I was wrong.
I know it doesn’t happen that often, but I’m forced to admit it. I was wrong. I predicted that Simon Singh would likely lose his appeal against an astonishing illiberal ruling on his libel case by Sir David Eady. Singh, as you may recall, is the British science writer who wrote a now infamous article about chiropractic, in particular, Singh labeled claims that chiropractic could treat colic, sleeping and feeding problems, ear infections, asthma, and prolonged crying as “bogus.” Specifically, he wrote that the British Chiropractic Association “happily promotes bogus therapies.” The BCA sued him for libel, claiming that this statement implies that they knowingly and dishonestly promote therapies that don’t work. Singh countered that such was not his intent; rather, his view is that they believe in these nonsensical (i.e., “bogus”) claims and that’s why they happily promote them. Unfortunately, based on a narrow, highly legalistic interpretation of the use of the word “bogus,” Judge Eady ruled in favor of the BCA, namely that Singh meant that the BCA was knowingly promoting false claims.
This ruling put Singh in a bad situation. As I’ve pointed out numerous times before, be it discussing Singh’s case or, for example, Holocaust denier David Irving’s libel suit against Holocaust historian Deborah Lipstadt, British libel laws are hopelessly biased in favor of the plaintiff. In practice, they in essence necessitate that the defendant prove that what he wrote was true, rather than putting the burden of proof on the plaintiff to prove that what was written was either false or written with a reckless disregard for the truth. Worse, it’s possible for a plaintiff to claim jurisdiction in the U.K. if even a single book or article is sold there or even if, as is true of any website, the article can be read by people in the U.K. The odds were seriously stacked against Singh, and the BCA was trying to portray Judge Eady’s ruling as being vindication of its woo.
Indeed, at the time, I pointed out that, if it were me, I’d probably have settled. Not only were the odds long against him, given Judge Eady’s ruling, but the expense of pursuing a defense against libel in the U.K. is incredibly onerous, far more expensive than most other European Union countries. The technical ruling on the meaning of the word “bogus” had painted Singh into a corner, and no one would have blamed Singh if he had decided to try to settle. Certainly I wouldn’t have. Fortuntely, Singh is made of far sterner stuff than I am. Despite the odds, despite the expense, he decided, in essence, to appeal for the right to appeal.
And he actually won:
A science writer has won the right to rely on the defence of fair comment in a libel action, in a landmark ruling at the Court of Appeal.
Simon Singh was accused of libel by the British Chiropractic Association over an article in the Guardian in 2008.
Dr Singh questioned the claims of some chiropractors over the treatment of certain childhood conditions.
The High Court had said the words were fact not opinion – meaning Dr Singh could not use the fair comment defence.
However, the Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley ruled High Court judge Mr Justice Eady had “erred in his approach” last May, and allowed Dr Singh’s appeal.
BBC News science correspondent Pallab Ghosh says that, had Justice Eady’s ruling stood, it would have made it difficult for any scientist or science journalist to question claims made by companies or organisations without opening themselves up to a libel action that would be hard to win.
This ruling, alas, is not the end of the road. In any reasonable legal system, the BCA’s claims would never have made it past a preliminary hearing. Instead, in the U.K., it has thus far cost Â£200,000 “just to define the meaning of a few words,” as Singh has put it.
It is very clear that the U.K.’s libel laws are in serious need of reform. As it stands now, they are far too easily abused in order to stifle legitimate criticism of cranks of all stripes. I’m glad to see that Singh has managed to win a battle. Unfortunately the war is far from over.
32 replies on “A battle won for free speech and science, but the war remains”
That creaking, splintering sound you heard was the rotten structure of British libel law, taking a blow from a trebuchet projectile.
This is good news, though only a small step. Hopefully the rest of the rotten structure will come down.
It’s a hopeful sign.
I continue to hope Mr Singh is vindicated.
The full judgment is available here.
