Looking “Beyond the Hype”: does this book contain defamatory material?

NOTE: the illness termed “myalgic encephalomyelitis (or encephalopathy)/chronic fatigue syndrome” or “ME/CFS” by England’s National Institute for Health and Care Excellence (NICE) is the subject of a confusing array of names and case definitions. For the purposes of this blog, it is ME, the complex, multi-systemic neuroimmune disease with which I have lived since 1981. Follow link here for more information about ME and About for more details about my work.

********************************

THE BOOK

On 7 April 2022, Elliott & Thompson published a book called “Beyond the Hype: The Inside Story of Science’s Biggest Media Controversies” by Fiona Fox. Ms Fox, whose background is in media relations, is the chief executive of the UK’s Science Media Centre (SMC), having been a founding director at its inception in 2002.

The book is a personal memoir (indexed but unreferenced), in which the author recounts events during her time at the SMC and reflects on her experiences.

The chapter on “ME/CFS”

The book contains eleven chapters, each on a different topic. Chapter 3 of the book occupies pages 63-88 in the hardback edition. It is entitled “FIRST THEY CAME FOR THE COMMUNISTS The bitter row over ME/CFS research.”

This chapter title is taken from a translated poem by Pastor Niemöller about the rise of fascism in Germany during the 1930’s. In context, the use of this title is highly inflammatory as it suggests that a particular class, which the author loosely describes as ME/CFS “activists” and “campaigners”, can be likened to Nazis.

Is it capable of being defamatory?

I first looked at this chapter a few days ago and set out my initial impression in a Twitter thread. Since then, I have examined it in more detail and adjusted my view accordingly.

Whether or not this chapter contains defamatory material would ultimately be for a court to determine, should it ever reach that stage. My view is that there is at least an arguable case that it does and that it could fulfil the “serious harm” requirement (a very high threshold).

I would also argue that the available defences in the 2013 Defamation Act (truth, honest opinion, public interest) would have a limited, though not negligible, chance of success against a defamation claim.

Other experts may take a different view.

The overall impression from this chapter is of a polemic against many members of the ME patient community, not just activists and campaigners. It also appears to extend to a number of parliamentarians, as well as some members of the NICE guideline committee who were involved in the development of the 2021 updated guideline for diagnosis and management of ME/CFS.

Paragraph 1.1.2 of the NICE guideline refers to the patient community in these terms:

[P]eople with ME/CFS may have experienced prejudice and disbelief and could feel stigmatised by people (including family, friends, health and social care professionals, and teachers) who do not understand their illness.

No mention of fascist tendencies.

Who can make a claim?

Defamation claimants must be identifiable within the body of the text in order to commence proceedings. While the author is careful not to name anyone directly, there is specific identifying material in this chapter, in the form of unattributed direct quotes and imputed actions by a range of clearly identifiable individuals and groups.

The legal system in England and Wales does not have American-style “class actions”. Whilst a group of claimants might be identifiable in a defamation action, each person has to make their own individual claim. A group of related claims might then be consolidated pre-trial.

********************************

WHAT COULD HAPPEN NEXT?

Individual action

Anyone who feels that they are an identifiable potential claimant should seek independent advice from a firm of solicitors/public access barrister specialising in media law.

• A formal consultation can range from a few hundred to a few thousand pounds, depending on the seniority of the lawyer and volume of paperwork considered.
• Action should be commenced in the English courts.
• The time limit for commencing action is one year from the date of publication.

Note of caution: legal action is prolonged (years), expensive (very, although this can sometimes be defrayed), risky and highly stressful. It is not something to be undertaken lightly.

Collective action (non-legal)

I set out my suggested course of action in a tweet two days ago as follows:

The ME orgs make a combined robust, formal complaint to author/publisher/SMC on the basis of unbalanced and offensive depiction of the patient community and/or issue a joint statement via eg. a letter to @thetimes with the aim of generating a constructive news story.

There is an argument that this chapter is best left alone and that it is better not to draw any further attention to it. My opinion is that it has crossed a line (hence why I am writing this post) – but others will take a different view. 

Poor judgment?

My final observation is that, regardless of whether or not this chapter contains defamatory material, its tone is very ill-advised. This raises the inevitable question of whether someone who is capable of demonstrating such poor judgment should have remained as chief executive of such an influential media organisation for the last twenty years.

********************************

About me

I have lived with ME since 1981. I am a barrister and a Visiting Scholar at the Centre for Commercial Law Studies, Queen Mary University of London. I am a member of the Technology, Media and Telecomms Law Institute there. 

For more information see the About section of this blog.

DISCLAIMERS

1. I cannot provide any individual with professional legal advice. The views expressed here are purely informal and do NOT constitute formal legal advice.
2. Whilst I have glanced very briefly at the rest of “Beyond the Hype”, my comments here relate ONLY to the chapter on “ME/CFS”.

***********************************