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Sunday, 31 May 2009

Nick Cohen On Libel - And On The BCA v Singh Case

One of Britian's top journalists, Nick Cohen of the Observer, has written a scathing article on the British Chiropractic Association v Simon Singh case.

Saturday, 30 May 2009

Jack's Weekly Round Up - 29 May 2009

I thought it may be useful to do a round up of stuff every week or so. We will see whether I keep this going...


The British Chiropractic Association v Simon Singh

The deadline for Simon Singh to file his application for appeal has been extended (I understand) until 8 June 2009. I don't believe there is anything exceptional in this, and such extensions are common in litigation.

I plan to do a substantive follow up to the BCA's extraordinary press release in the next week or so.


The Promotion of Chiropractic

Making complaints to the Advertising Standards Authority or to Trading Standards, or indeed to individual chiropractors, is not really my sort of thing. However, other bloggers and campaigners take a more robust view, and they are fully entitled to do so.

And it is interesting to watch what is happening.

Martin Robbins at the The Lay Scientist has been in correspondence with Russell Dean, Director of Windsor Remedy Centre.

I am not sure Mr Dean intended to write such an entertaining and telling response to Martin's initial email.

I was particularly interested in Mr Dean's implied suggestion that, because websites are outside the scope of the ASA, he had no reason to address Martin's concerns about statements contained on his site. But, as Martin points out, the position under the General Chiropractic Council's Code of Practice may not be as easily sidestepped as that.

To which I can add that the Unfair Commercial Practices Regulations, which are enforced by local Trading Standards or the Office of Fair Trading, will in any case apply in full to any commercial practice, whether it is on the internet or otherwise.

When Martin introduced himself before asking a question at the recent Simon Singh Support Rally he received a spontaneous peel of applause. He looked genuinely shocked, but it was richly deserved.

As well as Martin's exploits, do keep track of JDC325's similar engagement with Bassett Chiropractic Clinic

#####
Addition: now also see another blogger's exchange with Oxford Chiropractic Clinic.
#####

Simon Singh Support Rally


Extended video footage featuring Simon Singh, Dave Gorman, Nick Cohen, Prof Brian Cox, and Dr Evan Harris, at the Simon Singh Support Rally can now be found here.

There are also the messages of support from Prof Richard Wiseman, James Randi & Phil Plait of the JREF, and Dr Ben Goldacre, as well as a message of greeting from Dave Morris of the McLibel 2.

These videos were filmed by Nick Pullar and edited by Crispian Jago.


Beyond Singh and Chiropractic

Once upon a time this Blog dealt with other things, and this will happen again soon, as (I hope) a new self-standing website is in development to carry information on the case and to provide resources for the ongoing scrutiny of the British Chiropractic Association and chiropractors generally.

This new website would never have happened without this misconceived libel case and may be best seen as a lasting monument to the BCA's "Chiropractic Awareness Week".

Then, unless some silly CAM practitioner (or psychic or similar) decides to bring a libel case in response to what I view as legitimate criticism and scrutiny (and if so, expect fully in turn the anxious scrutiny of this Blog), I plan to move on to cover other abuses of law, especially intellectual property rights and police powers.


Recommended Blogs

I would like to recommend a couple of Blogs this week.

First, Dr Petra Boynton writes a favourite Blog of mine, and in my view is to media stories about sex and relationships what Ben Goldacre is to Bad Science.

Dr Boynton is also a longstanding supporter of Simon Singh and an eminent supporter on the ever growing Facebook Group.

Second, the incomparable Gimpy, who is rightly considered by mainstream journalists as a first rate investigative writer. If for some reason you have missed Gimpy's outstanding work so far, click and enjoy his stuff on Bad Science and the excesses of complementary and alternative medicine.

Friday, 29 May 2009

Simon Singh Support Rally Footage

Extended video footage featuring Simon Singh, Dave Gorman, Nick Cohen, Prof Brian Cox, and Dr Evan Harris, at the Simon Singh Support Rally can now be found here.

There are also the messages of support from Prof Richard Wiseman, James Randi & Phil Plait of the JREF, and Dr Ben Goldacre, as well as a message of greeting from Dave Morris of the McLibel 2.

These videos were filmed by Nick Pullar and edited by Crispian Jago.

For shorter video highlights, see here filmed by Michael Story.

Thursday, 28 May 2009

BCA v Singh: Deadline For Appeal Extended

I understand that the deadline for Simon Singh to file any appeal has been extended until 8 June 2009.

BCA v Singh: The Official Ruling

This is the OFFICIAL text of the ruling of the English High Court on the question of meaning at the preliminary hearing of British Chiropractic Association v Simon Singh on 7 May 2009.

