Apr 01 2010

Good News for Simon Singh

We have been following the libel case of science journalist Simon Singh, and I am happy to report that there is a bit of good news on the case. But first, to recap: Simon was sued by the British Chiropractic Association (BCA) over an article called Beware the Spinal Trap – which I and other bloggers have since reproduced.

The particular line of interest was Simon writing that the BCA “happily promotes bogus therapies.” The BCA contends that this implies they dishonestly promote therapies that they know do not work. This has become the first point of contention for the libel suit. Simon maintains, and this is backed up elsewhere in the article, that he never implied that and in fact BCA chiropractors are likely self-deluded.

From the point of view of science and medicine, this is a minor point – the treatments are bogus (specifically chiropractic manipulation for childhood ailments, like colic) whether or not the BCA believes in them. But from a legal point of view, this distinction is everything. Originally a judge ruled that Simon’s line should be interpreted as saying the BCA was knowingly lying about their therapies. This would have put Simon in the position of having to prove in court that the BCA institutionally, and perhaps BCA chiropractors individually, believed that their treatments did not work. This would have been nearly impossible, and many feared that Simon may have lost his case on a technical point about definition.

Well – Simon appealed that original ruling, was granted the right to appeal, and now the higher court has just ruled that the original ruling was in error. The new ruling, in essence, says that Simon’s statement were an expression of his opinion, not a fact of the state of belief of BCA chiropractors. Therefore Simon can use the “fair comment” defense. This puts him in a very good position to win the overall case.

There are three important issues at stake with this trial. The first is the easiest as it is a scientific question – is there evidence to support the use of chiropractic manipulation for childhood ailments, like ear infections, colic, and bed wetting. The answer to this question is a clear no.

I reviewed the evidence for these claims here. In my article I also discuss the fact that the BCA put out a statement listing the evidence they believed supported their treatments. The list contained many irrelevant references, and also excluded many negative studies. What the BCA provided, however, was evidence to support the notion that they in fact do promote treatments they know to be bogus, because they could not provide evidence to support their treatments and they ignored evidence which shows their treatments do not work.

The second issue is the use of libel suits to silence public discourse on important scientific subjects. This case has become a signature case for this issue – and science journalists and bloggers are paying close attention. In the UK in particular it is easy to silence criticism or open discussion by the threat of lawsuit.

The third issue, which is related to the second, is that the libel laws in England are out of step with the rest of Europe and Western countries. Specifically it is much more expensive to defend a libel case – 140 times as expensive as the European average. Simon reports that it cost him 200,000 pounds to determine the meaning of his single phrase – and he is not through yet.

This unreasonable expense means that even successfully defending a libel case can be financially ruinous. It allows deep pockets to intimidate individuals or small publishers. And it also creates libel tourism, where people from around the world will file libel cases in England in order drag their targets into the ruinously expensive English courts.

Scientifically the BCA is on thin ice, and they have already been exposed as charlatans. Further, this is a significant victory for Simon in this specific libel case, and I am optimistic that he will prevail in the overall case.

However, the bigger battle is to reform the libel laws in England as they are a menace to free speech and the necessary free exchange of ideas that science requires.

In fact, Simon has doggedly continued to defend his case specifically to use it as a platform for lobbying for libel reform. A libel reform campaign is now in full swing. The fight is not over.

20 responses so far

20 Responses to “Good News for Simon Singh”

  1. JurijDon 01 Apr 2010 at 10:53 am

    I’m glad to see the BBC is making a big story out of this and promoting Simon’s victory on their website.

    Its also true that Simon has done a lot of good work for the BBC (I often see his name in the credits of Horizon documentaries) so it’s great the BBC is standing up in support of one of their great resources.

  2. ccbowerson 01 Apr 2010 at 11:26 am

    “I’m glad to see the BBC is making a big story out of this and promoting Simon’s victory on their website.”

    That is something I was unsure about: how much impact this story is having among people not actively following it. How big of a story is this in England among the general public? How much of an impact is this making for passing libel reform? What is the likelihood that libel reform will take place? I guess I will just have to pay attention to this.

    Why limit the criticism of chiropractic to children? For what conditions are ‘subluxations’ the cause of energy interference? None, because the premise doesn’t make sense. For what indications has chiropractic been superior to massage or any other intervention? Why is chiropractic both a noun and an adjective?

    Sorry for all the questions. Most are meant to be rhetorical

  3. mindmeon 01 Apr 2010 at 11:41 am

    One needs to point out this is actually not a subtle April Fool’s joke.

  4. CKavaon 01 Apr 2010 at 4:04 pm

    1) “how much impact this story is having among people not actively following it. How big of a story is this in England among the general public?”

