…because they blog under the shadow of the United Kingdom’s insane libel laws.
Witness this travesty of a ruling on the libel case against Simon Singh by the British Chiropractic Association, as related by Jack of Kent.
I first learned about the UK’s exceedingly plaintiff-friendly libel laws when, shortly after I became interested in Holocaust denial, I followed the libel case against Holocaust historian Professor Deborah Lipstadt brought by Holocaust denier David Irving for, well, quite properly calling him a Holocaust denier in one of her books. What makes British libel laws so plaintiff-friendly is that the burden of proof is not on the plaintiff to show that what was written by the defendant is untrue (or written with a “reckless disregard for the truth”) and defamatory, but rather on the defendant to demonstrate that what he or she wrote is true. It is true that Professor Lipstadt ultimately won her case, her victory all the more impressive given how plaintiff-friendly British libel law is and how she in essence had to “prove the Holocaust” in court and why what David Irving writes and says about it constitutes Holocaust denial, but it took many months and a couple of million dollars. If her publisher hadn’t stuck with her, she’d have probably had to settle. Indeed, that was almost certainly David Irving’s expectation when he brought the case–that Professor Lipstadt would settle. She did not and, fortunately, won big. It could have gone the other way if she had had a less skillful legal team.
Since I’ve become interested in “alternative” medicine, I’ve seen examples of the similar abuse of the law, in which various “alternative” practitioners tried to use the law to silence bloggers whose opinions they did not like or writers who criticized them. The most famous example that comes to mind was HIV/AIDS denialist and vitamin magnate Matthias Rath going after Ben Goldacre. Again, it’s true Goldacre won, but only because his newspaper stuck by him and paid for his legal defense. This time around, the British Chiropractic Association is going after Simon Singh for this passage in an article he wrote:
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.
In the U.S., it’s highly unlikely that a lawyer would even be willing to take this case as anything other than cash on the barrelhead, so slim would be the chance that it would make it even past a preliminary hearing. Yet, over Thursday and Friday, Singh has had his first preliminary hearing and his first loss. Let Jack of Kent explain:
As part of libel litigation, the court does have to rule as to the meaning of the relevant passages. This ruling in turn provides which are the appropriate defences. If it is ruled that the passage was “comment” then the defendant has to prove that it was a “fair comment”. If the passage was a statement of fact, then the defendant has “justify” the fact.
And the ruling:
The judge ruled that, notwithstanding that the passage in Singh’s article was a comment piece and published on the comment page, it was a statement of fact. This was an unhelpful ruling, and my heart sank for a moment, but it was not one for which Singh was unprepared. Singh would have preferred to have had a comment ruling, but he did have a full justification defence too, see here. So not ideal, but not a disaster.
But the judge continued. The word “bogus” meant deliberate and targeted dishonesty. So it did not mean that chiropractic for the six named children’s ailments (including asthma) was simply wrong, or that it was contrary to established medical practice or research, or even that it completely lacked evidence.
“Bogus” meant a lot more. The judge held that by the mere use of the word “bogus” Simon Singh was stating that, as a matter of fact, the BCA were being consciously dishonest in promoting chiropractic for those children’s ailments.
It doesn’t matter that Singh had earlier in his article defined “bogus” as “ineffective” not “deliberate and targeted” dishonesty. The consequence is this:
The ruling means that, as it stands, Simon Singh would have to prove at full trial that the BCA were being deliberately dishonest. This is not only extremely difficult but it was undoubtedly not Simon Singh’s view in the first place. The BCA, as with many CAM practitioners, may well be deluded, irresponsible, and sometimes rather dangerous; but calling their promoted treatments “bogus” was not an express statement of their conscious dishonesty.
Indeed, unless there is hard evidence of dishonesty, it may not even be professionally possible for Simon Singh’s lawyers to put the required case to the court: English barristers and solicitors are prohibited from alleging fraud unless there is sound and cogent evidence before them on which to base the allegation.
Basically, it would be very unwise and perhaps impossible for Simon Singh to go to full trial with this ruling on meaning.
In the wake of this nonsensical ruling, Singh apparently has three options. Option one: Appeal the ruling on the meaning of the word “bogus,” which has a high probability of failing, given that higher courts generally defer to the lower courts on such matters. Option two: Take his case to the European Court of Human Rights as a breach of Article 10 (freedom of expression), which he can’t do unless he first appeals and continues until he exhausts all of his legal options in British courts. This could take three years, and there is no guarantee that this will succeed, either. Or…
Option three: Settle.
Singh may have no choice in the matter but to settle. I hope he doesn’t settle, but I understand if he does. He has such an uphill battle from here that it may not make sense to continue. I wonder if there is a legal defense fund to which skeptics may contribute. I’d be willing to make a contribution, for sure. Unfortunately, unless Singh is made of money, option three is clearly the option he will most likely be forced to take.
What of the broader picture? Clearly the U.K., due to its plaintiff-friendly libel laws, is already an inhospitable place for skeptical bloggers and writers. In essence, it’s not even necessary to make an actual factual claim in order to find yourself at the wrong end of a libel suit by a powerful and wealthy organization, with little help. In fact, even if you define a word you are using for purposes of your criticism of “alternative” practices, apparently that doesn’t necessarily protect you from a judge’s defining the word as he sees fit.
Think about it. All Singh did was to make two arguments:
- “Group A is promoting treatment X.”
- “Treatment X is ineffective against conditions Y, and Z.” (Or: “There is no scientific evidence to support the efficacy of treatment X for conditions Y and Z.”)
Another way to phrase it:
- “Group A is promoting treatment X.”
- “Treatment X is bogus.”
It’s a non sequitur to conclude from 1 and 2 that group A is being deliberately dishonest. The alternate explanation is that group A truly believes in the bogus treatment X and is honest, but mistaken, in its belief. I’ve made this sort of argument on more occasions than I can remember over the four years that I’ve been blogging. If I were in the UK and happened to make it about a litigious group, I could easily find myself in the same pickle that Singh is in. As The Lay Scientist puts it:
Simon Singh is the victim on this occasion, but if this nonsense continues, then the conditions in which the rest of us – writers and bloggers like myself or Ben Goldacre – have to operate will become ridiculously savage. We’re already at a massive disadvantage from the fact that it takes ten seconds to make a claim and ten hours to carefully prove it wrong. Now the legal system is ensuring that it costs ten pence to make a dodgy medical claim and ten thousand pounds and a court case to attack it.
I feel for you my skeptical British brothers and sisters. I also admire you. If I lived in the UK, I don’t know if I would have intestinal fortitude to keep blogging if Singh settles or appeals and loses. It’s times like these when I truly cherish the wisdom of our Founding Fathers for having enshrined freedom of speech in the Constitution as part of its First Amendment. True, it doesn’t entirely prevent legal thuggery such as what the British Chiropractic Association is doing, but it does make it a lot more difficult.