The Idiot's Guide To Libel

This week, the world of logic, rationality, science and evidence enjoyed a small yet important victory.

Simon Singh is a British author whose impressive body of work covers a range of subjects including advanced mathematics, cryptography, big bang theory and alternative medicine. His books include Fermat’s Last Theorem, concerning the world’s most notorious mathematical formula (which Singh himself later made a documentary about in 1996, winning a BAFTA in the process), The Code Book about the history of cryptography, codes and ciphers (accompanied by a five-part Channel 4 series called The Science of Secrecy presented by Singh himself) and the excellent Trick or Treatment, a fascinating exploration of the world of alternative medicine, co-authored with Dr Edzard Ernst, the first professor of Complementary Medicine in the UK. The book is dedicated, tongue placed most firmly in cheek, to HRH The Prince of Wales, a man whose love affair with alternative medicine has been well publicised.

Simon Singh is, in short, a rather clever and successful man.

However, in 2008, his world was turned upside down when he published an article in The Guardian about Chiropractic.

For those unfamiliar with it, Chiropractic is a branch of alternative medicine which suggests that the root cause of most diseases is imbalances in the spine. These imbalances have been given the name ‘subluxations’, a rather meaningless phrase used to describe something that, frankly, doesn’t exist.

The founder of Chiropractic, Daniel David Palmer, posited that “99% of all diseases are caused by displaced vertebrae”, and immediately set about supposedly curing deafness, heart problems and goodness knows what else. In the credulous 1860’s, this was seen by some as a major medical breakthrough.

Since then, modern medicine has advanced enough that some chiropractors now distance themselves from Palmer’s ‘cure-all’ theory and content themselves instead with merely trying to resolve troublesome back pain. Indeed, there is some evidence to suggest that Chiropractic therapy is effective in this narrow field.

Other chiropractors, however, have made some rather extraordinary claims about their treatment, stating that it’s effective for a sizeable list of ailments. There is, of course, not a shred of reliable evidence to support this assertion, no matter how many poorly conceived trials the chiropractors pull out of their back pockets.

To commemorate Chiropractic Awareness Week in 2008, Singh published his aforementioned article, which contained the now infamous statement: “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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

The BCA immediately threw all of its toys out of the pram and demanded a retraction and apology from Singh who, obviously, declined to provide either. In the spirit of honest and open debate, The Guardian offered the BCA the right of reply so they could present their own side of the argument. Tellingly, the BCA declined. What they did next, beggars belief.

In July 2008, the BCA sued Singh for libel.

Their case hinged on the phrase “happily promoted bogus treatments” as they believed the wording implied that they knew certain Chiropractic treatments didn’t work, but still knowingly supported and encouraged them. As such, they felt they were being accused of acting dishonestly.

The intention of Singh’s words was to say, effectively, that the BCA were blithely promoting treatments that simply didn’t work. Sadly, his choice of the words ‘happily’ and ‘bogus’ had backfired as he now found himself embroiled in a completely unnecessary, and arguably unethical, legal quagmire that has subsequently consumed 2 years of his time and something in the region of £200,000 of his money.

There were a number of milestones throughout the ensuing libel case including a High Court ruling by Justice Eady that Singh’s article “is in my judgement the plainest allegation of dishonesty and indeed it accuses them (the BCA) of thoroughly disreputable conduct.” Eady therefore upheld the BCA’s pleaded meanings and classified Singh’s comments as “factual assertions rather than the mere expression of opinion”.

This meant that Singh was now, bizarrely, backed into a corner whereby he had to defend a meaning implied by his article that he hadn’t intended in the first place.

In June 2009, Singh’s legal team made a paper application asking for permission to appeal Justice Eady’s ruling on the article’s meaning. This was rejected by Eady in July 2009, so an oral hearing on leave to appeal was heard in August 2009.

In October 2009, that leave to appeal was granted. Over a year into the case, and after an extraordinary amount of money had already been spent, the arguments over the intention of Singh’s words continued and the case proper hadn’t even started yet.

After much contemplation and discussion, a decision was announced on 1^st April 2010 by the Lord Chief Justice.