The key paragraphs are 12 and 13. I have added emphasis.


1. In this libel action the claimant is the British Chiropractic Association ("BCA"). The defendant is Simon Singh, who wrote a piece in the Guardian on 19th April 2008 during Chiropractic Awareness Week, which was also published online. At the moment I have to decide two questions which have been agreed by the parties. One is to determine what defamatory meaning or meanings the words complained of bear; secondly, to determine in the light of that ruling whether the words complained of made and/or contained allegations of fact, or whether they constitute comment.

2. The BCA is a company limited by guarantee. It was apparently established in 1925. As Lord Scott pointed out in the House of Lords in Jameel & Anor v. Wall Street Journal Europe SPRL [2007] 1 A.C. 359, para.125, when the court is confronted with a corporate claimant in defamation proceedings it is necessary to focus on its objects.

3. The BCA's aims are to promote, encourage and maintain high standards of conduct, practice, education and training within the chiropractic profession in the United Kingdom. It is said to represent about half of the chiropractors registered under the Chiropractors Act 1994, which are between about 1300 and 1400 in number.

4. The words complained of were taken from the third paragraph of the article.

"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 organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

5. That is the only reference to the BCA in the article. The meanings pleaded on the claimant's behalf are to be found at para.6 of the particulars of claim to this effect: that (a) the BCA claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and (b) by making those claims knowingly promotes bogus treatments.

6. Are those straightforward words defamatory of the corporate claimant or not? If so does the reasonable reader construe them as asserting fact or merely as expressing an opinion? That is an important distinction long recognized in domestic law as well as in Strasbourg. All of us recognize the importance of the freedom to express trenchant and even offensive opinions on matters of public interest.

7. After some desultory correspondence, the claim form was issued on 10th July of last year together with the particulars of claim. The defence was served on 8th September. At that stage it was being admitted that the article was defamatory of the BCA in the meanings which were put forward by the defendant. There were substantive defences, both of fair comment and justification. There was a reply served on 3rd November.

8. The principles governing the approach of the court to determining meaning are well known and uncontroversial. See, for example, Skuse v Granada Television [1996] EMLR 278, 285-287 and Gillick v Brook Advisory Services [2001] EWCA Civ. 1263. See also Gatley on Libel and Slander 11th Ed. at para.32.2 et seq.

9. I turn, in the light of those principles, to my conclusions as to meaning. As part of this exercise it is necessary to focus on the matter of reference. It is suggested by the defendant that the words refer in truth only to the body of chiropractors as a whole; that in so far as criticism was being directed, the ordinary fair-minded reader would understand that it was being directed at a class rather than at any individual person, whether human or corporate.

10. This is closely related to a submission of Miss Page to which I have not yet been asked to address to the effect that the corporate entity is merely being “put up” when it has no legitimate complaint of its own, purely as a front for an impermissible class action.

11. As so often in libel cases, it is necessary to focus on what was actually published rather than on what might have been published. It is fundamental to have in mind that the article does not confine itself to a general attack on a class of unidentifiable individuals. The defendant could have written such an article if he had chosen, but he referred expressly to and only to the BCA. The claimant does not rely on necessary implication to suggest that people in the know would have been able to identify the BCA as responsible for the conduct being criticized. There it is on the face of the article.

12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

13. It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

14. I therefore would uphold the claimant's pleaded meanings. It will have become apparent by now that I also classify the defendant's remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading "comment and debate". It is a question of substance rather than labelling.

15. Those are the matters on which I have been invited to rule so far.

The BCA's Important Clarifactions

I have received an interesting email from the British Chiropractic Association in response to my queries about the Happy Families leaflet and whether the BCA still endorse chiropractic for the treatment of colic.

I set out this email response below with the kind permission of the BCA.

I am flattered that they have chosen my Blog as the means to place these important clarifications into the public domain rather than their own website or through their Brand Alchemists (er, PR company) Publicasity.

To recap, my queries were:

1. Does the British Chiropractic Association still endorse the "Happy Families" leaflet? If not, when did this endorsement cease and why?

2. Does the British Chiropractic Association still support chiropractic as a treatment for colic? If not, when did this support cease and why?


The BCA's formal response is:

"1. The BCA has removed this leaflet from circulation as it is the subject of legal action.

"2. The BCA does support chiropractic management for the treatment of colic in babies and young children where it has been demonstrated that it can help with the management of these conditions. This is in common with the management of such conditions by physiotherapists and osteopaths and medical practitioners using similar techniques."


My initial reactions to these clarifications are as follows.

1. The BCA has confirmed that the leaflet is withdrawn.

However, I am not sure that the "Happy Families" leaflet is actually the subject of any legal action. The subject presumably is instead the original Guardian article and the alleged libel therein.

