Libel and Science: Not Happy Bedfellows

(Yes, this is my third blog entry in as many days. You might almost think I'd finished the BVC.)

Since I proclaim this to be an IP and Technology Law blog it might seem odd to talk about Libel. True, libel tends to be seen these days as part of the wider field of Media Law, itself a close cousin to IP. Nonetheless it is not an area I have taken much interest in beyond the curiosity most of us have about an area of law that positively excels in the parties being even ruder about each other than normal.

One case has changed that, however: British Chiropractic Association v Singh. As has been extensively reported, the BCA is suing science writer Simon Singh over an article he wrote for The Guardianlast year, in which he cast doubt in the strongest terms over the BCA's claim that chiropractic - a form of 'complementary medicine' that involves manipulating the spine - could help with childhood diseases such as colic. Now, I came into law from a scientific/engineering background, and perhaps rather naively I tend to assume that they way you settle scientific disputes, as distinct from ones about negligence, contracts or badly-placed hedges, is by rational argument on the basis of the evidence. The BCA beg to differ, and have sued Singh.

Why am I interested? For one thing, I enjoy Singh's writing. For another, I was at Imperial College with Singh back in the late 1980s, and although I can't say we knew one another well I'll confess to a degree of loyalty to a fellow alumnus. Above all though I consider it profoundly wrong that defamation law is being used to substitute for scientific debate.

Much, much more detail about the case than I can go into here has been posted by Jack of Kent; see his blog for updates and links to the now very extensive coverage of this issue in the wider press. I am writing this though because BCA v Singh has been an eye-opener for me as to some of the more disturbing aspects of defamation law. It is strange enough that, unlike in most other causes of action, the burden of proof lies principally on the defendant. It is even more disconcerting when that burden is pushed to almost insurmountable levels by preliminary rulings that can define the scope of the alleged libel in terms that the defendant may be wholly unable to prove. Finally, whilst all litigation can be expensive, the costs of libel cases in England can be positively ruinous; a recent study by the University of Oxford found that a libel trial in England typically costs 140 times the average cost in the rest of Europe.

Whatever the issues with libel trials in general though, it above all remains wholly inappropriate to use this cause of action to stifle scientific debate. A positively stellar list of luminaries has signed a statement to this effect; ten thousand more readers have added their names, myself amongst them. The progress of science and medicine depends on open, frank discussion of the merits and hazards of treatments, be they conventional or complementary. Seeking to suppress such discussion helps no-one.

Singh is currently seeking leave to appeal the preliminary ruling in this case. I am sure Jack of Kent will be first with news whatever happens. In the mean time I earnestly hope for an outcome that is not only good news for Singh but also good news for everyone who writes about contentious aspects of science.

Digital Britain meets Amendment 138

The Government's Digital Britain report came out yesterday (download a copy from here) and has already drawn comment from several of my fellow bloggers (panGloss and Technollama in particular). Given my involvement in ORG's analysis of the Telecoms Package, my particular interest is in how far this report goes in acknowledging the concerns ORG raised, especially in relation to so-called 'Three Strikes' sanctions for alleged copyright infringement.

The first main area of interest is actually from near the end of the report. Chapter 8, on Digital Government, places great store on the extent to which essential government services will increasingly be delivered online. Indeed, the report refers to a 'Digital Switchover' of such services, akin to that already taking place for analogue broadcast. This is relevant because it emphasises just how serious a sanction disconnection from the Internet would be in such a world. As para 8.16 notes, candidates for early switchover include electoral and school registration and debt and redundancy advice; denying access to such services would very much engage human rights concerns. This may be why Chapter 4, relating to creative industries, is not as draconian as some observers may have expected; there may well be growing awareness within government that if 'digital exclusion' is seen as a social ill, it is hardly appropriate to wave it as a potential sanction.

Turning to Chapter 4, other commentators have noted that the report acknowledges rights-holder claims of economic damage through file-sharing. Having said that, it's worth noting that it does not do so uncritically - para 4.17 is careful to use qualifiers such as 'indicated' and 'claim'. Nonetheless, HMG sets out its position firmly in the next paragraph, describing online piracy as a 'serious offence' and stating that a 70-80% reduction should be the government target. It goes on to dismiss the views of the 'minority of the anarchic'; I wonder if this part of the report was written before or after the Swedish Pirate Party got their first MEP? Now, I don't agree with the PP's position, but its electoral success in Sweden (and this report harps on a lot about looking to Scandinavian and Nordic models for IPR reform) does indicate a significant degree of public unhappiness and disengagement with mainstream views of IPR, and I'm not sure such positions should be dismissed rather than engaged with.

As to practical measures, the report calls for an industry body to be set up under legislative oversight to address rights issues. This is in line with proposals in the Telecoms Package to "promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the promotion of lawful content in electronic communication networks and services" (in the Universal Services Directive). What about sanctions, though? Much discussion has been of the 'Three Strikes and you're Out' model proposed by the French Government under the recently-failed HADOPI legislation, that would have an escalating series of notifications and warnings upon allegation of copyright infringement culminating in disconnection. What we see in the Digital Britain report is rather different though. As per the box on page 113, following para 4.31, the proposal seems to be for notification and warning accompanied by collection of evidence to be made available via court order. One might term this 'Two Strikes, Then We Let Someone Sue You'.

