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Saturday, 9 May 2009

What Should Simon Singh Do Next?



From a legal perspective Simon Singh is now in a difficult position.

But there are options.

He could, for example, adopt a Quixotic and defiant approach, to keep going, so not to admit defeat and to not let the CAM practitioners "win".

However, on the assumption that the best way to combat the irrational and illogical promoters of complementary and alternative medicine is perhaps not to be irrational and illogical oneself, the options available should be looked at carefully.

Option One: To Proceed To Trial

As I set out yesterday, this is to invite almost certain defeat. Indeed, it may be that Singh's lawyers will be prevented from putting the case which Eady now requires them to do. And the loss will cost Singh over £100,000; perhaps several times more.

The BCA's "victory" would of course appear to be a sham. And the English legal system would be (further) discredited.

From a rational perspective, this must be the least attractive approach.

Option Two: To Appeal

Singh can appeal to the English Court of Appeal to overturn the ruling on meaning. This is unlikely, as such rulings are usually held to be the province of the trial judge.

That said, Eady's ruling was astonishing, especially in its failure to refer to the following paragraph of the original article, where it is actually and plainly set out what was meant by "bogus". The Court of Appeal may also take an "Article 10" point on freedom of expression.

If the Court of Appeal turns Singh down, then (unless the new Supreme Court (ex House of Lords) accepts jurisdiction) he can then apply to the European Court of Human Rights in respect of the breach of his Article 10 right of free expression. The argument here would be that Eady's ruling was such a disproportionate exercise of judicial power that it endangered free expression. Such an application could take three years to be heard, and of course the European Court may still decide against Singh.

The appeal option therefore hardly has any guarantee of success, and further defeats may entrench and embolden the BCA's apparent victory. It the appeals are unsuccessful, either the trial must go ahead or Singh must settle.

On the other hand, Singh surely deserves an opportunity to put his defence on the terms on which he wrote the original article, and appeal is the only way of making this possible. As it stands, Eady's ruling prevents him from explaining to the court why he wrote the article in the first place.

Also note that Singh's application to strike out the claim as the BCA does not have an appropriate reputation capable of being defamed (as it is a non-trading company) is still to be heard, even by Eady (the "corporate point"). This application was adjourned on Thursday, pending any decision to appeal. So even if Singh loses an appeal on the the ruling on meaning, this corporate point still has to be determined (and potentially appealed as well).

Option Three: To Settle

Simon Singh had/has on his side:

-the weight of scientific research and evidence;
-the support of the international scientific community;
-that he defined what he meant by "bogus";
-the financial resources needed to litigate at this level;
-a strong legal team; and
-full defences on fair comment and justification.

And he still was placed in a difficult legal position by Eady's ruling.

One could reasonably conclude that the legal process is an inefficient method for dealing with such truth claims, and nothing good will come from litigating this matter any further. A line can and should be drawn.

Bringing this case to an end would enable wider and forceful (if differently worded) scrutiny to commence of the BCA and all its misconceived promotions. They are effectively evading any of this by continuing this litigation.

Given the extraordinary meaning ruled by Eady, which Singh did not intend and was not proposing to defend, there would be no disgrace for him to settle and to even apologise for that extraordinary meaning.

Would this be a "victory" or "vindication" for CAM? Only in the make-believe world of English libel law...

Which option?

No scientist or skeptic would normally continue with a flawed methodology. English libel law is such a methodology. Whatever happens in this case, nothing will be proved to a scientifically-acceptable level by the manoeuvres and rulings in the courtroom.

That said, whilst legitimate and arguable appeals are available, it may be that Singh has not yet reached that point where he has to drop his attempt to defend what he said.

Please tell me and the other readers of this blog what you think to be the rational response to this difficult situation.

75 comments:

Anonymous said...

Option Four... The Streisand effect. aka "I'm Spartacus"

Anonymous said...

Appeal, and also move to a more media based campaign to put pressure on the courts. (Perhaps joanna lumley is available?) Even if he loses, this will highlight the 'bogus' practises to the greater publis and win the scientific/moral argument.

Jan-Jaap van Peperstraten said...

I would say appeal - I think he would have a half-decent chance before the EHRM because the ruling is *so* obviously flawed.
Of course it will take ages - on the up side it will also buy time.

david said...

The judges decision on meaning is astonishingly thick headed, and I'm at a loss to follow his reasoning. By failing to take the next paragraph into account the judge appears to be asking Simon to defend a quote-mine.

In the long term it seems like we need to reform libel law in England and Wales, but in the short term I suppose Simon's best option is just to settle. That's the most rational response, for all that I want to see the BCA ground into the dirt for bringing such a ludicrous, unjustified, anti-scientific and petty case in the first place.

Anonymous said...