    – Hard to say but my general impression is that it’s getting some attention from the general public thanks to the fact that it has a number of high profile supporters such as Jonathan Ross and Dara O’ Brian and because it is cited frequently when a reference is made to libel.

    2) “How much of an impact is this making for passing libel reform? What is the likelihood that libel reform will take place?”

    – Seems to be quite significant. The case garnered a lot of interest and it provided a clear illustration of the problems that the current UK libel laws cause. Even at the early support rallies for Simon you had speakers like Nick Cohen detailing how Simon’s case was just the tip of the iceberg. However, the big effect seems to have come about when Simon teamed up with Sense About Science, Index on Censorship and PEN and used his case to promote a more general call for libel reform.

    The effects of this campaign have been that the lib dems have added libel reform to their manifesto and the other two large parties appear to be teetering on the brink of doing so also. Similarly, senior government ministers have also recognised that there does seem to be serious concerns over the libel laws and I think there is a review under way which folks from the libel reform campaign are a part of.

    “I guess I will just have to pay attention to this.”
    – Might be worth taking a look here, if you haven’t already, http://www.libelreform.org

    Anyway, it’s great news and the coverage is hundred times what it was a year ago when there were only a handful of blogs discussing the case. Now it’s on every news site in the UK…

  5. dahduhon 01 Apr 2010 at 6:10 pm

    Good news all around.

    What is interesting is that this is in essence a ruling that science is not ‘fact’ but ‘opinion’. At first I couldn’t quite get my head around this paradoxical result: science is _fact_, surely? How could a statement subject to scientific verification be defended as opinion?

    But the judges write: “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”; in other words, have the court decide whether a scientific question was fact. During the hearing it was clear that the judges were very averse to this idea, as it would mean for example inviting expert witnesses who could just as easily disagree as agree depending upon their _opinion_ of the evidence. Ultimately an assessment of the evidence depends upon opinion, mistaken though it may be.

    And a reminder that all science is provisional. I think the judges got it exactly right.

  6. micwaton 01 Apr 2010 at 6:40 pm

    Does anyone know precisely why the legal costs are so high in the UK?

    Is it court filing fees or just the cost of the lawyers fees themselves.
    In Australia an appeal like this would cost approximately one eighth of that amount – and that’s primarily the fees paid to the lawyers.

    Is it just that the British Bar is so exclusive that they can command monopoly fees? Or is it really the UK Government charging people to use the courts?

  7. BillyJoe7on 01 Apr 2010 at 8:22 pm

    There were three phrases in SSs article that became topics for discussion on the internet:

    “not a jot” of evidence
    “happily” promote
    “bogus” remedies

    However, SS explained what he meant by “not a jot” and “bogus” in the very next paragraph of his article and, although the BCA disagreed with his opinion about what the evidence shows, the reason the BCA actually sued him was because of the word “happily”. They chose to interpret “happily” to mean that SS was accusing them of *deliberate* dishonesty.
    The first judge agreed.
    But SS never intended that meaning. He had never in all his writings accused the BCA or Chiropractors of *deliberate* dishonesty. So SS appealed.

    The three judges in the appeal court ruled that:

    “Once the allegation that there is “not a jot of evidence” to support the claims is properly characterised as a value judgment, the word “happily”, even if synonymous with “knowingly”, loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, “blithely”

    This amount to two rulings and their consequences:

    1) The judges regard Simon Singh’s statement, especially in relation to the the phrases “not a jot” and “bogus”, as *value judgements*.
    SS will find it easy defend them as *value judgements*.
    The judges did not regard his statement as *fact*.
    SS would have found it difficult to defend his statement as *fact*.

    2) The judges have left the interpretation of the word “happily” somewhat open. If it is to mean “knowingly”, that meaning loses its sting because his overall statement is regarded as one of *value judgement* rather than *fact*. However they clearly prefer to interpret “happily” as meaning “blithely”.
    In other words, SS does not have the impossible task of proving *deliberate* dishonesty on the part of the BCA.

    Of course, the BCA can appeal to the Supreme court.

    So far this has cost Simon Singh 200,000 pounds and 2 years of his life. However, if there is libel reform in the England in part as a result of this case, I think he will be well satisfied.

  8. Michael Kingsford Grayon 02 Apr 2010 at 7:31 am

    Does anyone know precisely why the legal costs are so high in the UK?

    Because the elite monarchical laws proffer favoured barristers with a privileged monopoly, enabling them to charge as they please.

  9. Dr Auston 02 Apr 2010 at 2:01 pm

    The word around the blogosphere suggests that the BCA’s libel lawyers, Collyer Bristow, charge their partners’ time at c. £ 350 (c US $ 530) / hr, though of course this is unconfirmed.

    It is also rumoured that some of the big London libel firms charge their senior partners’ time at £ 1000 (US $ 1550) per hr.

