Law Reform,  Lawfare,  Libel

A good day in court for Singh and Science

This is a guest post by amie

A cheer went up at 9.45am chez amie at the single word from the courtroom on Jack of Kent’s twitter: WIN!

Simon Singh has won this leg of his defence against the libel case brought against him by the British Chiropractic Association. The judgement does more than remove the cords that Judge Eady had knotted, which would have obliged Simon Singh to fight this case with both hands tied behind his back.

Much of the online debate centred on the word bogus- the 3 judges spent the least time on this, saying the QC for Singh had rightly not sought to make a major issue of this. The court found that “In its context the word is more emphatic than assertive”, and anyway was immediately explained by referrence to the 70 trials which had found no evidence for these particular claims . Eady was wrong in ascribing anything beyond blithely to the word happily, and anyway it all had to be seen in the light of the finding that the phrase not a jot of evidence, is comment, not fact.

(This didn’t stop a cretinous -so sue me ma’am- interviewer from asking  Simon Singh just now in the News at One “but doesn’t bogus mean dishonest?”)

But it is paragraph 34, as it is already become known on Twitter, where they are saying this is the paragraph which all scientists will wave when threatened with libel. This is where the court unanimously and  expressly adopts the United States judgment so rousingly quoted at the hearing by Singh’s QC;

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.”

A moment of schadenfreude for your poster, who wrote previously about Lord Hoffman’s little Englander moment, when he scorned the importation of American principles of libel law as an imperialist neocon move which found no favour over here.

But no less stirring was this from the court:

‘The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

“I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.”

That is a pass to which we ought not to come again.’

I did get this surprisingly gloomy reaction from one correspondent this morning:

“Very sad news. This tinkering puts back substantive libel reform infinitely.”

I think my correspondent’s misgivings are unwarranted.

It may well be in some cases that a judgment is the band aid which takes the pressure off the government for the root and branch reform needed in an area of law. In this case however, I perceive the  public momentum is already too great here, and this has been picked up by the Parties, as these tweets immediately after the judgment indicate:

  • David Davis urges cross party support for #LibelReform
  • David Davis MP giving emphatic support at #SinghBCA press conference

And the judgment itself was very clear that although the judges had found a way through the mess for Singh, they were most unhappy with the state of the law generally:

“It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation.”

“By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh’s contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. Again, if that is where the current law of defamation takes us, we must apply it.


“He then sets out, ailment by ailment and study by study, his reasons for considering that none of the available epidemiological evidence reliably supports the BCA’s claims. This is met by a reply of comparable length in which the BCA, again ailment by ailment and study by study, contests his view and asserts that there is some dependable evidence for its claims. Ms Rogers has told us that, given the judge’s ruling that these are verifiable facts, the trial can be expected to involve expert evidence on both sides and a judicial conclusion as to whether there is any evidence for the BCA’s claims.

One has only to contemplate this prospect to conclude that something is amiss. It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. ..”

Finally, the BCA response. As one tweeter observes:

“Seeing the BCA response to the SinghBCA judgement, I wonder… have they been taking lessons in PR from the Vatican?”

BCA have basically whined: don’t blame us, we followed the  advice of our lawyers, every step of the way- they told us that we had no other option but to decline the offer of the Guardian to give us space to respond, we had no option but to sue, and we had no option but to sue Singh and not the Guardian.  Or, as this blog puts it, amusingly illustrated:

“The dog ate the right to reply I was going to publish in the Guardian.” and “A big boy told me to do it.”