Liberty or Libel?

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There has been much discussion in the blogosphere (for example by Olivia Judson here) of the current libel case between the science writer Simon Singh and the British Chiropractic Association. Most of the comments have supported Singh and criticised both the BCA and the trial Judge, Sir David Eady. Science writers complain that the libel laws are stifling fair criticism of unscientific claims (which makes this at least marginally relevant to gnxp).

I have no interest, of any kind, in chiropractic, and I support freedom of speech, so you might expect me to join the chorus of Singh-lovers and Eady-haters. Unfortunately, much of the commentary has been ill-informed or self-interested (since journalists and bloggers view the libel laws much as turkeys view Christmas). The British press has other motives for attacking Judge Eady, who has extended the legal right of privacy against paparazzi and tabloid journalists. So protestations of concern for ‘free speech’ need to be taken with a hefty pinch of salt…

Some red herrings to dispose of. First, there is a legitimate debate over the practice of ‘libel tourism’ or ‘forum shopping’. But this issue does not arise in the Singh case, where a British writer made comments about a British organisation in a British newspaper. There is no question that a British Court is entitled to try the case.

Second, on libertarian grounds I would be willing to argue for complete freedom of speech, with no restrictions on libel. But that is not where we start from. Every country has some kind of libel law. The details vary, and the balance between freedom of speech and protection of individual reputation is struck in different ways. It is arguable that American law leans too far in favour of the libeller, while English law leans too far in favour of the libelled. But Eady’s critics argue that even within the general framework of English libel law his rulings are dangerous to freedom of speech. I will therefore take that general framework as given.

What then are the issues?

Here is the key passage from Singh’s article, which prompted the libel action:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

Before going any further it is necessary to set out the various stages of a libel action under English law, since some of the critical commentary seems to misunderstand this. A case can be divided into four main stages:

Stage 1: It must be established what was said or written, who said it, and who was its ‘target’. In the present case this is straightforward.

Stage 2: It is necessary to decide whether what was said is defamatory. Roughly, this means whether or not it is damaging to the reputation of the complainant. At this stage, under English libel law, the truth or falsity of what was said is irrelevant. [Note 1] Much of the comment on the case has failed to grasp this. A true statement may be defamatory, and a false statement may be non-defamatory. The point at issue is not its truth, but whether it is damaging.

Stage 3: If it is decided that a statement is defamatory, the person responsible for the statement may then defend it. Except in certain special circumstances, the defence is either that the statement is true (the defence of ‘justification’), or that it constitutes ‘fair comment’. In the English system it is usually for a jury to decide whether the defence is convincing.

Stage 4: If the jury finds in favour of the complainant, a decision is then needed on the amount of damages or other remedial action. Damages are decided by the jury. All costs of the case are usually paid by the losing side. It has been suggested in some commentaries that it is cheap to bring a libel action, because the complainant can hire a lawyer on a no-win no-fee basis. But this is only true if the complainant has a strong case; otherwise no lawyer will touch it.

The basic complaint of the BCA is that Singh’s article accuses them of dishonesty, by promoting treatments which they know to be ‘bogus’.

Judge Eady was asked to give preliminary rulings on two issues: what Singh’s words meant; and whether they amounted to an assertion of fact or merely an expression of opinion. On the first point, he decided, agreeing with the BCA, that Singh’s article accuses them of dishonesty, saying: ‘[the quoted passage] is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.’ After this, it was straightforward to take the further step of deciding that the passage is defamatory, since an accusation of dishonesty could hardly not be. On the second point, Judge Eady concluded that the passage amounts to an assertion of fact. The importance of this is that if the defamatory passage is an assertion of fact, the defence of ‘fair comment’ is not available, and the only defence (usually) is to show that the assertion is factually true, or ‘justified’. This defence remains open to Singh.

The case so far therefore raises two issues:

1. Was Eady right to conclude that Singh had accused the BCA of dishonesty?

2. Was Eady right to conclude that the accusation was an assertion of fact, rather than merely an expression of opinion?

On the first point, the matter is perhaps not as clear-cut as Eady’s ruling suggests, but on a common-sense reading of Singh’s passage it is at least a very reasonable interpretation. Singh’s words are strong: he says there is ‘not a jot of evidence’ for the BCA’s claims, and that while it is the ‘respectable face’ of chiropractic, it still ‘happily promotes bogus treatments’. Whether or not Singh intended this to be an accusation of dishonesty, it is a natural inference for the reader to draw. The word ‘bogus’ by itself usually has an implication of dishonesty; the dictionary gives synonyms such as ‘sham’, ‘spurious’, and ‘counterfeit’. To say that someone promotes bogus treatments therefore might in itself be taken as implying dishonesty. This interpretation is reinforced by the contrast Singh draws between the ‘respectable face’ of the BCA and its ‘happily’ promoting ‘bogus treatments’. The contrast between ‘respectable face’ and ‘bogus’ seems to imply that the BCA is not, after all, as respectable as it may appear. If Singh did not intend an imputation of dishonesty, he expressed himself carelessly. An alternative possibility is that he did intend to impute dishonesty, but chose his words so as to insinuate that conclusion without making it explicit. In any case, under English libel law, Singh’s intention is irrelevant: what matters is the interpretation that reasonable readers are likely to put on his words.

