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You might imagine that medical journals publish whatever they deem appropriate in the best interests of scientific debate? You’d be wrong. The BMJ and The Lancet have a weekly ritual whereby editors contact libel lawyers to advise on articles that they are about to publish. The editors of these world-renowned journals are conscientious professionals doing their best to publish material of relevance to their readers and improve patient care.
You might not always agree with what is published but I wouldn't doubt the motivations behind publication. These journals want to raise issues that matter, and often issues that matter are the most controversial and provocative. Nor do the libel lawyers want to prevent publication, though I guess some of you will take a more cynical view. Yet, too often, publication is prevented or watered-down because of the United Kingdom's libel laws.
This doesn't necessarily mean that the intended article is inaccurate or defamatory of an individual or a company. What it does mean is that a judgment has been made by the editors, based on the advice of their libel lawyers, that publication in the intended form will place the publication at risk of litigation. And this is where the issue becomes truly unsatisfactory.
Most journal editors, certainly of major UK journals, are not risk-averse people. A good editor or journalist will publish articles that upset some readers and organizations. But the risk of litigation is also a substantial financial risk, and editorial decisions are complicated by the prospect of financial ruin for the publication. The sums involved in fighting a libel action – the UK's costs are 140 times more than the average in the rest of Europe – are simply unbearable, even for publications of the size of the BMJ and The Lancet. The only way a journal can fight such an action is by relying on its insurance policy, but insurers expect that any potential risk identified by the libel lawyers is eliminated.
Ultimately, the UK libel laws boil down to a simple calculus: does your adversary have more financial clout than you? Our libel laws don't protect reputations; they protect the status of the rich and the powerful, and indulge the dangerous enthusiasms of mischief-makers. It's too easy to launch a libel action and the burden of proof is on the defendant. Our libel laws are notorious around the world. They encourage libel tourism, whereby overseas companies find imaginative methods to launch a libel action in the UK and oppress their enemies. They suppress the debates on science, medicine, and better patient care. Editors may never commission articles or have to pull others. Medical research and patient care are both affected.
The fear of libel is killing scientific debate in medical journals. I was on the receiving end of a libel action by one of the world's largest companies during my time at the BMJ. It isn't a pleasant experience but it does remind you of the importance of free speech. There are times when journals aren't quite able to say what they want to say, and risk patients being harmed, because of our libel laws. At the JRSM, we also run potentially contentious articles past our libel lawyers. This happens less frequently here but the implications for the JRSM are far greater as this is a smaller and poorer journal than the BMJ and The Lancet.
We do need libel laws but currently they benefit the powerful and distort the debate on science and medicine. They might even cause harm. The Libel Reform Campaign has launched a national petition to influence parliament to amend our libel laws (http://www.libelreform.org). I urge you to support it.