Unless there is something of which I am unaware, I cannot see any legal reason for withdrawing the leaflet during these libel proceedings.

On that note, and again subject to anything of which I am unaware, I also can see no legal reason not to release the "plethora" of supporting medical evidence into the public domain. For example, I do not think (though I could be wrong) that there are currently live proceedings for the purposes of the Contempt of Court Act.

2. This appears to me to be a concession.

What the BCA response here appears to be saying is that chiropractic can be promoted for colic (and presumably all other ailments) subject to (in effect) it meeting the standards similar to those required by the Advertising Standards Authority (ASA).

But, as we saw recently, the ASA has prohibited a chiropractor from promoting chiropractic for colic because of breaches of the advertising code provisions on Substantiation, Truthfulness, and in respect of Health and Beauty Products and Therapies.

Even if I am wrong here (which I may be, and I should be grateful for further BCA clarification), a perhaps significant point should now be made.

The "Happy Families" leaflet simply did not state that the promotion of chiropractic for colic (or any of the other named children's ailments) is or should be subject to it being demonstrated that the treatment can help with the management of such a condition.

The BCA has brought libel proceedings because Simon Singh's article was, in their view, defamatory.

However, it appears to me that it is their original leaflet which was incomplete.

Had the "Happy Families" contained the careful wording now supplied in the first place, it may well be that Simon Singh would not have needed to criticise the claims made in the leaflet.

So where does this leave the libel case?

The High Court has held that Simon Singh said something he did not mean, and which almost nobody can actually see in the original article; and now the BCA has provided a clarification which in turn was not in the original leaflet and (in my view) really should have been.

But still the libel case moves.

The BCA do, however, deserve credit for now clarifying their stance on the promotion of chiropractic for colic (and I suggest, by implication, other ailments), and I am grateful for their prompt response to my queries.

Wednesday, 27 May 2009

The BCA's Extraordinary Press Release

The British Chiropractic Association has made a public statement.

However, it has not used this to clarify whether it still endorses the now seemingly withdrawn Happy Families pamphlet, the basis of the current libel litigation.

Nor has it confirmed whether it continues to promote chiropractic for colic, even though the Advertising Standards Authority has banned a chiropractor from making the same claim.

Instead it has published this extraordinary Press Release.

The overall tone is remarkable.

The lumbering BCA seemingly finds it incomprehensible that its tactics have not so far worked; that it has not so far forced Simon Singh to back down.

Tellingly, the BCA seems to think it is to Simon Singh's discredit (rather than its own) that he, unlike almost any other science writer, has the time and money to mount a defence to the horror of an English libel claim.

I would like to draw particular attention to the following passages of the Press Release:-

"Much criticism has been levelled at the BCA for not entering a debate, criticism which is in itself misguided.

"The law exists to protect citizens and organisations from falsehoods and the BCA used the law because of the damage caused by Simon Singh's Guardian article.

"The case brought against Dr Singh was simply a case to establish a libel contained in his article; it never was, and still is not a “freedom of speech” issue.

"Had Dr Singh simply apologised and retracted his remarks, as the BCA originally requested, any action would have been averted – he has chosen not to do so in the face of overwhelming evidence."


Also:-

"In the course of this litigation the BCA has disclosed to the Courts a plethora of medical evidence showing that the treatments work and that the risk associated with the treatments is minimal, if indeed any risk exists at all."

So all this is not, it seems, a free speech issue.

Well, it is.

(Indeed, to adapt Arthur C. Clarke's famous maxim, when a defendant to a libel claim states there is a free speech issue, he is almost certainly right. When the claimant states it is NOT a free speech issue, he is very probably wrong.)

But I would like to emphasise their "medical evidence" point.

Significantly, the BCA now says it actually has the medical evidence to support the promotion of chiropractic for the children's ailments in question, but so far this crucial evidence is only being disclosed to the court, rather than put into the public domain.

It simply should not have taken Simon Singh to defend libel proceedings for the BCA to be forced to disclose its supposed supporting evidence for the claims, and then only (so far) to the court. The BCA should have disclosed it publicly and immediately, in response to Simon Singh's original article.

In my opinion, that is what a responsible and reputable body should have done.



More on this development later.

Tuesday, 26 May 2009

My Email to the BCA

I have today emailed the British Chiropractic Association with the following queries.

1. Does the British Chiropractic Association still endorse the "Happy Families" leaflet? If not, when did this endorsement cease and why?

2. Does the British Chiropractic Association still support chiropractic as a treatment for colic? If not, when did this support cease and why?


I will let you know any response.


And finally...