On the second point, namely whether the defamatory claim was a matter of fact or opinion, the issues are more technical, and I do not pretend to understand all the legal subtleties. According to Eady’s ruling:

It will have become apparent by now that I also classify the defendant’s remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. [Note 2] Here the allegations are plainly verifiable and that is the subject of the defence of justification. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading “comment and debate”. It is a question of substance rather than labelling.

Given the assumption that there was an accusation of dishonesty, this seems a reasonable enough decision. The defence of ‘fair comment’ is more narrowly circumscribed than the layman might imagine. The test of whether something is ‘opinion’ depends on the substance of the alleged disreputable conduct, and not on the form in which the allegation is made. It does not become a matter of opinion just because the author uses the words ‘in my opinion’ or some other verbal dodge.

Clearly the whole case (so far) hinges on the question whether a reasonable reader would interpret Singh’s words as containing an accusation of dishonesty. Much of the commentary has either missed this point, or strained to find alternative interpretations. For example, the words are interpreted as imputing mere gullibility or ignorance, rather than dishonesty. In some circumstances that might be the most natural interpretation of the same or similar words. For example, it might be said that exorcism is a ‘bogus’ treatment for mental illness, yet that some religious sects ‘happily promote’ this bogus treatment. In this case it might plausibly be argued that the implied accusation is one of gullibility or ignorance rather than dishonesty. But this interpretation relies on the background knowledge than religious sects are commonly ill-informed and gullible. In the case of the BCA, the contrast that Singh himself makes is between the BCA’s position as the ‘respectable face’ of a medical profession, and its willingness ‘happily’ to promote ‘bogus’ treatments for which there is ‘not a jot of evidence’. It is difficult to regard this merely as an accusation of gullibility. According to Judge Eady’s ruling:

It is alleged that the claimant promotes the bogus treatments “happily”. What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

The critics complain that this is reading too much into the word ‘happily’, which could have a variety of other meanings. But again the question is not what the word might conceivably mean, but what a reasonable reader is likely to take it to mean. The meaning of words often depends on their context. In this case, the word ‘happily’ does not have its literal meaning as a description of an emotional state. The word must in some way describe the collective state of mind of the BCA in promoting ‘bogus’ treatments, and in the context it does (it seems to me) have a strong suggestion of dishonesty. The alternative is to suppose that it has a weaker connotation of recklessness or irresponsibility, but not of conscious dishonesty, or that it leaves several possibilities open, meaning (roughly) ‘dishonest or gullible or reckless or irresponsible…’. These interpretations are not impossible, but Singh himself has made it more difficult to accept them by saying that there is ‘not a jot of evidence’ for the ‘bogus’ treatments. If this were true, then the BCA, as a body of specialists in the field, could hardly be unaware of it, and their promotion of such treatments would go beyond mere recklessness into conscious dishonesty. Judge Eady’s interpretation is therefore not unreasonable.

Nor does the case have the far-reaching implications for freedom of speech or scientific research that some critics claim. No-one is suggesting that it is improper to criticise chiropractic or other alternative therapies. The only lesson to be drawn is that if you wish to accuse someone of dishonesty, at least in England, you must be ready to back up your accusation with evidence; and if you do not wish to accuse someone of dishonesty, you should choose your words with care.

Note 1: This is the position in most of the Common Law world. It was also the position in the United States until a series of Supreme Court decisions shifted the burden of proof onto complainants, where they are ‘public figures’, to show that the words complained of are not only defamatory but deliberately false. A useful account of American libel law is here.

Note 2: Out of curiosity I looked up this case. British readers may recall the incident when the former MP Neil Hamilton and his wife were accused of having raped a woman. The accusation was investigated by the police and disproved. The accuser was subsequently prosecuted and jailed for making false accusations. But before this, she had sold her story to the tabloids, using the PR consultant Max Clifford as intermediary. During the police investigation Max Clifford had gone on television to defend the woman’s claims, and among other things said he personally believed the claims were true. This was what led to the libel action, as the Hamiltons claimed that by endorsing the woman’s accusations Clifford was himself in effect accusing the Hamiltons of rape. Clifford argued in his defence that he was merely expressing an opinion, but the Judge ruled that he was making an assertion of fact, and could not shield behind the defence of ‘fair comment’. And who was the Judge? – step forward, Mr Justice Eady!