It seems that you lean towards option three and that surely is the best move, given the "unusual" ruling by the trial judge. Simon will have many further opportunities to challenge the legitimacy of "irrational" pseudo-science, and will be well supported in doing so. Battle lost perhaps, but on with the war...

Trevor said...

Option 1: Sounds like madness.

Option 2: How much would it cost and what are the chances of success for each stage of the process? How/when would the "corporate point" be settled? It sounds interesting.

Option 3: Any chance a legal victory for BCA could be turned into a "Pyrrhic defeat" for Simon Singh? How much positive publicity could be generated? Is there any way of turning that into hard cash?

Make sure there's an easy way for strangers to contribute towards Simon's legal costs. I suspect the skeptical community would want to split the bill.

Anonymous said...

appeal,easy for me to say,as I`m sure this is a very stressful business.I would be willing to donate to a fund(a la Mc Libel) only Simon knows what this is costing him..good luck(well you know what I mean...)

Olle Kjellin, Sweden said...

Can't he accept the meaning of 'bogus treatment' as a statement of fact, and require that the BCA proves that this is not a true fact? If they can't, it is not libel, and they lose the case?

ranterjmc said...

I'd be in favour of appealing as even if lost that still leaves the door open for an appeal to the ECHR which you can't do unless you've exhausted the remedies available at home.

The need for some rationality in libel laws in this country is overwhelming as shown by the case of Rachel Ehrenfeld who was sued in this country over a book not even published in this country talking about a person who wasn't a resident of the country and which covered a matter of extreme public interest - the funding of terrorism. (I think Eady was involved in that too).

The US has passed legislation to defeat such things being tried on one of their citizens in future.

Meanwhile it seems quacks can endanger people with bogus cures, people can fund terrorists and the likes of Robert Maxwell can raid pension funds safe in the knowledge that the government is too busy contemplating its collective navel to do anything and that Eady will spring to their aid if anyone else criticises them.

BSM said...

"Can't he accept the meaning of 'bogus treatment' as a statement of fact, and require that the BCA proves that this is not a true fact?"

No, I think that the point is that if a statement is potentially defamatory then in English law it is the person making that statement who has to prove it is not defamatory. The burden of proof is reversed compared with what one would usually expect.

However, at the moment, the judge has yet to rule, as Jack has pointed out, whether the BCA is capable of being defamed. But I wouldn't want to bet the price of a house on that ruling going in Simon's favour.

Le Canard Noir said...

It is difficult to make a rational choice from the outside here as we do not have access to information such as expected costs of each stage and possible outcomes.

it is very emotionally compelling to keep fighting as this is such an obvious injustice. Those in the CAM community who gloat at the decision have lost any sort of moral perspective on what is going on here. To resort to one of the most unjust laws in the English legal system, and to depend on (dare I say) bogus (in the Bill and Ted sense) rulings to defend your case just highlights what lowlife they are.

It may be best to try to move on quickly from this and use any generated sympathy from such injustice to keep going on where it matters - exposing the hypocrisy, daftness and dangers of crank medicine.

David T said...

Eady is an absolute menace. He has form for this.

I think that you should try your very best to raise money and keep fighting.

You might not raise 100,000, but you might find that some really good lawyers donate their time, if the publicity is good enough.

You might, for example, persuade a really good city law firm to do this pro bono.

I am very happy to help, and will certainly raise money through Harry's Place.

I don't read this blog all the time, but please email me on davidt.harryblog@gmail.com if I can help.

BSM said...

"Please tell me and the other readers of this blog what you think to be the rational response to this difficult situation."

I think I'd settle if I couldn't sustain the costs and fight on if I could. It all depends on how much money Simon Singh has access to.

If the case has to be settled then the claims of the BCA both current and historical should be placed under strong scrutiny, as you say, but the problem then becomes one of finding an adequate medium in which such scrutiny can be shown. Copious comment in the blogosphere would be great but I think it is easy for those of us who engage with these discussions to over-estimate its influence on the wider world- bloggers remain big fish in small ponds. The contributors to sceptical blogs would barely populate a small village while there are 60 million people in the UK. What proportion of that population is meaningfully reached?

We have already seen that the regulatory authorities don't give a stuff and have extensively co-opted woo into the mainstream and it is hard to engage the interest of one's local MP- tried it, he couldn't begin to grasp why the quality of evidence in medicine was such an important issue.

I have the satisfaction of knowing I am right in my assessments of fringe-medical claims, but that doesn't alter public policy.

Steve said...

Appeal surely as if the ruling stands Simon will be libelled for something he didn't actually say, which must be perverse.

HolfordWatch said...

Dear BCA,

Please accept this kitten and puppy. I think we all agree that there is nothing cuter and more likely to chase frowns and soften hurt feelings.