Longstanding readers of this Blog may recall the (perhaps condescending) response to a previous query I had from Publicasity, the BCA's PR company:

"Thank you for your request. We are indeed the PR Consultancy for the BCA but as such our remit is limited to the mainstream media on matters relating to the promotion of Chiropractic. Thanks..."


You will recall that I delighted in the throwaway "Thanks...". You could just tell one was dealing with such a cool PR executive... :-)

Oh well, the internet and blogosphere clearly didn't matter to the British Chiropractic Association.

But I have news: possibly emboldened by their successful PR work with the British Chiropractic Association, Publicasity now describe themselves as not a PR company but as Brand Alchemists instead.

The requirements to be one of these Brand Alchemists?

"1. One who creates or amplifies valuable brands
2. Offers a bespoke comms mix to achieve your end goal
3. Transformative or turns brands into gold
4. ‘A top-notch agency with THE right chemistry’
5. ‘Guarantees results - if we don’t deliver, we work for free until we do’ "


And so...

"We have over 50 carefully hand picked brand alchemists who are always hungry to perform their magic".

You really couldn't make it up.

Sunday, 24 May 2009

David Colquhoun on Libel


Somethings deserve a post of their own.

I attempted a defintion of libel in the style of David Colquhoun in my last blogpost.

I really shouldn't have tried. Within minutes the Master himself responded with this brilliant improvement:

"Libel
A very expensive remedy, to be used only when you have no evidence. Appeals to alternative practitioners because truth is irrelevant."


Could there be a more perfect definition?

David Colquhoun's Glossary Of Complementary and Alternative Medicine

There's a fantastic article in this weekend's Financial Times Magazine, and it includes Professor David Colquhoun's wonderful glossary of magical medicine (ie, complementary and alternative medicine).

David Colquhoun has kindly given me permission to republish the glossary here, and indeed I understand he is happy for it to be circulated as widely as possible.

Homeopathy
Giving patients medicines that contain no medicine whatsoever.

Herbal Medicine
Giving patients an unknown dose of an ill-defined drug, of unknown effectiveness and unknown safety.

Acupuncture
A rather theatrical placebo, with no real therapeutic benefit in most, if not all, cases.

Chiropractic
An invention of a 19th-century salesman, based on nonsensical principles: shown to be no more effective than other manipulative therapies, but less safe.

Reflexology
Plain old foot massage, overlaid with utter nonsense about non-existent connections between your feet and your thyroid gland.

Nutritional Therapy
Self-styled “nutritionists” making untrue claims about diet in order to sell you unnecessary supplements.

Spiritual Healing
Tea and sympathy, accompanied by arm-waving.

Reiki
Ditto.

Angelic Reiki
The same but with added “angels, ascended masters and galactic healers”. Excellent for advanced fantasists.

Colonic Irrigation
A rectal obsession that fails to rid you of toxins which you didn’t have in the first place.

Anthroposophical Medicine
Invention of the mystic barmpot, Rudolf Steiner, for whom nothing whatsoever seems to strain credulity.

Alternative Diagnosis: Kinesiology, Iridology, Vega Test, etc:
Various forms of fraud, designed to sell you cures that don’t work, for problems you haven’t got.

Any Alternative “Therapist” Who Claims To Cure Aids Or Malaria
An agent of culpable homicide.

To which David Colquhoun has now added (improving greatly on my original suggestion):

Libel
A very expensive remedy, to be used only when you have no evidence. Appeals to alternative practitioners because truth is irrelevant.

MP Threatens Constituent With Libel Claim

A UK Member of Parliament has, on House of Commons headed paper, threatened a constituent with a libel claim.

Brian Jenkins MP sent this extraordinary letter after the constituent sent a critical letter to a local newspaper. It appears that rather than just correcting the factual error, and providing supporting evidence, Mr Jenkins makes a heavy-handed threat of a libel action.

Libel is (supposedly) about reputation. I wonder where this letter now leaves the very reputation which Mr Jenkins was seeking to protect.

For further information go to Iain Dale's Blog.

(For non-UK readers, Iain Dale's Blog is one of the top two or three UK political Blogs and he very kindly permitted me to copy the letter above on this site.)

POSTSCRIPT

Mr Jenkins once described as cowardly those MPs who used the protection of parliamentary privilege to make otherwise defamatory claims "against ordinary working people in this country" - see BBC report here .

The actual passage from Hansard (the official record of House of Commons debates) is:

Mr. Brian Jenkins (Tamworth) (Lab):

Can my right hon. Friend find Government time for a debate in this Chamber on the use of privilege?

We all know that privilege is used to stop rich individuals out there using the threat of legal action to prevent Members from raising issues here, but it cannot be right for Members to make allegations against ordinary working people in this country.

