“Scientific controversies must be settled by the methods of science rather than by the methods of litigation. ... More papers, more discussion, better data… — not larger awards of damages — mark the path toward superior understanding of the world around us.”
Judge Easterbrook J, US Court of Appeal1
Recently, a new defence to defamation has become available for peer-reviewed academic and scientific articles. The defence in section 30A of the Defamation Act 2005 (Vic) (Act) and equivalent legislation in all other jurisdictions except WA and NT, is available if the defendant proves:
- The matter was published in a scientific or academic journal; and
- The matter relates to a scientific or academic issue; and
- An independent review of the matter's scientific or academic merit was carried out before the matter was published by a person with expertise in the scientific or academic issue concerned.
The defence would have been useful for leading scientific journal, Nature, in the English case of El Naschie v Macmillan Publishers Ltd2, in which a structural engineer sued Nature for a 2008 article criticising the integrity of his work. The Court found that the article was defamatory but was defensible on the grounds that it was substantially true and in the public interest, but a section 30A-type defence could have stymied the case at the outset, rather than Nature being put to the lengthy and costly process of proving truth and public interest at a trial.
Other cases in which publishers could have benefitted from this type of defence are:
- In Australia, the owner of the land on which the Bluesfest music festival was held sued ecologist Dr Stephen Phillips for his paper written in Australian Mammalogy which claimed that noise from the music festival had destroyed the local koala population.3
- The British Chiropractic Association sued scientist Dr Singh for writing it offered "bogus treatments".4
- Medical device companies have sued a cardiologist for questioning the data behind a device being used to close a hole in the heart5 and Swedish scientists for claiming there was "no scientific evidence to support" devices marketed to detect deception in voices being used to detect benefit fraud in the UK.6
Why experts need free speech
As experts questioning each others' work is fundamental to the scientific method, experts need to feel free to speak openly and critically in their field of expertise without fear of being sued for defamation. The High Court came to this conclusion in the 2021 decision in Ridd v James Cook University (Ridd),
But a marketplace of ideas in its purest form equates expert opinions with those of non-experts. In the Digital Age when non-expert opinions swamp those of experts online, those with little to no scientific training in the field under discussion may have difficulty filtering the truth from a saturated market of misinformation.
Mill understood this and advocated for intellectual elites to be exempt from the "tyranny of the majority", rather than for unlimited speech for all individuals. Mill warned in On Liberty against the chilling effect of societal pressure on innovators to conform to the status quo, and argued that liberal democratic societies work best when "the sovereign many let themselves be guided, which in their best times they always have done, by the councils and influence of a more highly gifted and instructed one or few".
The digital age has brought this into sharper focus and the High Court recently recognised this privilege for experts speaking about their field of expertise in Ridd and last year the legislature went some way to enacting it in section 30A of the Act.
But the privilege afforded to experts is a limited one. First, it is restricted to publications in "scientific or academic journals" that are "peer reviewed". The Act contains no definitions of "scientific", "academic" or "journal". Traditional peer reviewed journals will be captured, but there is some risk that journals purporting to be scientific or academic that were not previously peer-reviewed will cynically seek to take advantage of this defence by becoming "peer-reviewed". Courts ought to be able to deal with this by consideration of whether the publication indeed engaged with the tenets of the scientific method in publishing its "science" and held itself to the rigours of academia in producing its "academic" material. But books, social and traditional media is not covered.
The peer review defence
In order to classify as having undergone "peer review", the review must simply have been undertaken by an "independent" person with "expertise" in the field. Court's will likely impose a rigorous test of independence and expertise.
But once these criteria are met, section 30A(3) extends the defence to fair summaries, or fair extracts of the article, so those wishing to disseminate their views to a wider audience may do so if they first publish them in a peer-reviewed journal. It is this combination of the new defence and the liberty to republish more broadly that makes this defence truly worthwhile. So long as experts get the order right - peer review journal first, social media and media second, they should feel free to publicise their views to a wide audience without fear of defending lengthy and costly defamation proceedings. They may still be sued by zealous litigants, but the new defence will hopefully curtail the need for detailed evidence on issues such as truth and public interest, which are defences available to the public at large. In the right circumstances, the section 30A defence could be heard as a preliminary issue to dismiss the proceedings in a relatively straightforward manner, without needing to test the other available defences.
The second limitation to the defence is found in subsection 30A(5). It provides that the defence is defeated if the plaintiff proves the article was not published honestly for the information of the public or the advancement of education. In other words, the defence is not a shield for malicious attacks on others, which the author does not genuinely believe to be true or important to advance their field of expertise.
Lessons for expert publishers
While there are yet to be any cases testing the new defence, rising misinformation by self-styled but unscientific experts in mainstream media and social media highlights the need for this defence. Experts ought to be emboldened not only to publish liberally and critically of others, but to repeat their claims in mainstream and social media so as to combat this misinformation.
Misinformation is difficult to regulate, as the Australian government learned last year when it abandoned its attempt to do so, but providing privileges to experts which unqualified influencers don't have, should level the playing field to allow defamation claims to weed out misinformation, on the one hand, and protect scientific opinions and data on the other.
Whether the author is from a university or educational institution, the healthcare profession, or a specific technical field such as structural engineering as tested in El Naschie v Macmillan Publishers Ltd, having academic work published in a peer reviewed journal, before taking critical claims mainstream, is a sensible step to ensure the availability of this additional defence in any defamation proceedings.
Footnotes:
1 22 F 3d 730 (7th Cir, 1994)
2 [2012] EWHC 1809 (QB). I acknowledge the work of Sharon Rodrick for compiling the cases referred to in this article in A defamation defence for scientific or academic peer review: The new s30A in the Torts Law Journal (2024) 29 TLJ 160.
3 Noble v Phillips [2017] NSWSC 121; Noble v Phillips (No 2) [2018] NSWSC 25; Noble v Phillips (No 3) [2019] NSWSC 110.
4 [2011] 1 WLR 133 (BCA)
5 S Boseley, 'US company suing British doctor for libel goes out of business', The Guardian (online, 22 April 2011) https://www.theguardian.com/uk/2011/apr/21/us-company-suing-doctor-libel
6 A Ho, 'Brouhaha Over Controversial Forensic Technology: Journal Caves to Legal Threat', Science (online, 10 February 2009) https://www.science.org/content/article/brouhaha-over-controversial-forensic-technology-journalcaves-legal-threat. While most companies are not able to sue for defamation in Australia, that does not stop them bringing proceedings overseas, or individuals within the company claiming they have been defamed by the questioning of their work.
7 (2021) 274 CLR 495 at [31].
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