I expected the good result because Mr Justice Eady’s interpretation was clearly perverse AND (more importantly I think) the Court of Appeal had overturned previous perverse judgements of Eady in other cases and written the judicial equivalent of “what the **** were you thinking, you idiot?” passages in their rulings.
Notwithstanding the appalling libel laws, the English legal system tends to be less obsessed with the minutiae of procedure, sections and subsections, precedent etc. than the American legal system so is (arguably) better suited to coming up with a just result (rather than a legally correct – in some meaning of the word “correct”! – result).
Regarding libel laws in England and Wales (I don’t know about Scotland; its legal system is separate) there are two clear issues which need to be addressed: the excessive cost (and delays) in pursuing or defending cases, and the idiotic rules on jurisdiction (allowing libel tourism).
On the proof side, be careful what you wish for!
Yes, it is absurd that the defendant must prove the truth of what he has written; that is clearly too onerous. It nearly did for The Graudian in its libel defence against Jonathan Aitken MP, who was later jailed for perjury. They were saved by somebody finding a receipt in a box in the cellar of a hotel in Switzerland, proving that Aitken was lying.
But we don’t want to swing too far the other way – it is important that our tabloid gutter press is not free to invent any old rubbish and defend it on the basis that “it could have been true, guv” or some variant of fair comment (or public interest, coz the public is interested!).
Ten to twenty years ago we had a series of huge libel payouts against tabloid newpapers because they were making up stories about pop stars and other celebrities, and these judgements were clearly punishment from annoyed juries (the amount of the payout was determined by the jury or ordinary folk in each case) for the tabloids being pure evil.
So we have seen what speech that is too free can lead to – so it’s important that there are mechanisms in place that make every editor fear the libel courts enough that they check the facts behind their stories.
As with many things in life, some balance is required.
The principle here was that he had said not merely that they were wrong, a statement of fact, but that “bigus2 implied knowingly wrong. The same defence was put forward by ITN, but with the implied rather than stated bit about fraud even more ethereal, when they sued over the claim that their “concentration camp” video, used to support our bombing of Serb civilians, was faked. ITN’s defence was that while the video was indeed faked & LM magazine had neverv actually said that it was deliberately faked they were at fault because they had not gonne to great lengths to say the faking wasn’t deliberate.
Clearly the court has behaved differently here to the way they did over the faked video. I accept they were right this time which means the judiciary in the previous case were wholly corrupt in the cause of helping the British government bomb civilians opposing the openly genocidal ex-Nazis we were helping.
Had people standing up for integrity now supported integrity when our government were supporting genocide the battle for free speech wopuld have been won long ago. Some untermencsh would still be alive to but I don’t suppose that counts.
Soo… if anti-vaxers say that the Hannah Poling decision proves that vaccines cause autism, then we should be able to declare that the courts have stated that chiropractic care is, indeed, bogus. 🙂
It was clear from the appellate decision that the court was unhappy with the state of the law. The court referred to a number of cases that had been controlling and made nice noises about them, but eventually decided that in this case they were either not compelling or controlling. Instead, they looked abroad to see what was going on. They liked the reforms by law in some countries but they also found an important alternative that could be well-defended within their tradition:
The court was clearly upset with the chilling effect of the personal suit, but were also careful not to state that they were overturning British libel law. It looks as if they began exactly (and wisely) what they make no claim of doing. Quoting from a well-respected but conservative American jurist was a decent way to start.
Oh, dear, what will these pseudo-medical practitioners do if they cannot sue everyone who points out that their medical claims are unsupported by evidence?
My feelings are somewhat mixed now that I’ve had a chance to read up on he situation. Ultimately, I do feel Mr Singh should be allowed to write his own opinion and be left alone and chiro’s should deal with critiscm a little better.
As a chiropactor, however, I took more offense to the word “happily” when coupled with the word “bogus.” I’d accept bogus by itself because of the lack of evidence beyond a hundred plus years of case studies and anecdotal stories from patients. When attaching the word “happily” the intent seemed to imply more of a scam, or a conspiracy to knowingly defraud the public, which the treatment of children is not.