The report goes on to list other sanctions that might be brought into play if this approach does not lead to the desired reduction in file-sharing. The first point is that this implies that it is anticipated that legal action will be via conventional channels and sanctions, i.e. damages where infringement is proven in court. Secondly, even the prospective future measures seem to stop short of disconnection. They included throttling, shaping and various targeted blocking approaches that seem aimed at limiting Internet access to certain sites or services rather than stopping it altogether. It's also not clear though whether these sanctions will come as the third 'strike', via court order, or as a consequence of one of the earlier warnings, at the behest of the ISP.

Now, how does this tie in with the successful campaign to save Amendment 138, the EUP-sponsored provision that would require sanctions to be in accordance with due legal process? As passed by the EUP in May, the Amendment incorporates the following text into Article 8(4)(h) of the Framework Directive:

"applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent"

As the late Professor Joad would have put it, it all depends on what you mean by "fundamental rights and freedoms of end-users". If you confine these to the right to have Internet access at all, as hinted at by Chapter 8's discussion of ubiquitous and essential digital services, then Chapter 4's proposals probably are compliant with Amendment 138. There is no suggestion that Internet access would be cut off altogether, even for the most persistent offenders (although they might be sued into penury). However, if you take a wider view, you might argue that the other sanctions discussed such as constraining or blocking certain services might well be an infringement, and given that it seems that these will be 'strike 2', at the ISP's discretion, rather than 'strike 3' after a court order, then on such an interpretation they would not be compliant with Amendment 138.

To summarise, what we have here is a report that seems to acknowledge the folly of threatening total disconnection from the Internet as a sanction for alleged rights infringement, and which puts forward proposals that would, as per Amendment 138, require a judicial ruling before opening up alleged file-sharers to serious sanctions. What is not clear, however, is whether this also applies to other technical measures such as blocking or throttling, and this is a point on which further consultation should concentrate.

Hoffman on Laddie on Trade Marks

I've writter before about the legacy of Sir Hugh (formerly Mr Justice) Laddie, and his contribution to the development of IP law. This evening saw the first Sir Hugh Laddie Lecture at the Institute of Brand and Innovation Law he founded at UCL, featuring Lord Hoffman on the topic of Sir Hugh's dealings with the ECJ on the question of what exactly was the function of a trade mark.

It was a very good talk, and a fitting tribute to Sir Hugh. As Lord Hoffman readily admitted, it did not contain much in the way of radical revelation into trade mark law. Rather, he sought to trace the development of the tension between the English and European courts as to trade mark function via a series of cases in which Laddie J (as he then was) had been involved.

Now, it was clear from this that Lord Hoffman was setting out to tell us a story, and when you are being told a story it's important to bear in mind that the narrator will inevitably be imposing some sort of narrative structure and goal on it, if only to make sure that it is a story. Here, the narrative was very much the doughty English judge defending the traditional view of a trademark purely as a badge of origin against the encroaching European tide of wider trade mark function. This isn't to say that Lord Hoffman is anti-European; rather, he was to an extent telling the story of how a friend of his had done battle to preserve the understanding of what a trade mark was for that had dominated English IP law since the 1938 Trade Mark Act. That Act had made it clear that a trade mark had one role and one role alone: to indicate to a buyer where goods had originated. The 1994 Trade Mark Act, by implementing the common EC Directive on trade mark law, imported a new approach with more than a whiff of the traditional Benelux approach of viewing a trade mark as having aspects more akin to a brand.

Matters came to a head with the famous (or infamous, depending on your point of view) case of Arsenal v Reed. It was clear from Lord Hoffman's summary of the facts where his sympathies lay; as he put it, by selling scarves bearing the word (and trade mark) 'Arsenal', Mr Reed was simply saving his customers from scrawling the club's name on a blank scarf rather than asserting that his goods originated with the Gunners. Laddie J had felt much the same way, but had been obliged to refer the point to the ECJ. The A-G's Opinion had been sympathetic, and the ECJ had seemingly taken it aboard - but then found that in the current case, Mr Reed's actions in fact were trading on the reputation of Arsenal's trade mark. When the case returned to England, Laddie J promptly held that the ECJ had made a finding of fact - which was his job - and for the first and apparently only time anywhere refused to follow the ECJ. The Court of Appeal later took a rather more diplomatic (I've heard other words used) approach, and in the end Mr Reed lost. But Arsenal v Reed - along with cases on repackaging of drugs - brought home how much the 1994 Act had changed trade mark law, and how difficult it was to preserve the traditional narrow interpretation in English law of the function of a trade mark.

So what do we take from this? As I said, Lord Hoffman's narrative was clear. I can imagine of course a corresponding talk by a senior ECJ jurist taking, as its narrative thread, the steady exposure of England's old-fashioned and eccentric interpretation of what a trade mark was for in the face of sensible efforts to harmonise European law in this area. But it's hard to disagree with Lord Hoffman's closing comment that if, in implementing the Trade Marks Directive, Parliament had meant such a fundamental change away from a narrow right towards broader protection of what are in effect brands, then it should have clearly said so. All in all, an interesting and thought-provoking evening, and I hope that the Laddie Lecture goes on the way it started.