Added on 27 November: it has been pointed out that Simon Singh has recently been granted leave to appeal on some of the issues raised by the case. The Appeal Court may well reverse Judge Eady’s rulings on some or all matters. In my post I did not suggest that Eady was necessarily right, just that his rulings were a lot more reasonable than some commentators have claimed. As I said at the outset I have no interest in chiropractic. I have only commented on the case because I was getting tired of misrepresentations of it, which recur in an article in the (London) Times yesterday. Two things in particular have irritated me. One is the one-sided presentation of the case by the commentators. I have not seen a single comment which recognises that the BCA might just have a legitimate complaint when they are, arguably, accused of dishonesty. You can argue about the precise meaning of the words used by Singh, but no-one can sensibly deny that they could be used to make an accusation of dishonesty. Second, I am concerned that scare-mongering about the effects of the case on free speech and scientific enquiry could be a self-fulfilling prophecy. If scientists and science writers (including bloggers) are led to believe that they cannot make strong criticisms of pseudo-science without facing a libel action, freedom of speech and enquiry really will be inhibited. For the reasons given in my post, I do not think that the Singh case has these implications, and those who claim that it does are harming the cause they wish to defend.

I am also happy to acknowledge that I obtained the text of Judge Eady’s ruling through JackOfKent’s blog, via Olivia Judson’s blog, which is linked in my post. I would also stress that my criticism of ‘ill-informed’ commentators does not include JackOfKent. I don’t agree with his assessment of the case, but he is certainly well-informed about it – far more so than me.

Added on 29 November: I hold no brief, in any sense, for the BCA, but it seems to me that in fairness one should not accuse them of ‘litigiousness’, without at least checking their own statements of position. Here is one of their press notices on the Singh case. I do not know (obviously) whether the quote they attribute to Simon Singh at the end of their statement is true, but if it is, it puts Singh in a very different light from that presented by his cheerleaders.

19 Comments

  1. “…much of the commentary has been ill-informed…” 
     
    Not only do you seem to have lifted a good deal from my site with out acknowledgement, you’ve also missed that Eady’s judgment is subject to appeal. In granting permission to appeal a senior appeal judge was critical of Eady’s judgment. 
     
    In fact, the standard of commentary on this case has been very high thoroughout the blogosphere.

  2. There was a wee bit of “forum shopping” – after all, they could have used the Scottish Courts.

  3. In the case of the BCA, the contrast that Singh himself makes is between the BCA’s position as the ‘respectable face’ of a medical profession, and its willingness ‘happily’ to promote ‘bogus’ treatments for which there is ‘not a jot of evidence’. It is difficult to regard this merely as an accusation of gullibility.“ 
     
    On the contrary, I think it’s very easy – and indeed, the natural reading – to take Singh’s point here to mean “the BCA presents itself as a respectable professional body, and yet at best is as naive and gullible as a religious sect that promotes exorcism”. 
     
    Similarly, Eady’s suggestion that “happily” rules out “naively or inncoently believing in their efficacy”, rather than implying it is frankly surreal. See: “the child happily walked off with Myra Hindley”, etc. 
     
    Singh’s piece makes the point, based on the evidence, that the BCA are either naively promoting stuff that doesn’t work, or are liars. It leaves it up to the reader to decide which. 
     
    Eady’s interpretation of the piece was that it ruled out the possibility that they were idiots; this is obviously wrong, was rightly overturned, and I can’t see how anyone could possibly defend it…

  4. Any particular reason you fail to mention the recent granting of an appeal to Simon Singh as to Eady’s ruling on meaning? 
     
    It would seem pertinent to your analysis of whether the ruling was unreasonable, particularly as Justice Laws described the ruling as “legally erroneous”. 
     
    Here for more details: 
     
    http://jackofkent.blogspot.com/2009/11/bca-v-singh-court-of-appral-permission.html

  5. To me it seems that the fact that the BCA chose to sue instead of provide evidence of their bogus claims actually proves that they did spread them knowingly. 
     
    So even if Singh didn’t actually meant to imply they knowingly advocated treatments they knew to be worthless, the BCA themselves have by their litigiousness and general cockishness shown that they indeed did.