Mr Justice Eady has put forward a novel interpretation of my words that seems to have startled all of us who are interested in this matter. I am even now sponsoring both infant and primary schools to create water-coloured rebuses that express my apology for all of the meanings that I did not intend.

We shall gather all of these rebuses together and bind them in a cover, with some really nice calligraphy. We shall then deliver them to you and sing Sorry seems to be the hardest word in a medley with Whatever Justice Eady thinks I said, I didn't mean it.

After that, we should drink tea made of rue and eat rainbow cake: that should result in trust, smiles and friendship.

--------

Option 3, as above.

The Heresiarch said...

Having slept on this, I'm beginning to think that Eady's perverse understanding of the English language does actually offer Simon a way out.

The purport of the decision, as I grasp it (and I wasn't there, so perhaps I've got it all wrong) is to remove the question of evidence from the libel action. If Eady had decided differently, Simon would have had to prove that chiropractic is bogus - quite a tall order, given the burden of proof and Eady's own form. But he no longer has to prove this. Thus he can settling without needing to resile from his stern criticism of chiropractic.

A retraction along these lines ought to satisfy the judge:

1) My intention in the article was not to impugn the honesty or integrity of the BCA, but merely to raise questions as to the scientific validity of chiropractic.

2) The judge has concluded that the words used suggested that the BCA was knowingly dishonest. Since this was never my intention, I am of course happy to withdraw those remarks in the sense in which they have been interpreted by the judge.

3) I reiterate, however, my belief that notwithstanding the bona fides of the BCA, chiropractic is scientifically worthless.

Would that do?

Anonymous said...

If Simon has access to the funding, expertise, and time, I think he should appeal. If any of the above are lacking, he should settle.

None of the above should prevent the claims of anyone professing to able to treat conditions with an effect better than placebo from being closely examined and shown to be lacking (where they are indeed lacking).

Tony Lloyd said...

From a personal perspective I think Simon Singh may be best off settling. He could even, as Trevor pointed out 'phone Max Clifford and sell the story (and more books). The BCA can lose by the rest of us following Anonymous's suggestion and repeating the criticism of the BCA everywhere and at every opportunity. It would seem that we just have to drop the word "bogus" and we are untouchable. (I would like to point out, however, that I am Spartacus).

This option, however, may have dreadful consequences. Anyone who wishes to put forward a criticism of any (well funded) body's actions will not just have to consider whether the criticism is deserved but whether they will be held to have made an entirely different criticism from the one intended. Our words will no longer be our own, our meanings neither dependent on our intentions nor our intended audiences understanding.

The key issue is that it will have dreadful consequences for people other than Simon Singh. Universities, academic publications, Newspapers, charity and political campaigns, political parties themselves. You and I. These groups have more interest in carrying on the case than Simon Singh. So these groups should fund the appeal: a grouping of all national newspapers, major universities and a few key health campaigns would collectively have the funds to eclipse any costs of the action. The Times, Independent, Guardian, Mirror, Sun, Mail, Express; Oxford, Cambridge, Warwick, Bristol, London, Liverpool Universities etc should all chip in 100K now to protect their future positions.

Anonymous said...

It's a very tough situation Simon obviously finds himself in. He obviously went into proceedings with the weight of the scientific evidence behind him. However the ruling on Thursday means he has to rethink his entire strategy.

Whilst all reading this will no doubt want Simon to fight on so that science wins the potential costs in what appears to be a doomed fight means that this is a very personal decision for him.

Sometimes it's better to be able to fight another day.

Clare Dudman said...

Trevor's comment summarises my views. It would be great if we all could help because Simon Singh seems to me to be fighting for all of us.

Abi said...

Appeal - if he can possibly afford it, and try to drum up support (it was barely reported at all in the papers yesterday)

Crispian Jago said...

As supports of Simon Singh I’m sure we would all love to see a successful appeal, but we are not the ones going through the financial and emotional stress of such a process. As outlined in Jack Of Kent’s post, the option of settling, well not being want we would ideally like, could however be the most rational. I believe few in the scientific or sceptical community would see a settlement as a vindication of the BCA’s lawsuit, rather a failing in English libel law or the individual Judge concerned. Presumably settling does not mean that the book is withdrawn from sale, so the relevant information remains out there for all to read and freeing Simon’s time for further promotion of genuine science and perhaps more exposure of the dangers of pseudo-medicine.

The decision is ultimately Simon’s, and I’ll continue to support him which ever decision he makes, and I’m sure I’m not alone.

Anonymous said...

1) With nearly 3,000 members on Simon's Facebook page a fighting fund would be a good start. I'm willing to chuck in some cash to cover the costs of stoopid court decisions. We've got three weeks.
The Atheist Bus campaign managed to get over 100k in a short space of time. I can't see why we can't do that here.
2) Is it worth contacting my MP on this issue? As the bigger picture of English libel laws is getting pretty tedious.
3) Ask one of the law editors of a national news-roll very nicely if Jack-o-Kent and some other lawyers could put forward a piece on "The Bigger Issue" of this case, just so the general public get the gist.