That cowardly use of privilege only detracts from the status of every Member of this House.

Saturday, 23 May 2009

UK Newspaper Group In Legal Move To Shut Down Elected Critic

The Telegraph Group made a legal move yesterday to take down an elected Member of Parliament's Blog when she had criticised both a newspaper's editiorial policy and the motivations of its proprietors.

I cannot add any substance to what Dizzy (my favourite UK political blogger) has got here in his scoop. I understand from this report that the actual legal ploy used was a breach of the "Acceptable User Policy".

In my opinion, the fact that Nadine Dorries is not for many of us liberals an attractive figure is neither here nor there in these circumstances.

On the basis of Dizzy's report, I think it is a disgraceful act by a UK newspaper group.

Another Bad Effect of Libel

Threats of libel claims do not only lead to things not being published which should be published.

Such threats can also lead to things being published which otherwise would not be published.

I understand a recent edition of a significant UK publication carried an article primarily because the writer threatened a libel claim over a poor book review.

I have read the article in question and I can confirm that it reads more like a Craig Brown or Alan Sokal parody than a serious piece of intellectual writing. In my view, it probably would not otherwise have been commissioned, let alone published.

I understand the writer got away with this demand because of the ease with which even a negative book review can be the basis of a defamation claim under English law and the sheer cost of defending the claim.

The reader of the publication, however, does not know this and would suppose that the article would have been commissioned in the normal editorially-sound way.

This is the state to which English libel law has brought responsible journalism.

The Real Jack of Kent

Many thanks to all of you who have visited this Blog over the last couple of weeks.

This is just a quick post to tell you more about the real Jack of Kent, after whom this Blog is named.

Jack of Kent is a wonderful but minor figure of the folklore of the English midlands and Welsh borderlands. He was not actually from Kent (as I am not, though I lived in Kent when I started this Blog), but possibly Kentchurch in Herefordshire.

In essence, Jack of Kent was a wizard of whom tales were told as to how he cleverly outwitted the Devil, a sort of John Constantine in medieval costume.

A good article on this intriguing figure is here (though the painting - which is not my avatar - is not on that page), and his Wikipedia entry also gives a fair summary, though one day I will write a fuller account of him on this site.

For me, minor folklore figures like Jack of Kent are far more interesting than, say, Robin Hood, King Arthur, or Dick Turpin. These more famous figures invariably owe a great deal to Victorian re-invention.

However, I am not sure how the original Jack of Kent would feel about being appropriated for this skeptical Blog.

The wizard side of him would I suspect want me to be fairer to modern magical thinking, such as homeopathy and other forms of alternative medicine. He would also surely shudder at being reincarnated as a lawyer. So I really do hope his ghost does not think too badly of me.

But I expect he would like the thrill of engagement with those who still wish to bedevil us.

If so, he would undoubtedly prefer to be associated with a site such as Gimpy (and that is a fascinating choice of name).

But Jack of Kent is stuck here on this Blog instead...

Thursday, 21 May 2009

BCA v Singh: What The Advertising Standards Authority Said

The UK Advertising Standards Association (ASA) has upheld a complaint against a chiropractor .

Whilst this determination does not directly affect the High Court litigation between the British Chiropractic Association and Simon Singh - an ASA determination does not legally bind the High Court - it may have a couple of extremely interesting - and potentially rather significant - implications.

And, in the meantime, the British Chiropractic Association seems to now be in absurd position of being stranded in the High Court litigating in respect of its promotion of its treatments for colic, when the ASA has effectively prohibited a chiropractor from making such a promotion.

The advertisement in question was:

Dr Carl Irwin and Associates CHIROPRACTORS. Back, Neck, Shoulder, Arm and Leg Pain, Sports Injury, Joint Problems, IBS, Colic, Learning Difficulties, Cranial Treatment for Mothers and Babies. To discuss any area of your health with our Doctors, call for a FREE Consultation.

(Emphasis added.)

The complaint was twofold.

First, which was upheld, it was about the use of the title "Dr".

But more interestingly (at least for me) it was whether the chiropractor "could substantiate the implied claim that their therapies could successfully treat some of the conditions mentioned, in particular IBS, colic and learning difficulties". And this was also upheld.

At this point, it is important to remember that the ASA's remit is simply to assess advertising against the advertising code.

The chiropractor facing this complaint sent to the ASA a "list of references and abstracts relating to chiropractic and the treatment of IBS (Irritable Bowel Syndrome), colic and learning difficulties to substantiate the claim "IBS, Colic, Learning Difficulties, Cranial Treatment for Mothers and Babies" (emphasis again added).

We do not currently know what this information was: the ASA may have been provided with more or less than the BCA were planning to put before the High Court.