  6. There are special problems with British libel laws, which are unusually punitive and which favor the plaintiff (e.g., truth is not necessarily a defense, and the burden of proof is on the defendant).  
     
    These laws are very doubtful indeed when discussions of scientific ideas is concerned. As far as I know, someone who asserts that astrology is fraudulent and lacking in any scientific basis could be sued, by anyone making their living by astrology.

  7. On ‘forum shopping’, the Guardian newspaper is published in England, so England (not Scotland) is the appropriate jurisdiction. 
     
    To JackofKent: I am not aware of ‘lifting’ anything from your site other than Olivia Judson’s link to your text of the judge’s ruling. Presumably you do not claim credit for this! As for the Appeal, I was aware that Simon Singh had applied for leave to appeal, but not that leave to appeal had recently been granted. So I was ill-informed on that. In my defence, the new decision does not seem to have been widely or prominently reported in the Press; in a Google News search just now the only report I could find was in the Scotsman. The higher court has accepted that the case raises issues of public interest, which I would not dispute. 
     
    As for the standard of comment in the blogosphere, I stand by the main point of my post, which is that much of the public commentary has misunderstood or misrepresented the issues in a very one-sided way (as do some of the comments above). The BCA’s complaint is that Singh, by implication, accused them of dishonesty. This would clearly be defamatory, and science writers cannot expect to have carte blanche to make such accusations.  
     
    To John Emerson: As I pointed out in my Note 1, English libel law is generally in line with other Common Law jurisdictions: it is the USA which has diverged. Also, in English law ‘truth’ would usually be a defence – the defence of ‘justification’. This stage of procedure has not been reached in the Singh case, as I hoped I had made clear in my post. As to your astrology example, anyone who accused a named astrologer or astrological organisation of fraud would expose themselves to a libel action, and quite rightly so, because it would be an accusation of dishonesty, and not just error. There is no ambiguity about the word ‘fraud’, as there may be about the word ‘bogus’. If we are to have libel laws at all (and that is a wider issue) accusations of dishonesty are bound to be within their scope. 
     
    To Ptah: I don’t know all the details, but I believe that the BCA originally would have been satisfied with an apology for the (alleged) imputation of dishonesty, but Singh refused. 
     
    To Jon Hopkins: Judge Laws did not say that Judge Eady’s ruling was ‘legally erroneous’; he said that this was ‘arguable’ – in other words, it is a legitimate matter for appeal. Any appeal on a matter of law has to show that the previous ruling is ‘legally erroneous’: that is what appeals are about.  
     
    To John B: as I said in my post, I don’t think Eady’s interpretation is quite as clear cut as he presents it, but it is not as unreasonable as you and other commentators claim. Your Myra Hindley example is feeble: children are expected to be gullible, professional organisations are not. 
     
    But my main point is that, contrary to much of the hostile commentary, the key issue in the case so far is whether there was an implied accusation of dishonesty against the BCA, and not whether, in fact, chiropractic treatments are effective. This issue has been persistently ignored or misrepresented. I prepared my post a few weeks ago, but decided not to use it until I was provoked by an article in the Times today which misrepresents the issues in precisely this way.

  8. Dear DavidB 
     
    As mine is the only site that took the trouble to obtain and republish Eady’s judgment, then it would have been mere politeness to have mentioned that.  
     
    My site is also a counterexample to your (odd) allegations that blogs are not properly covering Simon Singh’s case, and so I can see why you chose not to link to it. 
     
    As for your hapless missing of the crucial fact that Simon Singh has successfully obtained leave to appeal, and in terms which criticised Eady’s judgment, then it is a simple “fail” for you. It was covered in MSM. Indeed, the application hearing itself was also featured in MSM. Your inability to spot this tells us a great deal about your basic competence to write an informed blog. 
     
    This all wouldn’t perhaps matter, apart from your generalised and ignorant dissing of the blogs following this important case. And so I am taking the time to demonstrate your shortcomings. 
     
    Your blogpost is bogus. No doubt you wrote it happily. Of course, I do not accuse you of dishonesty; but you really have no idea what you are doing. 
     
    Jack of Kent

  9. Good post. I’d note that the correct libertarian line about whether there should be libel laws is unclear. Richard Epstein thinks New York Times v. Sullivan amounted to an uncompensated taking of property rights from public figures. While I don’t buy that, I do agree with Ian Ayres’ point that defamation laws would be unproblematic if you could contract out of them. On Ayres’ scheme, you could be free of defamation liability if you ran a disclaimer saying, “This paper/blog/etc. has opted out of defamation liability. Readers beware.” In that counter-factual regime, Singh would have no complaint if he or his publisher didn’t run the disclaimer, and he’d have to take the reputational hit if he did.