Co2emissions said...

Clearly he has to appeal - the Judge has acted incompetently and failed to pay sufficient attention to the arguments. Bogus has a very clear meaning (see below) and cannot be held to imply conscious dishonesty in this context since it is the treatments that are described as bogus (which was amply demonstrated by research), and not the promotion of those treatments by a group who honestly believes them to be valid.

Unless, of course, you get a Judge who is himself, either stupid or dishonest.

adj. Counterfeit or fake; not genuine: bogus money; bogus tasks.
[From obsolete bogus, a device for making counterfeit money.]
http://www.thefreedictionary.com/bogus

SVETLANA PERTSOVICH said...

What a dirt.. What a cowardice...
All of you are bitches. Dirty bitches! I scorn all of you.

THe FIRST way must be chosen! The first, but not the last!
To fight up to the end! No Don Quixote! We would win!!

But all of you are cowards and selfish pigs, which look after only your own skin! Nobody even discuss the first way!

I HATE YOU!!!!

simon said...

I think you could drum up considerable financial ad other support for Simon's case. There will be those who support him for taking a stand against quackery as well as people who worry about the iniquity of the law of libel and its effect on free speech. There is no doubt that Simon could raise considerable sums of money and draw on the support of some influential people.

Obviously it is a considerable undertaking to fight a legal case of this sort but it seems to me that this one is simply too important to drop at this stage, thereby handing an unwarranted victory to chiropractors and their ilk.

Launch a campaign for funds and support on the web and contact supportive journalists, politicians, scientists and so on for their support. I think a very substantial campaign will rapidly develop. Needless to say, I will pledge financial support and help in any other way I can.

Martin said...

I think the rational choice here varies depending on your perspective, which is in itself a damning indictment of the law.

Option 1) is rational if you have vast pots of cash, the best lawyers. In short, if you are rich.

Option 2) would be rational for the public - the judge's decision is in my opinion a threat to the public good because it puts a chill on bloggers and writers.

Option 3) would be rational for Simon Singh in his current predicament.

I think the above demonstrates why libel law is a farce. The law should always make the rational choice the pursuit of truth and justice, and this just isn't the case.

Suzanne said...

The Law is an ass and option 3 is the only rational choice even though it feels a bit like defeat.

Simon never meant that the BCA were consciously dishonest and he can't defend that position. Am I right in thinking that if he chooses to appeal he would be unable to write about the case, possibly for years to come? This would surely be counterproductive to his aims.

A well-managed public apology, explaining how his words had been incorrectly interpreted, would leave him without any loss of face or reputation and immediately able to continue the good fight.

Yamato said...

It is difficult for me to choose an option, as I'm a Spanish lawyer and my opinion can be biassed by my experiences on a different legal and judicial system, but I think that Simon has to appeal. Although Jack informs us that the Court of Appeal usually confirms the rulings of the trial judges (as in Spain), there is still the possibility of a revocation, and as Eady's rulling is so astonishing it seems to me that in this case that possibility is higher than usual.

But in any case the "Streisand effect" or media campaigns are always possible, and maybe this ruling could attract more attention to this case, as the public will perceive Simon as a victim of an unjust ruling.

We have a similar case here a couple of years ago. A well known mistery monger, Juan José Benítez, produced a "documentary" TV series full of claims about such garbage as the Ica Stones, aliens teaching Egiptians how to build the Pyramids, etc., and the journalist Luis Alfonso Gámez wrote about a dozen articles pointing those false claims and even some clear frauds. For instance, Benítez presented a film of supposed alien ruins found in the Moon as NASA secret footage, but Gámez revealed even the name of the Special Effects firm that made the film by Benítez's order.

Benítez sued Gámez and won the case because Gámez used expresions like "swindler", "liar", etc., but the ruling attracted a wide media atention and the papers commented the case with a "if-someone-is-lying-you-can-not-call-him-liar" approach that in the end it was Benítez who took the worst part, and the second series of his TV "documentary" was cancelled.

I know that there are many differences between Gámez's and Simon's cases, but this adverse first ruling is so outrageous that could be a good base for a media campaing. I think this could be better done if Simon appeals -and of course I think that as the ruling is obviosly unjust Simon must appeal if can afford the costs-, but it is factible even if Simon chooses to settle -and maybe Heresiarch's proposal could be a good retraction, if viable.

In any case, of course, Simon has my full support and, I'm sure, that of the Spanish skeptics.

Harald Korneliussen said...

Have you heard of ICORN? It is the international cities of refuge network. This network brings together cities (or organisations operating in cities) that desire to work for greater freedom of expression. They join to provide shelter to persecuted authors for a period of at least 1 year up to a maximum of 2 years.