In his judgement, the Lord Chief Justice said “We consider that the judge (Eady) erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA’s claims as an assertion of fact. It was in our judgement a statement of opinion, and one backed by reasons.”

The appeal was allowed, and Singh could now claim that the paragraph in question was ‘fair comment’.

This changed everything. Singh no longer needed to defend a meaning that he hadn’t intended. This was a small, yet important victory, but the journey was seemingly far from over.

Libel law opponents

During this period, interest in UK libel laws grew at an incredible rate and, soon, an impressive band of supporters had grown around the case. The independent charitable trust Sense About Science, set up to promote respect for good science and evidence for the public, joined English PEN () and Index on Censorship in a coalition to campaign for Libel Reform. The resulting project ‘The Libel Reform Campaign’ organised a petition urging libel reform within the UK and, within a few months, had over 50,000 signatures, including some from high-profile individuals including Ian Hislop, Stephen Fry, Ben Goldacre, Jonathan Ross, Shazia Mirza and Marcus Brigstocke.

On 14^th March 2010, The Palace Theatre, London was home to The Big Libel Gig, a fundraising benefit for the Coalition of Libel Reform. I was fortunate enough to get a ticket and enjoyed a fantastic evening of conversation, comedy and song which featured such people as Robin Ince, Dara O’Briain, Tim Minchin, Dr Evan Harris, Dr Brian Cox and Simon Singh himself. The building was full to the rafters with ordinary members of the public who supported Singh’s case and, more importantly, wanted the introduction of major reforms in Britain’s libel laws.

Suddenly, libel law was becoming a hot topic, and with very good reason. Libel laws in the UK are reviled and feared throughout the world. You see, neither the defendant nor the claimant need to be resident in the UK to be prosecuted here. Indeed, they don’t need to have even stepped foot on our soil. All that is required is for their supposedly libellous comments to have been available in this country.

One example involved the American author Rachel Ehrenfeld who published a book entitled Funding Evil: how terrorism is funded and how to stop it. Ehrenfeld’s book was published in New York, but not the UK. Within the book, she made reference to a Saudi billionaire, Khalid bin Mahfouz and his financial activities. Bin Mahfouz decided to sue Ehrenfeld through the UK courts. But how was this possible when the book was not available to read online and had never been published here?

It transpired that 23 copies of the book had been purchased in the UK via Amazon.com. This meant that, technically, the book had been made available in our country and, accordingly, the case could be heard here. Ehrenfeld refused to travel to the UK for the case and, in her absence, a judgement was made in the amount of $225,000, which she has refused to pay.

Cases like this are part of an extraordinary upsurge. The United Kingdom has become the world leader in what has been termed ‘Libel Tourism’.

The MP Denis MacShane states, “The practice of libel tourism as it is known – the willingness of British courts to allow wealthy foreigners who do not live here to attack publications that have no connection with Britain – is now an international scandal. It shames Britain and makes a mockery of the idea that Britain is a protector of core democratic freedoms.”

With the ever-present threat of libel action hanging over the head of anyone who makes their content available in the UK, some organisations have already started to take matters into their own hands to mitigate the risk.

Click on this link for The National Enquirer, an American tabloid with a weekly circulation of almost 800,000. Go on, click it now.

http://www.nationalenquirer.com/

You should see the words ‘Page unavailable/under construction’. Are they having trouble with their website? Have they forgotten to pay their hosting bills? On the contrary – the problem is that you are trying to visit their website from a British IP address and The National Enquirer, fearful of prosecution under our draconian libel laws, has made their online content unavailable in the UK.

Other major US newspapers, including The Boston Globe and The New York Times are actively considering halting the publication of their media in the UK due to the threat of libel. How long before larger and larger chunks of the world-wide-web start winking out of existence for readers in Britain?

A sudden change

After Simon Singh’s success in the 1^st April ruling on the meaning of his words, his legal team were busy formulating the next stage of his defence whilst Singh himself presumably wondered how much longer this would take and what it would cost him.

Suddenly, everything changed once again.

