Feb 24 2010
Simon Singh Update
I have been following the story of the crazy libel laws in England, brought to public attention by the British Chiropractic Association (BCA) suing journalist Simon Singh because he dared to (correctly) state that many of their treatments are “bogus.”
In England (if I understand correctly, these laws apply only to England and not to all of the UK) when someone is sued for libel they bear the burden of proof that what they said was true. Further, the process is so expensive that it is easy for deep pockets to intimidate those with fewer resources into silence merely by the threat of suit.
Simon has bravely stuck with his suit, at great personal expense, largely to use it as a platform to lobby for rational libel reform.
There has been a positive update in the case itself. Originally it was judged that when Simon wrote that the BCA happily promotes treatments that are bogus, what he meant was that the BCA knows that their treatments are bogus. Therefore Simon has to prove that the BCA as an institution, and all of its members, believe their own treatments to be fake and ineffective.
This is an impossible standard, and clearly the case would be hopeless on those grounds. Simon was eventually granted the right to appeal that decision, and this appeal case is now ongoing.
As an aside, the BCA did a good job supporting Simon’s case when they defended themselves by providing evidence for their treatments. What they provided was a cherry-picked list of weak or irrelevant studies, showing all the more that their treatments are bogus. And by ignoring negative studies, one could reasonably make the argument that they know what they are doing – that they know their treatments are bogus.
In any case, We now learn from Jack of Kent ( a UK blogging attorney) that Simon has had a good day in court, and the judges seemed very favorably disposed toward his position. However, English courts are very conservative in that, even if the judges disagree with the previous decision, they may still be reluctant to overturn the lower court. They have yet to make their final decision.
Jack wrote of the case:
It had been thrilling to watch three of the country’s senior judges tear into the BCA case, even though it was sad that it had come this far.
Cranks rarely impress experienced judges, who understand something about the rules of evidence and logic (the Dover vs Kitzmiller trial is an excellent example of this).
I’ll keep you updated as the trial proceeds. The bigger story, of course, is the attempts to reform English libel law. This is a free speech issue, and one that every skeptic and scientist should be concerned with.
16 Responses to “Simon Singh Update”
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“(if I understand correctly, these laws apply only to England and not to all of the UK)”
- to England and Wales. Scotland and Northern Ireland have separate judicial systems
Steve notes the reluctance to overturn a lower court decision; but the judge in this case has been severely criticized in the past. In addition to changing the definition that the lower-court judge saddled Simon with, the appeal may also decide against the lower court on the ruling that Simon’s offending article was a statement of ‘fact’, rather than ‘opinion’ (it was on the op-ed page). If I understand correctly, an ‘opinion’ is not subject to libel and that would just about end it in Simon’s favor.
BTW, Simon would like everyone (not just UK citizens) to sign an appeal to revamp the libel laws http://www.randi.org/site/index.php/swift-blog/891-from-simon-singh.html
Steve, thanks as always for your blog and in this case I appreciate you spending your time to further highlight the shameful state of English libel law. If the growing media interest in Singh’s, and other high-profile cases, causes enough embarrassment so that the government is forced to act, then I think it will legitimately be claimed as another success of the blogosphere.
However I am about to do something that I never thought I would, by issuing a minor correction to your statement about legal jurisdiction. I apologise if this is seen as nit-picking, but, as a Welshman, I feel almost duty-bound to point out that the English legal system also applies to Wales and is properly referred to as the Law of England and Wales. You are correct to mention that the rest of the UK is unaffected but Wales most certainly is!
Anyway fingers crossed the Court of Appeal finds in Singh’s favour and thanks again for all you work on the blogs and podcast.
Just to be “that guy” and correct you slightly: English law generally applies to Wales as well as England. Scotland has its own legal system.
I can’t help but wonder if maybe someone on the scientific medicine side of the debate, who has some extra cash, should maybe sue one of the woo-woo types for slander when they imply – and they do – that their pure water is better treatment than real medicine.
You know, give them a taste of their own medicine, so to speak.
I’ll bet the resistance to libel law reform would evaporate quickly after that.
I would love it if the judges found that no libel occured since BCA treatments are all, legally speaking, bogus. But I guess if I was Singh, the case being thrown out because it was found to be an opinion would work for me.
This makes me wonder how these libel laws are written and applied. How do all of the British tabloid papers operate if the burden of proof is on them? Certainly the don’t all operate outside of England, take the “The Sun” for example. Unless I’m wrong and all of the articles in “The Sun” are completely supported by concrete evidence. Also, isnt the idea of besmirching a reputation dependent on the prelibel value of that reputation?