No, the level of science that would satisfy this crowd does not exist. That is correct and if the word bogus is to be used then so be it. However, because of the experiences in our offices and the frequency of which patients report improvements with chiropractic treatment in these cases, I can honestly say the providers truly feel they are doing good and cetainly are not “happily” conspiring to defraud the public with bogus claims.
Take the word “happily” out of Mr Singh’s comment and it becomes purely about the science. Leave it in and the statement seems to imply something completely different and I think that’s what it’s really about for most chiro’s. Either way it’s not worth a lawsuit in my eyes.
I will say you guys do have a point about the science (most of the time) but the self-righteous vitriol and the character attacks against people who truly think they are doing good work will ultimately lead to trouble. Just my two cents as the resident antagonist chiro.
I think you misread the comment. His point is that said treatments are ‘happily’ provided because the practitioners do not recognize them as bogus. When providing a treatment one honestly believes is valuable and helpful (even when one is quite wrong in that belief), doing so ‘happily’ is not a perjorative term.
“What will these pseudo-medical practitioners do if they cannot sue everyone who points out that their medical claims are unsupported by evidence?” Exactly what they’ve been doing all along:concocting elaborate fictions to explain reality,writing books based on spurious research,resting on their correspondence school(or University of Google) laurels, sliming researchers/ institutions with whom they disagree,confabulating conspiracy theories to explain the widespread acceptance of results they refute,histrionically presenting anecdotal “evidence” in emotional appeals, being “brave maverick doctors” or “new Galileos” persecuted by the “oppressive orthodoxy”,developing their own network of woo-centric yea-sayers,relying on mysticism or faux physics,developing a “captive audience”,creating an internet retreat from the harshness of reality,moving to Ecuador,complaining about how the mainstream media rejects them,and *now* they can bitch about how the “corrupt courts” won’t even hear their cases(which of course,ultimately points to “the government”).
The judgement, well summarized by Jack of Kent, is worth reading.
Ah! Pure poetry from the Honorable Justices! 🙂
You really have to admit, the Lord Chief Justice’s name is absolutely perfect for his job. I always find it amusing.
Speaking as a UK resident, there is a huge popular push on right now to reform libel law, and the politicians are feeling it. The ruling above is a real triumph, because the three law lords who gave this ruling are the most senior and respected ones which exist; their opinions carry a heck of a lot of weight, and this sends the message to the politicians as well that reforming this area will not necessarily earn them the emnity of the courts.
I was hopping up and down and cheering when I heard this, yesterday.
@Scott- I believe Orac quoted Mr. Singh as saying the BCA “happily promotes bogus therapies.” I personally take that to mean they willingly, knowingly, and gleefully conspire to defraud the public. Coupling “happily” and “bogus” together is where the line was crossed. I do believe Mr. Singh intended to make that connection, accusing them of fraud and conspired deceit, and in my own opinion this is where he strayed from the science and went into his own judgement. It was an opinion piece so, yeah, whatever. However, he provided a very inaccurate opinion regarding the motives of the BCA and tried couched it as undeniable fact based in science.
The fact is that chiropractors actually experience quite a bit of success when treating children. Ergo, they do not “happily promote bogus therapies.” The truth is they promote therapies they truly believe work as supported by their experiences and patient testimony. No, that is not science. I understand. But it is absolutely not a sinister plot to harm the public as Mr Singh implies. That is what lead to the conflict I would suppose.
In my own practice, which is musculoskeletal based, I still experience it myself. I do no advertising or promotion and I treat very few kids. I never mention that a patient may experience anything but improved function with less pain. However, even I have had several experiences where patients, young and old, will tell me their allergies, asthma, ear infections, enuresis, etc has for some reason start to improve when they began treating with me for a musculoskeletal condition.