    There will also likely be charges for absolutely every single possible thing – letters, phone calls, photocopying, typing, sending law papers by messenger, even sitting reading what bloggers are saying about the case.

    English libel lawyers can also add on a “success fee” – a pro rata uplift for winning the case so that every directly billable $ becomes 1.2, 1.5 or even 2 $s.

    The London libel law firms, including Collyer Bristow, have been lobbying hard to defeat proposed measures to restrict these fees, arguing that to do this would “adversely affect access to justice” (sic).

    Since the person losing the suit has to pay the winner’s legal costs, this “success fee” for the winning lawyers comes out of the pocket of the person that loses the case.

    In some ways, the best analogy to the way English libel lawyers charge their services might be the way the US medical system bills people, with an added extra “success premium” if you are actually cured.

  10. HHCon 02 Apr 2010 at 4:03 pm

    Singh says that it cost him 200,000 pounds or $300,000 for his defence of a few words? Does he have a breakdown of legal fees and public relations costs?

  11. BillyJoe7on 02 Apr 2010 at 4:49 pm

    “English libel lawyers can also add on a “success fee” – a pro rata uplift for winning the case so that every directly billable $ becomes 1.2, 1.5 or even 2 $s. “

    This is called a Conditional Fee Arrangement or CFA.
    More on CFAs:

    http://jackofkent.blogspot.com/2010/03/how-conditional-fees-really-work.html

  12. Grant Jacobson 02 Apr 2010 at 6:41 pm

    On the subject of “how big a story is this”, I hope it makes up for the slow start. It’s taken two days for the wider science blogs to catch up with it. (Something to do with the holiday period, perhaps? I have to confess to being disappointed in the lack of response despite writing about this story as it emerged.*)

    I’m a little surprised as I’d have thought it ought to have broad interest to those in science communication in all it’s forms, especially as this is the context the Court of Appeal’s judgement was placed in.

    I’d encourage people to read the judgement statement (its a fine piece of writing, not legal mumbling) and the BCA’s statement. The ‘Jack of Kent’ blog is another good source. (If you can’t find these, they are linked in the article on my blog, linked on my name.)

    * My blog is a small affair hiding away on the New Zealand sciblogs collective. Also NZers take holidays seriously! (We get fewer visits on holidays.)

  13. BillyJoe7on 03 Apr 2010 at 5:30 am

    HHC,

    “Singh says that it cost him 200,000 pounds or $300,000 for his defence of a few words? “

    Yes, 2 years and 200,000 pounds to determine the *meaning* of those few words. And the BCA may yet appeal this determination to the Supreme Court. After that, there may be an actual trial in about 2 years time to see if his words were *defamatory*.

  14. Mojoon 03 Apr 2010 at 7:41 am

    @BillyJoe7

    “But SS never intended that meaning. He had never in all his writings accused the BCA or Chiropractors of *deliberate* dishonesty. So SS appealed.”

    Unfortunately, in English libel law the intention of the author is not relevant. What matters is the interpretation that the judge thinks can be put on the words complained of. If he thinks a defamatory meaning is within the range of meanings that could be applied, then that meaning can be used in deciding whether the publication was defamatory.

  15. BillyJoe7on 03 Apr 2010 at 8:33 am

    Mojo,

    “Unfortunately, in English libel law the intention of the author is not relevant. “

    Apparently.

    Neverthelss the word “happily” was found to be capable of two imeanings by the three judges, the other being “blithely”, and they seemed to prefer that meaning, adding that, even if it is interpreted to mean “knowingly”, the word loses its sting because they also decided that “not a jot” and “bogus” were value judgements and not statements of fact.

    Hmmm….I think I’m repeating myself

  16. HHCon 03 Apr 2010 at 11:06 am

    Based on the reported costs, Singh’s legal defense worked less than 3 months each year on his case. The hourly rates are standard for two years.

  17. dahduhon 04 Apr 2010 at 6:25 am

    Not all legal advice has to be expensive. Jack of kent has been offering some pretty good advice to the BCA for free, but they chose not to take it.

  18. HHCon 04 Apr 2010 at 12:35 pm

    BCA’s barristers did recommend to Singh free legal advice which he did not follow. So Singh says there should be sense about science, but the legal professionals say there should be sense about law. This case for both parties makes cents!

  19. Michael Kingsford Grayon 05 Apr 2010 at 6:14 am

    The learned Judge will refer to my previous submission that rests upon privileged monopoly.
    I rest my case, M’lud.

  20. […] Dr. Barrett needs both money and publicity to fight this. Please go here to donate money. Please spread this story around and keep plugging at it. Let’s turn this into an opportunity to expose both the sordid reality of present-day quackery and the perversion of law that the suit represents, exactly as has now happened in the Simon Singh case. […]

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