“Also, isnt the idea of besmirching a reputation dependent on the prelibel value of that reputation?”
You’d think so, but that might not work in practice. For example, Roman Polanski – who can be perfectly safely described as a fugitive child molestor – successfully argued that his reputation had been damaged by a claim that he sought socially inappropriate but consensual sex with an adult.
I continue to be baffled by the assertion that these libel laws are somehow ‘crazy’. If somebody accuses me of a nefarious act, it’s up to them to prove that I did it, the burden is not on me to prove my innocence.
If someone accused Dr Novella of eating babies, would it be up to him to prove that he hadn’t?
The controversy here is not that it’s somehow bizarre that an accuser has to provide evidence for their accusation, but that Simon’s writing was misinterpreted ie that he’s being asked to prove an assertion that he never actually made.
The high cost of these cases is an issue. But it’s a different issue.
@SteveA on 26 Feb 2010 at 7:08 am
I am afraid you are mistaken. Libel law in England and Scotland puts the burden of proof on the accused. Simon must prove he did not commit libel.
@Joe
If I am reading SteveA’s post correctly, he isn’t denying that the UK libel laws require that the defendant prove his statements to be true. He’s questioning whether such a rule should be called crazy, a point with which I have some sympathy.
To expand his example, if I posted all over the web ( or just in medical sites, or just in those likely to be read by his colleagues ) that Dr Novella eats babies, how on earth would he prove that he doesn’t? So it is surely reasonable that I should have to prove that he actually does eat babies, and be held accountable if I can’t.
I’m sure, however, that we agree that it is crazy to use a court of law to decide a point of scientific debate, especially since the BCA declined the immediate offer of a right of reply in the same medium.
In any case, SS is apparently being sued, not for suggesting that the treatments are bogus, but for allegedly suggesting ( which he denies ) that the BCA recommended them knowing that to be the case. As Dr Novella points out, the lack of evidence to support their position is readily available and obvious to anybody of average intelligence, so in my opinion accusing them of NOT knowing the treatments were bogus might well be more defamatory than the suggestion that they knew!
[ Note to Mr. Benneth: Dr Novella does NOT eat babies, ok? This is just a silly hypothetical being used to illustrate a point! Anyway, they taste REALLY bad! ]
Regarding comments by SteveA and Kdv:
The characterization that the issue is about who has the burden of proof is a bit misleading, because in either system the crime at issue (if one is being commited) is being commited by the one making the statement. If we require anyone who makes a statement about someone to prove that the statement is true, then we are deciding that freedom of speech is a secondary consideration. It would be a “guilty until proven innocent” senario.
In the ridiculous senario mentioned, it is not that Steve would have to prove that he didnt eat babies, but he would have to prove that the other party commited a crime in stating that he ate babies (i.e. that there is no basis for that statement, that it hurt his reputation, etc). Its not a perfect system, but the burden is on the right party, because the lawsuit is the real “claim”… that a crime was commited against someone’s reputation. This is because we value freedom of expression, and any infringement upon this should be for good reason.
@ccbowers
I think I understand your point, and, while intending no disrespect, disagree. Throughout, you use the term “crime” for the initial (alleged) defamation. Crime is fairly universally defined as breaking of the law, which is normally tried in a criminal court, and with legal penalties imposed.
Libel and slander are usually not crimes (1), and they do not attract criminal penalties. The major difference ( in most Western countries, anyway ) is that while a criminal prosecution needs to be proven “beyond reasonable doubt”, a civil action can be decided on the balance of probabilities. Penalties, if any, consist of restitution to the offended party, but not legal sanctions.
Defamation is also different from criminal action in that the person initiating the action is, in a sense, “the accused”. To even get started, they need to show that the words complained of are defamatory, i.e. likely, if believed, to damage their reputation. If I accused Dr Novella of eating babies, that would be defamatory, whether true or not. If I accused him of eating potatoes, it would not be, again whether true or not. ( Unless he lived in some place where potatoes are worshipped as gods. )
Although I need to “defend” my statement, that is not the same as being a “defendant” in a criminal trial. If I defend it on the basis of truth (truth is considered in many, but not all, places to be amongst the acceptable responses to a lawsuit seeking damages), I need to establish its truth. If I denied being responsible for the original statement its truth would be immaterial.