Nonetheless, the information provided did not impress the ASA:

"The ASA acknowledged that manipulative therapies used by suitably qualified practitioners had been shown to be effective in treating back and joint pain and minor sports injuries. We noted the journal abstracts, conference paper reports and article references provided by Dr. Carl in support of the claim to treat IBS, colic and learning difficulties.

"In relation to the chiropractic treatment of IBS we noted the evidence provided included a 2007 randomised controlled pilot study relating to osteopathy and another randomised controlled study where results involving the treatment of IBS with osteopathy were described as "promising"; we noted, however, that those studies referred to osteopathy, not chiropractic.

"In relation to the chiropractic treatment of colic, we noted a number of reported un-controlled individual case studies where infants had been treated with chiropractic. We also noted several larger studies, one of which was a "prospective case study", another of which was based on "a retrospective uncontrolled questionnaire", another which was a "pilot study" presented at a conference and a fourth which was a blinded randomised controlled trial that measured the "short-term effect" of spinal manipulation on infantile colic.

"In relation to the chiropractic treatment of learning difficulties we noted a 2007 literature review of the effects of chiropractic on individuals with learning disabilities and dyslexia in which the reviewers considered that none of the studies met all of their pre-defined methodological criteria."


Accordingly, the ASA found that the chiropractor was in breach of the following particular advertising code provisions on Substantiation, Truthfulness, and in respect of Health and Beauty Products and Therapies:

3.1 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.

Relevant evidence should be sent without delay if requested by the ASA or CAP. The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication. The full name and geographical business address of marketers should be provided without delay if requested by the ASA or CAP.


7.1 No marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise.

50.1 Medical and scientific claims made about beauty and health-related products should be backed by evidence, where appropriate consisting of trials conducted on people. Where relevant, the rules will also relate to claims for products for animals. Substantiation will be assessed by the ASA on the basis of the available scientific knowledge.

However, it appears that the following provision was also examined but found not to have been breached:

50.3 Marketers should not discourage essential treatment. They should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless it is conducted under the supervision of a doctor or other suitably qualified health professional (eg one subject to regulation by a statutory or recognised medical or health professional body). Accurate and responsible general information about such conditions may, however, be offered.



The ASA regulates advertising and so, in one way, this welcome ruling needs to be kept in perspective. Had the determination gone the other way (and sometimes one cannot explain decisions by courts or regulators), it would not scientifically validate chiropractic for any ailment any more than this ruling invalidates it.

That said, this ruling could be important. As Dave Gorman points out with characteristic good sense:

"In light of the ASA ruling, it seems to me that when the BCA produced the Happy Families leaflet they were in effect giving their members bad advice - however sincerely meant it was at the time. Surely the BCA should now make best efforts to correct it. I think the only responsible action would be to tell their members not to make such claims because they cannot be substantiated. This is the only responsible thing to do until there is new evidence that can substantiate such claims. To not do so would be to fail to act in the best interests of their members."

Indeed - and also see Gimpy and New Humanist.

But the direct implications of this ASA determination are potentially serious from a professional as well as from a common sense point of view.

As the truly excellent Alan Henness ("Zeno") of ThinkHumanism pointed out to me, compliance with the ASA in advertising is actually a formal professional obligation of every chiropractor registered under the General Chiropractic Council (GCC).

The GCC's Code of Practice and Standards of Proficiency states at C1.6:

[Chiropractors] may publicise their practices or permit another person to do so consistent with the law and the guidance issued by the Advertising Standards Authority. If chiropractors, or others on their behalf, do publicise, the information used must be factual and verifiable. The information must not be misleading or inaccurate in any way. It must not, in any way, abuse the trust of members of the public nor exploit their lack of experience or knowledge about either health or chiropractic matters. It must not put pressure on people to use chiropractic.

Now as the ASA had already issued fairly restrictive guidance on chiropractic, see here, this new ruling makes it clear what the advertising obligations are of chiropractors are in respect of colic under the GCC Code of Practice.

Whatever else it may be, for any chiropractor to happily promote chiropractic for colic would now seem to place them in breach of their own professional obligations.

And so it is not now only a matter for the ASA or Trading Standards: it appears to me that any chiropractor promoting chiropractic for the treatment of colic can now face a complaint to and investigation by the General Chiropractic Council.

And so where does this leave the British Chiropractic Association? I simply do not know.

On one hand, it is not open to any reputable professional association to encourage its members to be in breach of professional obligations. To do so would be a very serious matter indeed. And here is certainly no suggestion that this is yet the case with the British Chiropractic Association.