  10. “On ‘forum shopping’, the Guardian newspaper is published in England, so England (not Scotland) is the appropriate jurisdiction.” 
     
    It’s distributed in Scotland so libel (“defamation” in Scotland) could have been sued for. England might have been chosen for convenience – it surely wouldn’t have been chosen for prompt or economical decision-making – but it’s hard not to suspect that the English law, or custom, are more favourable to the accuser in cases of libel that the Scottish courts. Similarly, if you had a choice you’d always favour England over Scotland in a divorce case if you were hoping to strip your spouse of most of his wealth.

  11. A pox on Richard Epstein, possibly the least libertarian “libertarian” I’m aware of.

  12. I have acknowledged Jack of Kent in an addition to my post, though all I have ‘lifted’ from his site are two quotations from a legal ruling. I did provide a link to Olivia Judson’s post, which in turn provided a link to Jack of Kent’s site and other sources. I thought this was quite sufficient for anyone interested in the subject to follow up. In my own posts I often quote at length from other authors, but I would not expect anyone else to ‘acknowledge’ me as a source merely because they had found a useful quotation in one of my posts.  
     
    The granting of leave to appeal is a significant development, but it does not affect the substance of my post, which is that Judge Eady’s ruling is neither as unreasonable nor as damaging to freedom of speech as many have claimed. As I have also pointed out in an addition to my post, people who claim that the ruling will stifle fair criticism of pseudo-science are in danger of making a self-fulfilling prophecy.

  13. Imagine you’re about to undertake a course of chiropractic treatment. You read Singh’s article and decide not to proceed. Why? Because you realise the treatment won’t work. Does the chiropractor know it won’t work, or is he deluded? It doesn’t matter. What matters to you is, does the treatment work? If it doesn’t work you don’t want to pay for it. 
     
    Imagine the chiropractor is a con-man who believes his treatment won’t work, and he’s selling it cynically to make money. Unbeknown to him, super-new research has discovered conclusively that his treatment DOES work, and you’ve read that research. In that situation, you’d pay him for the treatment. 
     
    Ultimately, if you’re selling what you claim is a medical treatment, the ONLY REPUTATION you can have is a reputation for successful treatment. The idea that you can have a “reputation”, worthy of defence, for sincere but nonetheless total failure, makes no sense. 
     
    The problem with making “dishonesty” the benchmark test for this case is, maybe only future brain scans of chiropractors could ever settle the question. Supposing the chiropractic association commissions their own independent tests on the efficacy of their treatments. The tests come back, and they’re completely damning. They show no benefit whatsoever from their treatments. Even in that situation, couldn’t the chiropractors sincerely believe that the tests were somehow flawed, even if they have no idea how?

  14. On the question of MSM coverage of the decision to allow an appeal, I have searched Google News Archive for the two weeks after the decision. As far as I can see, the only UK national newspaper to report the decision was the Guardian, here http://www.guardian.co.uk/media/2009/oct/14/simon-singh-chiropractors-appeal 
     
    The Guardian of course has a special interest in the case. Nevertheless, its initial report contained several gross errors (subsequently corrected online), including a classic ‘Grauniad’ misprint (‘not a lot of evidence’ instead of ‘not a jot of evidence’) so perhaps it is just as well that I did not see it at the time.

  15. This just seems nutty. Is the brit tradition staving off some sort of nastiness that we are experiencing here in the states — is there an actual trade-off here, and not just in theory but in reality? 
     
    What could be more fundamentally arguable than just this sort of topic? Everyone knows that disagreeing MDs and PhDs quite typically aim some serious invective at each other when their research disagrees, though usually in their own odd style. I just cant imagine carefully mincing words before daring to publish about this — or wringing my hands for a year afterward. The sociology and psychology of this sort of bunk medicine — why it still persists without evidence — are essential topics in the market of ideas. I would expect that you would need to take on every facet of the the thing polemically if you actually wanted to change the minds of some of these alt-med patients who have, in logical rigor, as little instinct as training.

  16. So in addition to being quacks and liars the BCA are litigious cunts. The line between chiropracty and Scientology continues to blur.

  17. “litigious cunts,” Jason? Good’un!

  18. Neglected point is that if you read a statement of fact in a British newspaper, you can be reasonably sure it is true. That doesn’t seem to stop them from being argumentative or scandal sheets, so maybe there is something to be said for British libel laws from the consumers point-of-view. Similar arguments apply to product liability lawsuits generally.

  19. Neglected point is that if you read a statement of fact in a British newspaper, you can be reasonably sure it is true. 
    Funny, since they’re so often considered untrustworthy.

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