To get back on topic
, as I understand the Singh case, the issue ( at this stage ) is not over whether his statements were defamatory, nor their truth. I believe the current dispute is whether he accused the BCA of promoting ineffective treatments without implying they do so knowingly (his claim), or with that implication. (theirs). This issue is for the court to decide, and neither side has to prove anything, although each can submit reasons for their cases.
That he should have to justify what he wrote is, in my opinion, fair. That he should have to justify what he didn’t write is, again in my opinion, unfair.
Disclaimer: I am not a lawyer. I trust media reports of court proceedings only because they can be in big trouble if they give false or misleading accounts.
(1) There is, at least here in Australia, a crime of “criminal defamation”. For an example, feed “Al Grassby” into wikipaedia.
After your rant about my use of the word crime (admittedly technically incorrect in most jursidictions, but I don’t know what is the appropriate term is in this case), lets get to some of your points:
1. “If I accused Dr Novella of eating babies, that would be defamatory, whether true or not.”
— Really? in what countries? I’m sure it exists somewhere, but in the vast majority of places and situations its not defamation if it is true. Your major point is just simply false. Where truth is not a valid defense for defamation they do not have freedom of speech, IMO.
2.”as I understand the Singh case, the issue ( at this stage ) is not over whether his statements were defamatory, nor their truth. I believe the current dispute is whether he accused the BCA of promoting ineffective treatments without implying they do so knowingly (his claim), or with that implication. (theirs).”
— Again, the truth of his statment does matter. Although what his statement meant was in question, in either event if his statement is true then there is no defamation. Whether his statements are defamation is also important, although I don’t think things have progressed that far yet.
@ccbowers
> After your rant about my use of the word crime
Please read my paragraph again. Then look up “rant” in a dictionary. Are you seriously suggesting my statements were a “rant”? I specifically stated that I was not trying to cause offense. You concede that you were “technically incorrect”, but the issue is more than technical. The difference has major implications, in terms of the levels of evidence required and the penalties involved, as well as totally obfuscating the concept of who is the “defendant”. I corrected you because it is very relevant indeed to the topic under the discussion, not to win some sort of pissing contest.
Unfortunately, uses of words like “rant” are often the reason that internet discussions so often degenerate into exchanges of mutual abuse. I think we both have better things to do with our time.
> Really? in what countries? I’m sure it exists somewhere, but in the vast majority of places and situations its not defamation if it is true. Your major point is just simply false. Where truth is not a valid defense for defamation they do not have freedom of speech, IMO.
I think we are talking at cross purposes. Your references to “countries” and “places” indicates, I think, that you are referring to the legal ramifications of defamation. If so, I have no real argument with your point. However, I was actually talking about what constitutes defamation, not its legal consequences. I readily conceded that truth is a legitimate defense in law.
Here in Australia, a quick web search found me a site run by the Legal Services Commission of South Australia, where their legal handbook contains a section about defamation.
If you have a look, you will find a page called “What is Defamation”. It gives a pretty clear summary, and nowhere is truth mentioned. In subsequent pages, when discussing legal actions, truth is very much in evidence. [ Pun definitely intended!]
In England, Leon Uris’s book QBVII is based on a trial where Uris himself was sued for defamation for his book Exodus, wherein he accused a doctor of having performed awful experimental surgery for the Nazis.
He was found to have committed defamation, in that he certainly brought his subject into disrepute. However his defense of truth meant that the damages awarded were one halfpenny, obviously a ludicrous sum. In other words, the court found that the words were libelous and thus required compensation, but their truth meant the the amount awarded was derisory. He committed libel, but had the truth defense. It was not ruled that he did not commit libel.
> Again, the truth of his statment does matter. Although what his statement meant was in question, in either event if his statement is true then there is no defamation. Whether his statements are defamation is also important, although I don’t think things have progressed that far yet.
I agree, * in the context of the court case *. As I read the proceedings, Simon’s defense is not that his words weren’t libel, but firstly that they were justified by truth, and secondly that they were published as opinion rather than fact, again a legitimate defense. If he had accused them of eating potatoes, the case would have been thrown out immediately, irrespective of its truth, because the statement would easily be defended as not being defamatory.
The currently disputed issue, as to whether the BCA were accused of *knowingly* promoting worthless treatments or not, is very important. If the appeal does not succeed in reversing an original ruling to that effect, it will be nearly impossible for Simon to win, in my opinion. How does one prove somebody else’s thoughts?
I hope the fact that we disagree on some points does not obscure the fact that we agree on the most important issues here.