On the other hand, the British Chiropractic Association should urgently clarify its positon on the treatment of colic and, in particular, the status of the Happy Families leaflet, which of course stated (emphasis added):

"There is evidence to show that chiropractic care has helped children with the following symptoms:

Asthma
Colic
Prolonged crying
Sleep and feeding problems
Breathing difficulties
Hyperactivity
Bedwetting
Frequent infections, especially in the ears"
.

It would appear to me that, at least from the date of this new ASA adjudication, making such a claim for the treatment of colic could possibly be contrary to the GCC Code of Practice.

If so, it would render odd that the British Chiropractic Association still wishes to litigate in respect of its promotion of chiropractic for the treatment of colic when such a promotion by its members would now seemingly be a breach of their professional obligations...

Wednesday, 20 May 2009

The Simon Singh Support Meeting

"...the event was simultaneously informative, funny, heart-warming and energising."

The speakers were Prof Chris French, the comedian and bestselling author Dave Gorman, the journalist Nick Cohen, Dr Evan Harris MP, Prof Brian Cox, and Simon himself.

Dave Gorman has now written Chiro-Bullies, a great article about the evening and about what the British Chiropractic Association SHOULD be doing about the claims made in their now (seemingly) withdrawn Happy Families leaflet instead of suing Simon Singh for criticising it.

Nick Cohen has blogged about the evening here saying the "judge and I think the chiropractic association did not take account of the growth of science activism. Writers and scientists are furious at the attempt by the law to restrict debate, and a net-roots campaign for freedom of speech is building nicely".

Video highlights see here - many thanks to Michael Story for making this.

Twitter commentary: #singhbca

Graham Lawton of the New Scientist also attended and is emphatic in his concern about English libel law and its effect on science writing.

Another good review is at the New Humanist.

The following messages of support were read out:

Joint statement of Phil Plait and James Randi

"We at the JREF support Simon in his quest for justice. It's clear from his writing that his intent was not to claim that the BCA knowingly commits acts of fraud, but that the BCA is nonetheless incorrect in their claims of the efficacy of chiropractic.

“Simon is, of course, correct. Furthermore, the ruling, as it stands, would produce a chilling effect on the ability of journalists to question the claims of anyone, including pseudoscientists.

"Whatever path Simon chooses over this issue, the JREF will be there, and to the best of our ability we'll have his back."


Professor Richard Wiseman

"England’s strict libel laws can deter individuals from speaking out against bad science, even when they have strong evidence for their argument. Simon's campaign deserves the support of everyone who cares about fighting pseudoscience, and I wish it every success."

Dave Morris of the McLibel 2

[We] “should all be opposed to aspects of English libel law which unfairly protect public or corporate bodies from public scrutiny and fair criticism, especially around health and scientific issues."

Dr Ben Goldacre of Bad Science

“Ideas and practises improve when they are criticised, and that’s important, because medicine always has the potential to do great harm.

"Sadly the alternative medicine community has shown itself to be utterly intolerant of criticism: they refuse to disclose their university teaching materials, their university exams are closely guarded secrets, and rather than embracing and engaging with critics, they sue them, silence them, smear them, or stifle them.

"Brothers and sisters in nerdiness, we stand together!”


Indeed.

Many thanks for everyone who came along, and also to those who sent their best wishes.

(Particular thanks for helping making the event possible to Chris, Norman Hansen, Nick Pullar, Imran Khan, Gia Milinovich, and Padraig Reidy of Index on Censorship. And a great thank you to all the Penderel's Oak staff.)

Saturday, 16 May 2009

What the British Chiropractic Association - and English Libel Law - should do next

Simon Singh is preparing to announce his decision as to whether he will appeal or not.

So it is perhaps a good moment for me to step back and examine the wider legal context of this case, to take stock and to share some general observations with you.

I will also explain why I believe English libel law should be reformed in respect of public health and public safety issues.

(Please note it is English libel law - not UK or British libel law. Scotland and Northern Ireland have their own legal systems. Only Wales shares English law. Yes: it not even the entire UK's legal system which is the cause of international libel tourism and of the chilling effect.)

And I will make a friendly suggestion as to what the British Chiropractic Association should really do to protect their reputation.


1. The Reputation Of The British Chiropractic Association

I will start with - what is legally speaking - the very heart of the case: the reputation of the British Chiropractic Association.

It is this reputation which is supposedly at stake in this litigation, and it is this very reputation which the British Chiropractic Association is seeking to protect through this litigation.

On this basis, it may not have been a pleasant week for the British Chiropractic Association.

Their victory at the preliminary hearing does not seem to have played at all well either in the mainstream media or the blogosphere.

(On this, please see this excellent digest of coverage by Chris Kavanagh.)

And the coverage in such a beacon of the mainstream media as The Economist was probably what not the British Chiropractic Association, their media advisers, and their lawyers, were expecting.