It's sad that it should be necessary in Britain, but it would be one way of sending a message. I'm sure many ICORN cities would be delighted to have Singh.

Another option is the European Court of Human Rights.

Tracy King said...

As presented in this blog, I find the 'appeal' option the most...er...appealing. However, I am not a lawyer.

AndyN said...

I find it incredible that Eady has let his personal (and erroneous) understanding of the word "bogus" to form the basis of this judgment. You'd have thought he would have taken the time to research the definition to make sure the ruling was with foundation. Obviously not.

Simon, whatever choice you make you can be sure that you have the communities unwavering support.

Jack, I'm interested to hear what your response to "The Heresiarch"s comment is. If a settlement is decided upon, I thought it was a very canny way to keep the original criticism of the BCA.

PrimeNumbers said...

First, see how much money can be raised to continue the fight.

Second, if there's signs of enough money, do the appeal, else the "The Heresiarch" apology.

Third, I think this would make a rather good book, that I would certainly buy.

Key thing is to go for victory in defeat!

Craig Pennington said...

If it's possible, I like The Heresiarch's settlement whereby Simon stands by the plain meaning of his original, but in different words and apologizes for the judge's ridiculous interpretation.

The morally indignant part of me wishes for the appeal.

Is a settlement possible where Simon does not accept that he intended the meaning that the judge assigned to his statement? Doesn't the BCA have to accept the proposed settlement?

Tony Lloyd said...

A quick question, Jack. Could Simon Singh settle on the "bogus" issue and solely on the "bogus" issue?

"I used the term "bogus" which I now appreciate was unjustified. I apologise to the BCA for the the suggestion that they were deliberately and directedly dishonest rather than simply pointing out that they are a dangerous bunch of woo merchants. Their attempts to make money for their members by promoting cures for which there is no reliable reason to think them effective was not due to dishonesty. Their unwillingness to seak serious scientific scrutiny of their claims was not the dishonest act of frauds but the entirely honest result of them being a bunch of total dickheads."

Anonymous said...

Appeal, If a system is set up for donations I'm more than willing to contribute.

Oliver said...

Settling/withdrawing purely on the "bogus" point, in something like the manner that Heseriarch suggested, while affirming the lack of evidence for efficacy, would seem a fair way forward -- but wouldn't it leave Simon £20K+ in the hole?
Which would leave the appeal. Minor brushes with libel law have let me well aware of how sapping it is, and I am loathe to suggest that anyone continue on such a course. But I would certainly chuck in some cash for an appeal.

Anonymous said...

Total war? Spend, spend, spend! Of course, the most expensive option isn’t necessarily the best. But I hope that every option can remain on the table, and that a lack of funds needn’t been an issue.

Simon is not alone: he represents a large community of rationalists who are watching his case with great interest. The attack on Simon is an attack on all of us. And we are, collectively, rich as Croesus. We can probably raise all the money Simon needs by passing the hat at TAM alone!

Catherina said...

If Simon settled, would everyone then be 'free' to write about the whole affair? Could newspapers report? Could we blog and do the Streisand? I imagine that this overall, would be much cheaper and ultimately more satisfactory than going through months and months of personal strain and potentially losing a lot of money. Since the facts are quite clear, I am sure that this story and the outrage over the handling of the case would spread quite quickly.

And yes, contacting one's MP about the libel laws should be helpful. I will.

Karen said...

I think it depends on what would have more of a self-censoring 'cooling effect' on critisism of BCA. At first glace settleing would appear to do so, but your piece suggests that the limbo situation of waiting 3 yrs for it to come up in the Euro court would do so all the more.

SWE said...

I'm leaning toward the Heresiarch Apology. Let the clowns cease to take up time better used in other pursuits.

Of course, being American, I think Simon should sue Eady for libel.

Jen D said...

Appeal, if financially viable. If not financially viable then campaign until such funds can be acquired that allow the appeal. Get public support, or at least support from the scientific community.

Milan said...

I would make a modest financial contribution to aid with an appeal.

The interpretation of the judge strikes me as absurd, and Singh deserves the right to justify his allegations against chiropractic in court.

Anonymous said...

Chiming in with all those who have asked that a legal expense fund be set up for Simon Singh. He would get lots of donations from the readers of Pharyngula and Respectful Insolence, two popular American science blogs (I myself found out about this from the piece done at Respectful Insolence). This way, he could launch an appeal -- and, as other commenters have suggested, perhaps get the UK media establishment (which most definitely has a dog in this fight) to help as well.

Skepticat said...

You've made a good case for Option 3, that's what I'd go for.

DMcILROY said...

