Simon Singh, ‘bogus’ claims, and – finally – sense about libel

Simon Singh, via his websiteSimon Singh has become an unlikely poster boy for reform of the UK’s libel laws. On Thursday, in an important judgment on the defence of fair comment, the Court of Appeal made it considerably easier for him to defend a libel case being taken against him by the British Chiropractic Association (BCA). Singh is a science writer whose current concern is with the basis and efficacy of alternative treatments. He is the co-author (with Professor Edzard Ernst) of Trick or Treatment? Alternative Medicine on Trial (Bantam Press, 2008; Amazon). On 19 April 2008, in a piece headlined Beware the spinal trap in the Guardian‘s “Comment and Debate” page, 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.

The BCA sued Singh, alleging that this passage was libellous. Aoife McLysaght presented a compelling critique (via YouTube) to Ignite Dublin #3 about this case. To my mind, this is the first of the many worrying aspects of the case. I have already blogged here about the undesirability of allowing bodies such as the BCA to sue in defamation at all; perhaps this case will serve to hasten the reform of this undesirable aspect of libel law.

As to the case itself, section 7 of the UK’s Defamation Act, 1996, allows for a preliminary hearing on the issue of whether impugned words are capable of a defamatory meaning. section 14 of Ireland’s Defamation Act, 2009 (also here) is to the same effect. In an application by the BCA under section (see British Chiropractic Association v Singh [2009] EWHC 1101 QB, which is not available online so far as I can see) Eady J held that the impugned passage contained assertions of fact (“not a jot of evidence”; “bogus”) which would require to be proven true and not merely opinions which could amount to fair comment. This left Singh in an impossible position in seeking to defend the BCA’s libel claim. And things got worse, because Eady J refused Singh leave to appeal. However, the Court of Appeal granted leave, (see [2009] EWCA Civ 1154 (14 October 2009)) and last Thursday the Court (consisting of Lord Chief Justice Judge, Lord Neuberger MR, and Sedley LJ) allowed the appeal itself (see [2010] EWCA Civ 350 (01 April 2010); for some coverage see BBC | the Guardian at various stages over the last few days, especially: here, here and here | Irish Times | TimesOnline ). They held [with added links] that Eady J fell into error

… 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 judgment a statement of opinion, and one backed by reasons.

We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994) [more on Underwager and Slater]:

[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 an area of law concerned with sometimes conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression, it is somewhat alarming to read in the standard textbook on the Law of Libel and Slander (Gatley, 11th edition [Sweet & Maxwell, London, 2008]) in relation to the defence of fair comment, which is said to be a “bulwark of free speech”, that “…the law here is dogged by misleading terminology… ‘Comment’ or ‘honest comment’ or ‘honest opinion’ would be a better name, but the traditional terminology is so well established in England that it is adhered to here”.

We question why this should be so. The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions – New Zealand, Australia, and the Republic of Ireland – now describes the defence of fair comment as “honest opinion”. It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to “decay with … imprecision”. ‘Honest opinion’ better reflects the realities.

Amongst the widespread attention this decision has rightly attracted, even in the blawgosphere, there are particularly good posts by lawyers guns and money, mediapal@lse, metamagician and skepticlawyer. First, and from a purely parohcial perspective, it is good to see the reference to Ireland here. The provision is section 20 Defamation Act, 2009 (also here). It is better to see the refreshingly open approach to the defence of fair comment at common law.

Second, the BCA immediately issued a statement pdf that it is considering its position in the light of the ruling. The President of the BCA, Richard Brown, concluded:

We are of course disappointed to lose the appeal, but this is not the end of the road and we are considering whether to seek permission to appeal to the Supreme Court and subsequently proceed to trial. Our original argument remains that our reputation has been damaged. To reiterate, the BCA brought this claim only to uphold its good name and protect its reputation, honesty and integrity.

In other words, this stage of the litigation may not be over yet. Even if it is, the match between the BCA and Singh isn’t by any means over; at best, it is half-time. All that the Court of Appeal has decided is that Singh can rely on the defence of fair comment at trial, but the trial itself is yet to come. The BCA might therefore offer to settle. However, Singh might even be able to turn the tables now and apply to the High Court under section 8 of the 1996 Act for summary dismissal of the case on the grounds that, in the light of the decision of the Court Appeal as to the strength of the defence of fair comment, the BCA’s claim has no realistic prospect of success and there is no reason why it should be tried. In any event, there is some way to go yet, and it could run and run.

Third, Singh’s lawyer, Robert Dougans, Associate at Bryan Cave LLP, said (also here):

It is clear from the judgment that the Court of Appeal is not satisfied with the current state of English libel laws, and recognises the absurdities and injustices that can result from them as they currently stand.

Since this case began, Singh has become a visible and effective campaigner for libel reform in the UK. In Ireland, we have done quite a bit of work on this issue in the Defamation Act, 2009 -, but though this is a welcome reform, it represents only a portion of what needs to be done.

Fourth, it really does count as an astonishingly liberal judgment, not least because of a passage in the judgment which is catching many commentators‘ eyes [with some added links]:

… the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.

That is a pass to which we ought not to come again.

A quoteable quote, certainly; but it strongly re-affirms the vital importance of expression of opinion to public discourse, so we can forgive them the rhetocial flourish.

Nevertheless, important to sound a few notes of caution: was Eady J actually right that Singh’s comments were assertions of fact, so that the Court of Appeal had to engage in some quite serious muddying of the waters on the distinction between fact and opinion, to reach the right result for the wrong reasons? All may be well that ends well, but there are sufficient potential cracks in the Court of Appeal’s reasoning to give the BCA some hope of success on appeal. They would be well advised not to raise their hopes too much, however, as I suspect that a defeat in the Supreme Court would be even more emphatic – even if the decision itself were to be reached on slightly different grounds.

In the end, this is an excellent outcome for freedom of expression. It is not the last word on the UK’s march towards libel reform, but it is an excellent staging post along the way.