On 15^th April 2010, the British Chiropractic Association discontinued its libel action against Simon Singh.

In a press release, the BCA stated that the ruling by the Lord Chief Justice “provides Dr Singh with a defence such that the BCA has taken a view that it should withdraw to avoid further legal costs being incurred by either side.”

Some might suggest that the BCA, faced with the prospect of having to fight Singh on a level, evidence-based playing field, simply couldn’t compete and decided to bow out ‘gracefully’ before losing any more money. One could, in theory, postulate that this in itself actually supports the skewed meaning the BCA applied to Singh’s words – they will knowingly promote treatments that they know to be bogus, acting in a dishonest fashion until they are asked to provide evidence that they know simply doesn’t exist. Some might say that, I couldn’t possibly comment.

In fairness, the BCA has previously tried to substantiate its claims by providing evidence of the efficacy of chiropractic for various diseases. In a June 2009 press release, it stated “In the spirit of a wider scientific debate, and having taken appropriate professional advice, the BCA has decided that free speech would best be facilitated by releasing details of research that exists to support the claims which Dr. Singh stated were bogus. This proves that far from there being “not a jot of evidence” to support the BCA’s position, there is actually a significant amount.”

The ‘evidence’ provided was a laughable collection of 29 citations which as Martin Robbins clarifies in his Guardian article of 1^st March 2010, “was ripped apart by bloggers within 24 hours of publication, before being subjected to a further shredding in the British Medical Journal. It emerged that 10 of the papers cited had nothing to do with chiropractic treatment, and several weren't even studies. The remainder consisted of a small collection of poor-quality trials.”

Robbins goes on to say that, “More seriously, the BCA misled the public with a misrepresentation of one paper, a Cochrane review looking at the effectiveness of various treatments for bed-wetting, claiming that the authors had simply concluded that, "there was weak evidence to support the use of [chiropractic]."

In fact the quote in full reads as follows:

"There was weak evidence to support the use of hypnosis, psychotherapy, acupuncture and chiropractic but it was provided in each case by single small trials, some of dubious methodological rigour."

Now even the General Chiropractic Council has disowned the claims of the BCA – the same claims that lie at the centre of its libel action against Simon Singh.”

Vindication

The BCA’s 15^th April press release said, “Simon Singh has said publicly that he had never intended to suggest that the BCA had been dishonest. The BCA accepts this statement, which goes some way to vindicating its position.” Of course, Singh made this comment way back at the beginning of the libel case, but the BCA, perhaps entirely coincidentally, did not find this acceptable when there was still a strong chance they may use the UK’s seemingly biased libel laws in their favour.

Contrary to the BCA’s words, it is Singh, not them, who has been vindicated. Science, fair comment, logic and reason have won the day, despite, not because of, the UK’s notorious libel laws. One of the most worrying aspects of this whole debacle has been the fact that there is no guarantee Singh will ever recoup his full costs. An allegation of libel is made, two years of legal to-ing and fro-ing take place, the libel case is withdrawn, yet Singh is still potentially out of pocket.

Despite the cost to Singh, the case has had some benefits, most notably that the subject of libel reform is in the public spotlight. All three of the UK’s major political parties have pledged to radically overhaul the existing laws. The Liberal Democrats gave their support at a very early stage, with Labour and the Conservatives jumping aboard later in the game, presumably when it became clear how strong public feeling was. Singh may not get his money back in full, but his trials and tribulations may yet prove to have a significant effect on our country, its laws and our Internet freedoms.

The big question is this: was the BCA right to sue Singh?

The answer, according to many, is ‘No’. In the world of science and medicine, disputes are resolved by discussion, examination of evidence, testing, peer review and other methods. Legal action has no place in the realm of scientific debate. I can do no better than quote Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, himself quoted in the judgement of the Lord Chief Justice:

“[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.”

In their haste to silence Simon Singh rather than engage him in meaningful, evidence-based discussion, the BCA has thrown the reputation of itself and all chiropractors into disrepute. The damages the BCA has been ‘awarded’ are not those it had in mind two years ago, but are, arguably, extremely well deserved.