbred. In close and competitive societies, feelings often run high and support for different schools of thought becomes a matter of deeper conviction than the evidence for the rightness of their teachings alone might warrant. The law reports are spattered with libel actions between members of the same professional, scientific or technical discipline, in which half the leading figures of the breed gave evidence on one side or the other, leaving a confused judge and jury to choose between their forcibly expressed convictions. Even the medical profession has not always been free of such conflicts. When they erupt, it is rare indeed that the plaintiff does not charge the defendants with malice, since he is almost always genuinely convinced that the publication is only part of a
1976, 18
malign conspiracy against him, designed by those who envy his success to deprive him of the well-earned fruits of his pioneer work-as, for instance, on the nuciform sac. Would the Faulks proposals therefore really make a great deal of difference to the number of such actions which are brought-and fought ? Clearly something ought to be done to deal with the present problem. The trouble is that, in law reform as in medicine, one finds only too often that the solution of one problem can only be achieved at the cost of creating another. I find it hard to believe that the one under discussion here can only be solved by creating something which comes perilously close to Government censorship of scientific and technical journals. But, if that is the only way, is it worth the cost? Would the medical profession be happy with the thought that the editors of the B.M.J. and The Lancet-not to mention The Bedpan and The Cathetermust take pause before they pen their leading articles castigating the Secretary of State for his (or her) policy for the health services, lest they put at risk the licence which gives them a measure of immunity, of doubtful extent, from ill-conceived libel actions? At all events, there is a serious question to be debated here when Parliament can find the time to discuss the Faulks report as a whole. Regrettably, with the amount of business which it will have on hand in the foreseeable future, it seems unlikely that this will be soon.
REFERENCES [Porter Committee (1948)] Report of the Committee on the Law of Defamation; .Cmd. 7536. London: H.M.S.O. [Faulks Committee (1975)] Report of the Committee on Defamation; Crnnd. 5909. London: H.M.S.O.
102