[ If I am mistaken on any point, any legal experts reading this are welcome to jump in ]
Ok, just a followup here.
I’ve just read through the entire transcript of Simon’s appeal hearing. When I say “just”, I really mean over several hours, with breaks for toilet, eating, and tickling the cat. It is very long, and a lot of it incomprehensible to non-lawyer, relying on references to prior rulings that most of us would never have heard of.
It’s available on Jack of Kent’s excellent blog. I am not a lawyer [IANAL] but he is. If you want to read it, go ahead, but not if you don’t have lots of spare time.
I just thought I’d share a couple of things that interested/amused me. Others may differ
It would appear that the BCA’s original complaints to Simon and the Guardian revolved around only his use of the term “not a jot of evidence”. The BCA claimed they had a great deal of evidence for the practices being discussed. The Guardian immediately invited them (twice) to submit that evidence, with the intention of publishing a correction and apology should it appear. It never did. Failing that, the Guardian offered the BCA the opportunity of writing their complete rebuttal in a similar space and with similar promience to Simon’s article. Again, nothing was forthcoming ( a point on which the Lord Chief Justice expressed some puzzlement ).
The BCA was also offended because they claim that “not a jot” meant no evidence at all, and their QC argued that even anecdotes were evidence. The judges seemed to dismiss this out-of-hand, pointing that if evidence wasn’t reliable, then it wasn’t evidence in the first place.
The complaint that now seems central, that Simon had implied they knowingly promoted useless treatments, seems only to have appeared when the court papers were actually served.
There were a few things that I found amusing. For example, when giving the BCA’s QC a hard time:
MS ROGERS QC: I am afraid to say that it is the combination, and to say “Well, would it be actionable without one element or without the other”, I will happily think about this. It would be a separate question of whether or not —-
THE LORD CHIEF JUSTICE: I think you may need to have time to think about it and have a consultation in your chambers in a week’s time.
LORD JUSTICE SEDLEY: You can take the Fifth!
For the benefit of American readers, I should point out that most English would only know of the Fifth Amendment to the US constitution through American TV shows. It certainly holds no sway in England.
Or this:
THE LORD CHIEF JUSTICE: I am not sure I would have liked to be the losing party.
MS ROGERS QC: Well, no-one likes to be the losing party.
THE LORD CHIEF JUSTICE: No, but not with eight judges agreeing with you.
MS ROGERS QC: Of course there is nowhere to go after the Grand Chamber, but there you go.
THE LORD CHIEF JUSTICE: Probably the Bankruptcy Court.
However the one that literally made me laugh out loud was this one. I am not making this up.
LORD JUSTICE SEDLEY: You see underlying all this is another area of possibly and possibly not verifiable fact, which is whether homeopathy works for such diseases as colic and asthma.
MS ROGERS QC: Chiropractic rather than homeopathy.
LORD JUSTICE SEDLEY: Sorry. Perhaps it was in this morning’s papers. Whether chiropractic works for infantile asthma or colic
I assume this was a slip of the tongue by Lord Justice Sedley, and if so, it is an incredibly funny one. However, it is conceivable that it was not-so-accidental… in which case, that man has a *wicked* sense of humour! I wish I’d been there to see the faces of Ms Rogers and her clients … purple is a favorite colour of mine!
In closing, I’d like to revisit an issue I’ve discussed in earlier posts. There were several points I thought interesting, but this one is fairly clear. Ms Rogers is supporting her argument by quoting a ruling from an apparently well-known previous case:
“It may often be difficult to distinguish between assertions of fact on the one hand and statements which represent the inferences drawn by the commentator on the other hand. The distinction must be made, however, because, though the defence of fair comment may be available to protect a defamatory inference even though untrue, it cannot protect a defamatory statement of fact even though proved to be true unless justification is also relied upon.”
As stated previously, IANAL. However this text is quoted by a QC from a trial judge’s ruling, in front of three of England’s most senior judges, including the Lord Chief Justice. I suspect we could probably find a lawyer somewhere in there.
It has been suggested in this thread, “Although what his statement meant was in question, in either event if his statement is true then there is no defamation”
If that is the case, how is it that none of these rather prominent legal minds picked up “it cannot protect a defamatory statement of fact even though proved to be true” to be an error? It clearly states that there *can* be a defamation, even though the statement is true. ( But, as I previously suggested, that defamation is open to the defense of justification for various reasons )
Enquiring minds want to know! ( So does mine! )