Libel laws: a pain in the back(side)

Published in Tribune, 9 April 2010

Two years in court and £200,000 later, science writer Simon Singh has won the right to assert that an article he wrote in The Guardian’s comment section was indeed comment. After perhaps another two years, we might finally know whether we can repeat the handful of contentious sentences about chiropractic that landed him in this mess in the first place.

But unless there is an unexpected change of heart in government, it will take a lot longer than that to reverse the massive injustice perpetrated each time a scientific controversy gets decided in the libel courts.

On May 19 2008, Singh, co-author of Trick or Treatment: Alternative Medicine on Trial wrote an article in The Guardian to mark chiropractic awareness week. He argued that the practice – which involves manipulating the spine to treat a whole host of medical conditions – was “bogus”. He also – and this is why he is in trouble now – said uncharitable things about the British Chiropractic Association.

What things he said I’m not going to risk repeating: the BCA is suing for libel, and no less than the Lord Chief Justice has stated that it is “unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ”.

That’s not the kind of legal advice to ignore.

The association demanded a full retraction, which Singh refused to give, and turned down an opportunity for a right to reply in the paper. Instead, the BCA began legal action for libel against Singh personally – not against the newspaper.

Singh claims that he was making a “fair comment” about the BCA and chiropractic, a legal defence which basically asserts that the statement was a legitimate and justifiable opinion. The BCA argued that Singh’s article amounted to a statement of fact – and that he should therefore have to prove it.

Singh’s position as an individual facing the skewed English libel courts was difficult enough, but to make things worse, the preliminary hearing over whether Singh could present a defence of fair comment was presided over by Mr Justice Eady, widely seen in media circles as a “hanging judge” on such cases.

Eady ruled in the chiropractors’ favour – which meant that any defence in court would have to rely on proving that the BCA were actively dishonest: even if he were to prove they were reckless, ignorant, incompetent or stupid, that would not be enough to see off the case. Apart from being an impossible burden of proof, it would have meant Singh had to prove in court a much more serious allegation than he claims he made in the first place.

Last Thursday’s judgement from the Court of Appeal, a welcome piece of sanity on April Fools’ Day, overturned Eady’s arguments.

The relationship between facts and inferences in science, the court ruled, is a matter which is “legitimately contested”, and that therefore Singh’s defence that he was expressing a legitimate opinion about the BCA was permissible.

That something so obvious needed two years of legal wrangling to settle is rather worrying. One wonders how many more years it might take to come to the equally obvious conclusion that the facts themselves are also a matter of legitimate debate in science. (That’s what experiments are for.) But before we get there, Singh still needs to clear his name – incredibly, the past two years have not been spent deciding whether or not he libelled the BCA, they have been wasted determining what defence he can use when this case eventually gets heard.

Tempting as it is to attack Eady – and the Court of Appeal’s judgement makes for a devastating indictment of his judgement (both in the legal and colloquial senses of the word) – the real issue here is the state of libel law in this country, which is widely used to bully and to stifle, rather than to defend and to protect. Pointing out that the BCA chose to sue Singh directly, and not the newspaper which published his words, the judgement notes that “the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics”.

Regardless of the BCA’s motivations in the case (and not having £200,000 to spare, I don’t want to risk guessing what they might be), the outcome of using libel laws to determine what opinions are and are not permissible on matters of science and medicine is deeply worrying. It pushes science towards being less open when it needs to be more so.

What if the scientists who discovered that thalidomide caused birth defects had thought twice before releasing their theories in case they were sued by the manufacturers? What if Rachel Carson had held back from publishing Silent Spring in case the pesticide companies objected to what she said about DDT? What if the tobacco companies had silenced the authors of the British Doctors’ Study, which proved the link between smoking and cancer?

There is a widespread and mistaken view that science is definite and unimpeachable, and that only “bad” science is subject to controversy and dispute. Nothing could be further from the truth. Science is full of argument, sometimes surprisingly vicious and personal.

But the correct institution for ruling on those disputes is not the court of appeal. It is the court of peer-reviewed science. Like the legal system, it isn’t beyond getting things wrong sometimes – but unlike English libel law, it isn’t an absolute travesty.