Again, I never even plant that seed in their head and it still happens. I honestly have no idea why it does, and I’ve never supported the original subluxation model, but I can tell you something other than pain relief and improved function can happen. For decades many Osteopaths have reported similar experiences. Now that PT’s are doing manipulation they are also starting to report the same types of things as well. I think this is important to consider when questioning and passing omnipotent judgement on the motives of the providers.
@12 Scott – do you think Lord Judge got the position the way Major Major Major Major got his promotion? 🙂
One of the issues was whether Singh could have libelled the BCA by the much-debated phrase alone (and whatever meaning one places on it) or whether the whole of the article needs to be considered to give the phrase context and thus its full meaning. You can find the article in many places, usually with the offending wording slightly redacted (e.g. on my blog here).
In the paragraph following the phrase Singh says “I can confidently label these treatments as bogus because…” and goes on to give his reasoning. In essence this makes it clearer that the previous statements were opinions, based on his and Ernst’s interpretation of the literature, but stuck “up front” for literary effect.
Another relevant point is that subsequent to the complaint Singh has publicly stated many times, on the record, that he did not mean that the BCA or other chiropractors promoted therapies they knew (i.e. were clear in their mind) were bogus. The BCA could have dropped the lawsuit at any point and held a press conference to highlight Singh’s statements. Indeed, many of us thought that that was the point of their filing suit in the first place, and were amazed that they pursued Singh so vindictively.
It is the pursuit that has earned the BCA all the negative publicity, since it has given the widespread impression that they want Singh’s head on a pole “as a warning to the others”. As the judges put it:
So… if the BCA have come out of this as the villians, then they have only themselves to blame.
Whilst our libel laws do need reform, I’m far from convinced that the burden of proof needs to be changed.
If I’m minding my own business and somebody prints something about an alleged moral lapse in my past, why should I have to prove them wrong? They’re the ones that attacked me.
The plaintiff needs to prove that the statement was made, and it’s damaging. That’d be like proving that someone did, in fact break the speed limit. The defendent can then try to provide some defense, such as a mercy dash to the hospital; or for libel, that it was true and people had a right to know it.
That’s where English law diverges from US law and why we are so completely amazed by English law. In the United States not only is truth an absolute defense in all defamation cases but even if the alleged victim can show that your claim happens not to be true, the fact that you made a reasonable effort to confirm what you state is sufficient defense.
In the case of public personalities, there’s little that cannot be said. Still, scurrilous attacks made without regard to the truth can be sanctioned as the National Inquirer found when it was caught making up defamatory material. Since then, they have had a few scoops that certainly qualify as causing damage to the person they wrote about, but they managed to get the evidence they needed to show they were correct.
Why should chiropractors and other woo-meisters be able to make health claims that they cannot support and then sue those who dare to criticize them? Is is just a matter of wording? Would Singh have been safe by making a minimal change in the language to say that the BCA members engage in a huge number of treatments that are not supported by any scientific evidence, but they offer those treatments anyway?
But of course the defendant needs to prove that his words were true, or that he had reasonable grounds to think them true. That is not what the libel reform movement disagrees with. What is up for debate here is that a simple “slip”, or differing interpretation of the word “bogus”, can result in costly, lengthy and utterly unnecessary litigation, which in turn tends to result in the gagging of the writer. Remember, what was up for debate here was the simple use of the word “bogus” – not any of Singh’s other claims. If Singh had indeed claimed explicitly that chiropractors are frauds who knowingly scam the public then the onus, quite rightly, would be on him to present some evidence for this view. But this isn’t what he said. Instead he said the pointless (well, profitable) woo that is chriopractic “medicine” is a load of old hooey. The BCA tried to bully him into saying he meant otherwise, and found the ever-obliging “Justice” Eady to help them hammer home the point. Thankfully the appeal court completely nailed this judgement. But what they did not do was try to shift the burden of proof about positive claims. In fact by dismissing the idea that Singh had acused them of scamming they showed that simply crying foul isn’t enough.