I'm with Tony Lloyd. There is a wider issue of both public health - people need to be protected from fraudulent quacks - and freedom of speech. Newspapers and institutions involved in the search for effective treatments for disease have an interest in appealing this judgment. If it remains uncontested, it will clearly inhibit debate about what medical treatments are effective, and which are not.

So my view is that if Singh can get some organized support, he should appeal, but if he's on his own, he should settle.

DMcILROY said...

Incidentally, here is an example of a chiropractor trying to treat nut allergy:

http://www.independent.ie/national-news/courts/man-died-an-hour-after-being-treated-for-peanut-allergy-1719832.html

(Link from David Colquhoun's site)

How much more bogus can you get?

pvandck said...

Like most rational people I find the Judge's ruling to be, shall we say, incomprehensible. It seems to represent a partial and perverted view of language.
Where evidence for claims of efficacy is non-existent or, more to the point, neutral or negative, then those claims are bogus by definition. The use of the word has no bearing necessarily on the knowledge of the claimant.
For example, Astrology is bogus. And saying so, and describing astrological claims as such, doesn't necessarily question the belief of the astrologer in what they are doing.
So, difficult as it may be, I think the most appropriate course is to appeal the ruling.

Xezlec said...

It is absolutely ridiculous to even think of settling. I, for one, would not forgive him. I know he didn't mean to be put in this position, and it isn't his fault, and now things are getting tough; the only morally correct option is a difficult one. However, at this point, he has a duty to the public and must do that duty, whatever its cost. Obviously, he can get funding from a lot of people (I fully expect JREF will be all over this, just for starters).

Look, I can't believe some folks are actually trying to say a settlement wouldn't be a defeat. Sure, not to skeptics, but skeptics are not the point here! The whole reason the loonies brought this case forward (and the whole reason the judge lied to protect it) was so that they could put a note in their pamphlets stating that the "English court has found Chiropractic to be an unassailably factual and efficacious science" or some other ludicrous overstatement. That's how these people operate. And it WORKS. This will win them huge numbers on converts and huge sums of money. Future pronouncements by skeptics will be laughed off by the public, and the matter will simply be closed.

Blue Bubble said...

@Xezlec:

Hear, hear. My thoughts exactly.

Count me in to contribute too.

Andy said...

Maybe Singh needs to find a few people who've ever referred to him as a pharma-shill (and I assume they'd be plentiful) - and sue their backsides off?

jdc325 said...

I was torn between the "appeal" and "settle" options. While I think it is unfair that Simon is in a position where settling may be his best option, it looks as if that is indeed the case. I (reluctantly) vote for option three.

Re writing to MPs about the libel laws: I've already written to mine and would encourage others to do the same. The Culture, Media and Sport Select Committee is currently conducting an inquiry into this issue. If your MP sits on that committee then it might be especially helpful if you were to contact them? (It strikes me that the US system is a better model than ours. Perhaps we should suggest that to our MPs?)

My email; Contact Your MP via "They Work For You".

Warhelmet said...

If Simon Singh does want to settle, what would be the normal form of such a settlement? What if Singh propses a settlement but the BCA will not accept the terms? What happens then?

I tend to use the Bill & Ted definition of "bogus", which is the opposite of "awesome", dude. Or even d00d. I pwn ur base.

John Dixon said...

I'm with the "Appeal" crowd. While this might be Simon Singh's case, I feel very much that it's my fight, or at least a fight on my behalf. Put me down for a donation.

Anonymous said...

The state can intervene when a parent refuses medical treatment on the grounds of religious belief. In those instances, the state is making a judgement on the validity - or bogus-ness - of that religion's claims, without having to prove (or disprove) anything. It is a clear matter of 'child protection'.

If one can state that Jehovah's Witnesses promote a bogus treatment- and because the state intervenes in the case of children under 16, that means the state considers 'prayer' to be a bogus treatment despite the fact that leaders and followers of that religion claim and truly, genuinely believe otherwise - then I am interested to find out why Eady thinks this is any different.

SURELY, it comes down to evidence and the protection of children NOT semantics.

Kevin said...

go for Option Two: To Appeal to the Court of Appeal if fail House of Lords then the European Court of Human Rights

Ben Murphy said...

If Simon appeals, I'd be willing to supply modest financial support (very modest in my case), but I think Heresiarch has the best suggestion.

Simon Singh is defending rationality: there is no shame in his adopting a rational strategy.

A Macrae said...

Perhaps we might club together and buy Mr.Eady a non - bogus dictionary? Or some non-bogus reading glasses?

I think it's time to pull out of this one. We are not debating SCAMmmers here, or even debating the many sincere chiropractors (misguided or not is irrelevant in the absence of a real debate). We are merely headbutting the deaf, blind mammoth of English libel law- a beast whose very extinction may be advanced a step by this bit of silliness.

Mark said...

Is it possible to ask a judge for further clarification on his ruling? i.e to get him to explain his logic. That might give better grounds for defence.

