Defamation update part two: High Court’s first consideration of s 6 Defamation Act 2013 (peer-reviewed statements in scientific or academic journals)

In the first article of this two-part series, we looked at the court’s treatment of the public interest defence (s.4 of the Defamation Act 2013), on which the publishers of the Mail on Sunday (and its health editor) had relied, in a significant judgment handed down by the High Court on 25 June 2024. In this article, we explore the court’s treatment of the defence of privilege for a report of a peer-reviewed scientific article (s.6 of the Act) in the same judgment. In contrast to the public interest defence, this defence was upheld. This is significant, as it represents the first time that this defence has been considered in court since the Defamation Act was enacted in 2013.

Background

Our first article summarised the background to this case, which related to articles published by the defendants about statins. The claimants were a professional researcher, writer and public speaker on diet health and nutritional science, and a general practitioner, writer and lecturer with a particular interest in the epidemiology of cardiovascular disease.

The claimants argued that on their natural and ordinary meaning, the articles complained of suggested the claimants were liars, they were putting many people in Britain at risk, they were contributing to a public health catastrophe and, in the case of the general practitioner, that he was unfit to practise medicine.

The statutory qualified interest defence

S.6 provides that the publication of a statement in a scientific or academic journal (and, as such, the publication of a fair and accurate copy of, extract from or summary of such statement) is privileged if certain conditions are met. Those conditions are that (i) the statement relates to a scientific or academic matter and (ii) before the statement was published in the journal, the editor of the journal and one or more persons with expertise in the scientific matter concerned carried out an independent review of its scientific or academic merit.

In his interpretation of s.6, Nicklin J noted that the requirement for an independent review, is to be interpreted as requiring a review by an individual who is independent from the author(s) of the paper, rather than requiring the individual to be independent from the journal itself. A requirement that the review be independent from the journal too would mark a departure from the peer-review process carried out by the majority of journals.  The reference in s.6 to the “editor” of the journal being one of the people by whom the “independent” review should be carried out supports this.

The claimants argued that the protection afforded by s.6(5) to the publication of copies, extracts or summaries applies only when they are published in the same journal. Nicklin J did not agree. On the contrary, if Parliament had wanted to limit the privilege provided by s.6(5) in the way the claimants suggested, they could have done so explicitly. By limiting the privilege in this section to the original publisher, any wider discussion of the statements would be left without protection – this, Nicklin J concluded, would be “absurd”.

In contrast to the claimants’ suggestion that s.6(5) should be so narrowly interpreted, Nicklin J referred to commentary by promoters of the draft Defamation Bill when it was introduced in May 2012, which makes clear that the Government intended s.6 to protect and encourage “robust and open scientific debate” to ensure people are “at liberty to debate a subject without fear or favour”. Once the academic or scientific value of the statement is established, its publication to the wider public should be privileged because people tend to obtain information about science or academia through mainstream media, rather than specialist journals themselves.

The judgment also refers to the Joint Committee’s Report on the Draft Defamation Bill, published in 2013, in which reference was made to “convincing evidence that defamation law is being used to silence responsible members of the medical and scientific community in order to protect products and profits”, resulting in significant issues not being discussed publicly (or at all).

Nicklin J therefore rejected the claimants’ argument as to the construction of s.6(5), holding that if the defendants were able to establish the necessary elements of the defence under s.6, they could rely on s.6(5). The defendants’ s.6 defence was therefore upheld in relation to certain extracts within the articles that referred to a scientific paper published by the London School of Hygiene and Tropical Medicine regarding the impact of statin-related media coverage on the use of statins.

Comment

It is helpful to now have the court’s commentary on a relatively rarely litigated part of the Defamation Act 2013. The court’s judgment should give scientists and other academics confidence that they can engage in public scientific and academic debate, provided they do so “responsibly and honestly” (and in accordance with the conditions set out in s.6), without being silenced by defamation law. Those hoping to rely on this defence in relation to a scientific or academic journal should ensure they have a clear peer review process that is free from conflicts of interest and objectively fair. Publications other than specialist journals will also be afforded protection in the event that they publish fair and accurate copies, extracts or summaries of the peer-reviewed statement in question.

The full judgment can be found here. The first article in this series, in respect of the public interest defence (which failed), can be found here. The defences of truth and honest opinion are to be determined at a second trial.