I am torn between being amused and apalled. That an English court should look to foreign law, and not even European foreign law, and further respectfully refer to the law of a country thousands of miles away rather than the nuch closer Strasbourg rulings – horrors!
Of course, the 1st Amendment to the US Constitution was an attempt to write down one of the undocumented “rights of Englishmen” which kicked off that whole secession-from-the-government thing.
Strasbourg… hasn’t that area been forcing stuff down throats for generations? Something about geese…
For those looking for wider reading, do read the Court of Appeal judgement statement (which is excellent and quite readable) and the BCA’s statement (which was released so quickly, I presume it was written in advance-?). (If you can’t find these above, I’ve included links to these in comments to my earlier post, linked on my name below). The ‘Jack of Kent’ blog, also mentioned earlier, is a good source of information; the author is a freelance legal writer with good connections to the case. There is some also useful discussion on Stephen Curry’s blog, Reciprocal Space, on Nature Network, and elsewhere (Bad Science, …)
A smaller-scale “incident” occurred in New Zealand, which has parallels with the approach taken with Simon Singh. I’ve mentioned this on Stephen’s blog and may bring this up on my own blog sometime. It’s the one that the editor of the NZ Medical Journal replied, ending “letâs hear your evidence not your legal muscle” in response to the local chiropractic association sending a lawyer’s letter to them (which they also published in the editorial).
Two quick points:
The BCA declined an opportunity to reply via the newspaper (The Guardian, a major English broadsheet) and instead chose to file a suit against the writer, not the newspaper.
I think what Singh meant was “the BCA is promoting treatments that a reasonable organization would consider bogus”. If the original judge had simply ruled that Singh had to prove that a reasonable organization would consider the treatments bogus, Singh would have stood a good chance of winning.
At the moment, this decision bodes well. It is my hope that it continues to bode well. In spite of widespread and endemic disconnect from reality among the elected and appointed personnel who are pleased to regard themselves as “leaders,” (for no compelling reasons) there are a precious few who are not so afflicted. Good news.
In Illinois or any of the minority of other US states that follow it, this case probably would have been dismissed rather quickly under the “innocent construction” rule. This rule provides that if the words alleged to be libelous can reasonably be construed, in context, in a non-defamatory, “innocent,” fashion, the libel action will fail. UK law appears to be the opposite – according to the appellate court, “what the words in issue in a libel action mean is subject to two controls: a decision, reserved to the judge, as to whether the defamatory meaning alleged by the claimant falls within the range of possible meanings conveyed by the words in their context….”
@Kausik Datta: The quotation from paragraph 34 is actually from an American judge, Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, rather than original to the Lords Justice in the current case.
Paragraph 23 of the judgment is a classic, though:
@Free Lunch (et. al)
Be aware (and I know this as a working reporter) libel laws in the US don’t mean I an write anything I want. If I write a story about a city council meeting and a city councilman gets up and says “My colleague is a child molester” I can’t just write that up, however silly it seems. I have to go to the person he is talking about and at least ask whether it’s stupid or not. And no, there is no “seriousness” threshold. I asked my company’s libel lawyers a long time back about that– if I write “X says Y is an alien from Zantar” I have to ask Y about whether he is, in fact, an alien from Zantar.
Nor is the truth an absolute defense — in fact, the National Enquirer case with Carol Burnett established just that. It differs form state to state, but California in particular is a “truth is no defense” state. The law asks about how relevant the statement is, and whether there was any malice on the part of the writer. I can’t write a story about Schwarzenegger’s budget plan for California and throw in a sentence that says “and he is a serial sexual harasser, as testified to by several women” out of the blue.
(These fall under the “reckless disregard” category, IIRC).
In fact, every reporter should have a checklist (and usually does) of what’s libelous or not. It’s because most of us are pretty careful about it that we don’t get hammered every other week.