Since the term bogus in the article is applied to treatments, which of themselves cannot be wilful in anyway, it seems to me that the judge's ruling could follow the logic that Singh is accusing them of promoting bogus (meaning ineffective) treatments, i.e. he is accusing them of promoting treatments that they know to be bogus (or ineffective)... and in doing so he is accusing them of being intentionally dishonest. Where as, had he said something like "This organisation is the respectable face of the chiropractic profession and yet it happily promotes treatments for which there is no supporting evidence", then he isn't defaming them for knowingly being dishonest crap just for being misguided.

Following that logic I can see what the judge was trying to say. So the onus would be on Singh to show that i) the BCA are promoting the treatment in the full knowledge of its effectiveness, ii) and that the full knowledge of its effectiveness at best is no knowledge.

i'll stop there before i really start woffling. ok just a bit more...

the point I'm trying to make is that while I think the judgement is harsh, and a blow for science/medicine/sensible reporting etc rather than decrying the judge as an idiot it would be sensible to try to understand what his thought process was - that would reveal more about the grounds for appeal or continues battle.

I guess that is the thought process behind what "The Heresiarch" said. Settling that way would at least be honest, but would still be heralded as victory and "proof" of effectiveness by the BCA. I'd prefer to see other options to be fully explored first.

Anonymous said...

file an appeal to build leverage for a stale-mate settlement.

The Heresiarch said...

Thank you to all those who liked my suggested "apology".

I appreciate that the real problem here is that any retraction would be treated by the BCA as a vindication, regardless of the circumstances. "Author Simon Singh was forced to apologise and pay legal costs after a high court judge decided that chiropractic treatments could not be described as 'bogus'". That and the chilling effect on other writers, and the loss of the word "bogus"; these are serious developments, and much to be regretted.

But I'm not going to join in the chorus of boos for EadyJ, because (as hinted above, but increasingly) I'm coming to the opinion that what he did was, if not right, then rather more subtle than most of the comment implies. What he seems to have prevented is a trial based upon the efficacy of chiropractic treatments or the validity of chiropractic claims: a trial in which the burden of proof would be on Simon, and in which the dice would be stacked against him.

I appreciate that Simon wanted to make that case, but a court of law is not an appropriate forum to adjudicate scientific questions and, if lost, the case would have provided a far more chilling precedent, and far greater succour to quacks, than a loss based on this very narrow meaning of the word "bogus". Besides (check this) is it not the particular combination of the word "bogus" with the adverb "happily" that provoked the ruling, rather than "bogus" on our own? The ruling, given the clear meaning of the next paragraph, was surely wrong. But even if wrong might it not be, in these circumstances, politic?

Craig Pennington said...

The Heresiarch, your point is taken that the court is not the place to adjudicate scientific questions. But it was not Simon who brought it to court.

And, quite frankly, the BCA's promotion of the use of chiropractic in the treatment of "children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying" in spite of an absence of demonstrations of the efficacy of such treatments in the appropriate fora for the adjudication of scientific questions was quite the point of the original piece. Do you really think that anything is won by not allowing Simon to defend the statement he actually made? Will the BCA not sue someone else for a different wording of exactly that claim?

And there's no excuse for the ruling that the passage, appearing in a comment piece on a comment page, wasn't comment.

PalMD said...

Settling shows one spectacular fact: the altmed movement is so morally and factually bankrupt that the only way it can defend the indefensible is through libel laws rather than science.

Also, Simon is welcome over here in the states any time.

cybermystic said...

Much as it pains me to say it - it is always very unwise to engage in a battle that is so heavily loaded against you that you know you cannot win. Leave it to another cause, another time, another day.

Anonymous said...

If this were to go to trial, what kind of argument would Singh have to construct? Does he have to show that some BCA individual was consciously dishonest, or could he argue that it was dishonest as an organization? I imagine an argument like this:

(a) The BCA is a medical organization, so it has a duty to know the medical evidence
(b) the medical evidence that chiropractic is effective for the named conditions is such that no medical person could believe it
therefore
(c) the BCA could not have believed that chiropractic is effective for them
and
(d) it must have been dishonest

Would that kind of argument stand up in an English court?

freelunch said...

He has to appeal the ruling. I'm not familiar with English Civil Procedure, but in the US a decision that has this much impact on the case would be immediately appealed. There's no way to try this case fairly with this decision.

When the appellate court overturns the decision, they need to assign the case to a new judge, too.

Anonymous said...

It's ok for all the rest of us to comment but Simon must make the decision. We are not suffering the associated stress and hassle. Eady's decision raises more questions about the English legal system than anything else.The decision that all rational people know is the correct one was never going to materialise when the lawyers can line there pockets by keeping the argument going. Wider publicity could embarress the legal system and highlight the weakness of the chiropracters' case but there will always be enough nutters and alternative extremists out there to keep the fight going. Let them wheeze with there kids!

