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net.wars: "Bogus"

There is a basic principle that ought to go like this: if someone is making a claim that a treatment has an impact on someone's health it should be possible to critique the treatment and the claim without being sued for libel. The efficacy of treatments that can cost people their lives – even if only by omission rather than commission – should be a issue where the only thing that matters is the scientific evidence.

I refer, of course, to the terrible, terrible judgement in the case of British Chiropractic Association v. Simon Singh. In brief: the judge ruled that Singh's use of the word "bogus" in commentary that appeared in the Guardian (on its comments pages) and which he went on to explain in the following paragraph:-

The excellent legal blogger Jack of Kent (in real life, the London solicitor specialising in technology, communications, and media law David Allen Green) wrote up the day in court and also an assessment of the judgement and Singh's options for discussion.

None of it is good news for anyone who works in this area. Singh could settle; he could proceed to trial to prove something he didn't say and for which under the English system his lawyers may not be allowed to make a case for anyway; or he could appeal this ruling on meaning, with very little likelihood of success. Singh will announce his decision on Monday evening at a public support meeting (Facebook link)

A little about the judge, David Eady (b. 1943). Wikipedia has him called to the bar in 1966 and specializing in media law until 1997, when he was appointed a High Court judge. Eady has presided over a number of libel cases and also high-profile media privacy cases.

Speaking as a foreigner, this whole case has seemed to me bizarre.

For one thing, there's the instinctive American reaction: English libel law reverses the burden of proof so that it rests on the defendant. Surely this is wrong. But more than that, I don't understand how it is possible to libel an organisation. The BCA isn't a person, even if its members supply personal services, and Singh named no specific members or officers.

I note that it's sufficiently bizarre to British commenters that publications that normally would never reprint the text of a libel - like The Economist – are doing so in this case and analysing every word. Particularly, of course, the word "bogus", on which so much of the judgement depends. The fact that Singh explained what he meant by bogus (in the paragraph after the one in dispute) apparently did not matter in court.

We talk about the chilling effects of the Digital Millennium Copyright Act, but the chilling effects of English libel law are far older and much more deeply entrenched. Discussions about changing it are as perennial and unproductive as the annual discussions about how it would be a really good idea to add another week between the French Open and Wimbledon. And this should be of concern throughout the English-publishing world: in the age of the Internet English courts seem to recognise no geographical boundaries. The New York author Rachel Ehrenfeld was successfully sued in Britain over allegations made in her book on funding terrorism despite the fact that neither she, the person who sued, nor the publisher were based in the UK. The judge was… David Eady.

Ehrenfeld asked the New York courts to promise not to enforce the judgement against her. When they couldn't (because no suit had been filed in New York), the state passed a law barring courts from enforcing foreign libel judgements if the speech in question would not be libellous under US law. Other states and the federal government are following to stop "libel tourism"

None of that, however, will help Simon Singh or anyone else who wants to critically examine the claims of pseudoscientists.

The Skeptic, which I founded and edited some years (look for our Best Of book, soon) routinely censors itself, as does every other publication in this country. There are certain individuals and organisations who are known to be extremely litigious, and they get discussed as little as possible. Libel law is supposed to encourage responsible reporting and provide redress to wronged individuals, but at this virulent level libel law is actually preventing responsible reporting of contentious matters of science and the individuals who are wronged are the public who are at risk of being deprived of the knowledge they need to make informed decisions. David Allen Green, writing in New Scientist, provides an excellent summary of cases in point.

It will be understandable if Singh decides to settle. I've seen an estimate that doing so now could cost him £100,000 – and continuing will be vastly more expensive. Lawsuits are, I'm told, like having cancer: miserable, roller-coaster affairs that consume your waking life and that of everyone around you. I have no idea what decision he will or should make. But he has my sympathy and my support.