Thursday, November 26, 2009

Liberty or Libel?   posted by DavidB @ 11/26/2009 04:02:00 AM

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.