Kurt Denke said...

I may be an ignorant fool when it comes to English law (I'm a retired American lawyer), but here's a question: Is appeal actually an option at this stage? In a US court, this sort of decision would be termed "interlocutory" and would ordinarily not be appealable without first going to trial on the remaining issues. While it's possible here to get leave to appeal an interlocutory decision, it's generally not done, and a request for such leave must first be granted by the trial court and then by the appellate court.

Perhaps English practice on this point is very different from ours--can anyone clarify that?

Kurt Denke

Simon Bradshaw said...

Kurt,

Interim decisions (we used to call them interlocutory decisions too, until Lord Woolf's purge of legal terminology ten years ago) can be appealed, but it requires the permission of either the trial judge or the Court of Appeal. As Jack of Kent has noted, it is not common for the Court of Appeal to interfere with a judge's decision in an interim matter, but by no means unheard of.

ranterjmc said...

I'm not a lawyer at all but my understanding of the argument in court was that it would have been a waste of time having a full trial based on the premise of what Eady put into Simon's mouth only to have just that overturned by the Appeal Court and have to redo the trial based on a new version of what he is supposed to have said.

Obviously the Appeal Court here is a lot more ready to hear interlocutory appeals than the US Appeal courts.

m.o.kane said...

I left a comment on the previous post concerning insurers and who is to pay. I assume that the publisher's insurer is not considered a "third party" under UK law. If there is no insurer to pick up the check, I think you are vastly underestimating Singh's financial exposure. I know of a much more insignificant case than this one involving Ols**** for the defendant. The case never even made it to a preliminary hearing and fees were in excess of 100,000 pounds.

In another case that didn't (but should have) proceeded, Graham Greene claimed that an individual was a CIA agent and that the CIA "could be" responsible for a person's death. This was reckless and put that person's life in danger. But unfortunately, he didn't have the hundreds of thousands of pounds required to defend.

Ginger Yellow said...

"Also note that Singh's application to strike out the claim as the BCA does not have an appropriate reputation capable of being defamed (as it is a non-trading company) is still to be heard, even by Eady (the "corporate point"). "

I'm not a lawyer, but as a journalist I follow libel law closely. I'd be amazed if Singh prevailed on this point. Everyone is assumed to have a reputation worthy of defaming unless proved otherwise and countless disreputable people have been able to pursue libel cases in England - Mo Fayed and David Irving, for instance.

daedalus2u said...

I think the Heresiarch's suggestion is quite good, and that the judge may force BCA to accept the settlement, in the interests of "justice".

If the BCA then mischaracterizes what the settlement says (which they will find themselves unable to resist because they cannot think coherently or they would not be chiropractors), then Simon Singh should himself sue them for libel.

In other words, if the BCA portrays the settlement as a vindication of the scientific merit of their therapies, that is clearly libel against Simon Singh.

If the BCA does not accept a settlement based on the judge's interpretation of what bogus means, and insist on litigating the scientific merit of chiropractic, they have greatly weakened their case and may well lose it.

Angus Walker said...

As Simon has now been set a virtually impossible task - demonstrating that the BCA promoted their treatment for these ailments knowing it to be ineffective - I would settle this case and persuade the Guardian to republish the article with the word 'bogus' substituted with something that doesn't imply knowledge (not that 'bogus' does, particularly), such as 'ineffective'.

Incidentally the press release on the BCA website seems to be wrong to me:

"Mr Justice Eady held:
1. that what Dr Singh had published was defamatory of the BCA in exactly the way the BCA had claimed; and
2. that Dr Singh’s allegations were not comment but were serious defamatory allegations of fact against the BCA."

The allegations were matters of fact, but AFAIK Mr Justice Eady did not rule on whether they were actually defamatory, just that they were capable of being so.

Anonymous said...

What has happened so far is a travesty. I think that Dr. Singh should open a legal defense fund.

In addition I think that action should be taken so that eventually the BCA regrets their move, the public should know the truth.
1. http://www.quackwatch.com/
2. http://www.chirobase.org/
3. http://www.chirowatch.com/

Is it allowed to protest in front of the BCA with signs that point the public to sources of good information on this topic?

Do I understand the Dr.Singh has to prove that the BCA lacks the intelligence to read and understand basic scientific articles?

Why am I not hearing about this on the evening news in the US, is it on British news sources? Will no one over there in the news raise the questions that will let the public know what is going on here. I think the BCA would be embarrassed by any sufficient coverage of this topic by an unbiased intelligent news source.

The truth is on the side of Dr. Singh. The law was never meant to be the source of truth, and sometimes is far from it. But the public deserves the truth and if it cannot be delivered in court then we need to push on with whatever methods we can.