For anyone interested in the legal ins and outs, the basic precedent in the US is New York Times vs. Sullivan which every journalism student is (or should be) required to read. It basically forced a restructuring of libel laws across the country, especially in the south.
@ John A (#21): Nope. No foie gras tradition in Strasbourg. You are thinking of another part of France entirely. Not that culinary tradition has anything to do with libel laws, of course.
Erm – it’s a bit more complicated than that.
Speaking as a UK lawyer, some aspects of UK libel law do need reform. However, by far the most important problem is the cost of litigation (I have no idea where the often repeated assertion that English litigation is many times more expensive than litigation elsewhere comes from, but I have never seen any evidence whatsoever cited in support of it – I would be amazed if it was cheaper to litigate in the US, for example). There are some proposals already under way to change this but, of course, you have to be careful that you don’t stop legitimate defamation claimants from suing.
I have banged on about the various bits of misinformation that are routinely disseminated on my blog: http://lucifee.wordpress.com/. It is very very interesting that the Bad Science bloggers (and Simon Singh himself, having heard him speak at campaign events) are much more ready to take unevidenced assertions as being factually correct in a legal context than they are in a scientific one.
Jack of Kent takes a different view as to the merits or demerits of the campaign. He is by far the best UK legal blogger and well worth a read: http://jackofkent.blogspot.com/
This provides a great opportunity to point people towards the online petition to reform the libel laws in the UK: http://www.libelreform.org/sign If you live in the UK, your signature is especially important, but even if you (like me) don’t live there, they are still urging you to add your voice to those demanding reform. If you have not already signed, please consider doing so.
Having come before Eady in the Wakefield “gagging writ” case, I’m very inclined to be kind to his judgments.
Which may influence me when I say that I think the appeal court began with a similarly generous attitude towards Simon Singh.
Starting with the words complained of, my personal view is that Eady’s judgment is correct. I think Orac senses that too in saying he wouldn’t have put his money on a reversal.
I think the appeal court started with Simon Singh, concluded that it would be most unfortunate for a person in his position to lose over the article he wrote, and then worked backwards.
To me, the judgment, among other things spurring the lord justices clerks to scour United States opinions, is just a little bit forced.
Nevertheless, my experience of judges is that they are cleverer than me, and set great self-worth on being fair. They have subtly altered the law to come to Simon Singh’s aid. They are obviously entitled to do this, and I think it’s a good thing. And a great achievement for Simon (aided by his counsel Adrienne Page, also my QC against Wakefield).
As with Eady’s judgments against Wakefield in 2005 and 2006, I think it’s a sign that the courts have had enough of the charlatans and scamsters. If my memory is right, I think Sedley LJ presided over the MMR “junk science” case in 2003, involving disputes between parents about whether children should be vaccinated.
I’m not saying the BCA are charlatans or scamsters, but certainly there’s enough bogus claims on the alternative medicine circuit (autism now being the prime growth area for health-related fraud) for the time to have come to give more protection to those people who wish to expose what’s going on.
So, right result, but lets not be too harsh on Eady. I think that – as with the junk science case – these things need the appeal court, or above, to make the necessary correction.
“In the United States not only is truth an absolute defense in all defamation cases but even if the alleged victim can show that your claim happens not to be true, the fact that you made a reasonable effort to confirm what you state is sufficient defense. ”
Theoretically this is also the case in the UK. Under the so-called Reynolds defence, even if the allegedly defamatory statement is untrue, if you can show that you published it in the course of “responsible journalism”, you might get off. Now, so far at least, that’s been more of a theoretical defence than a practical one. The judgement which established the defence provided a lengthy checklist of things a responsible journalist should have done, and in most cases one or more would have been missed out (or could be construed to have been missed out). The Lords, however, have since decided that a checklist approach isn’t the way to do it, and have deemed the Reynolds list as more of a best practice sort of thing, making the defence much more viable.