It may even appear to some people that the reputation of the British Chiropractic Association itself has suffered, rather than been vindicated, by all of this. Some may say that its reputation could suffer more as this case continues.

If so, the British Chiropractic Association was warned about the potential adverse effects of this libel action (hat tip to Edd for reminding me).

As I was once told by the (probably) best media litigator in the City: a competent libel lawyer can tell you whether you have a case; but a good one will tell you whether you should actually bring it.


2. The British Chiropractic Association's Misconceived Libel Case

By various accidents and quirks of English libel law, the British Chiropractic Association was always in a strong position in this litigation.

I have always described their case as misconceived, but not weak.

BTW "Misconceived" is lawyerly and courtroom speak: but there is perhaps a shorter (and indeed recently much-analysed) word which can in my view be an almost-perfect synonym for every time a lawyer ever says something is misconceived.


3. How to Evaluate the British Chiropractic Association's Reputation: A Practical Approach

The British Chiropractic Association promotes chiropractic, a form of complementary and alternative medicine.

To paraphrase the Bishop of Southwark, such promotion of chiropractic is what the British Chiropractic Association does.

Chiropractic consists mainly of spinal manipulations, and so it is an activity which can be dangerous and may have adverse side-effects.

But it is a completely legal activity, and the British Chiropractic Association exists to promote it. There can be nothing wrong with this.

In its pamphlet - now seemingly withdrawn - "Happy Families" - the British Chiropractic Association stated:

"Birth trauma

Although a natural process, birth is sometimes traumatic for both mother and baby,

Chiropractic may help you and your baby recover from any birth trauma.

Treatment aims to relieve the stress that can affect your baby’s neck and head, especially if forceps or other medical assistance was involved, or if it was a breech birth.

There is evidence to show that chiropractic care has helped children with the following symptoms:

Asthma
Colic
Prolonged crying
Sleep and feeding problems
Breathing difficulties
Hyperactivity
Bedwetting
Frequent infections, especially in the ears"



Here chiropractic is not only being promoted for children but, on a natural reading, even babies.

Again, there is surely nothing too surprising - or necessarily wrong - with this because again promoting chiropractic is what the British Chiropractic Association does.

But note: chiropractic is here being promoted for children and babies not just for back pain, but for a wide number of ailments, including potentially very serious afflictions such as asthma and serious ear infections.

This is where I think the public interest becomes fully engaged in this legal case, and any rights that the British Chiropractic Association has in its reputation must become qualified by - and yield to - the priorities of public health and public safety.

This imperative is because the efficacy of the manipulation the spines of children (who almost by definition have not fully developed) and babies must be something in which there is a legitimate public interest.

This public interest is then amplified significantly with matters as potentially highly serious as asthma and frequent ear infections

As a lawyer would say: this requires "anxious scrutiny".

Now, at the time the Happy Families leaflet was produced, the British Chiropractic Association purported to provide scientific evidence in support of these propositions.

However, as my summary of Singh's defence indicated, this evidence was at best misconceived:

"1. Colic

Simon Singh lists a number of trials where Chiropractic has been shown to be ineffective: Olafsdottir (2001), Ernst (2003), Husereau (2003), Ernst/Canter (2006).

He then provides a detailed critique of the Wiberg (1999) trial cited by the BCA, and in particular where it did not meet most of the standards required and expected of a properly-done clinical trial.

2. Sleeping Problems

Simon Singh is unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with sleeping problems.

He points out that the BCA's reference is to a page in a book (Anrig & Plaugher) discussing two case reports.

3. Feeding Problems

Similarly, Simon Singh is unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with feeding problems.

He points out that the BCA's reference is to a page in a book (again Anrig & Plaugher) discussing feeding habits of parents, with no research or evidence.

4. Frequent Ear Infections

Simon Singh is also unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with frequent ear infections.

He points out here that the BCA reference is to an unpublished ongoing trial.

5. Asthma

Simon Singh lists a number of trials where Chiropractic has been shown to not be effective: Balon/Aaker (1998), Balon/Mior (2004), Hondras (2005) and Ernst/Canter (2006)

He then points out that the BCA's citation (Kukurin) is to a letter to the editor commenting on a pilot study.

6. Prolonged Crying

Simon Singh is also unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with prolonged crying.

He points out here that the BCA's citation is to a non-publicly available paper (Budgell) which looks at the experience of chiropractors and does not look at clinical trials.

After these detailed expositions, Simon Singh then sets out the risks for children who receive Chiropractic treatments for these ailments rather than those which have been subjected to clinical trials."



Now, at this stage, I invite you to re-read the excerpt from the British Chiropractic Association's Happy Families and the summary of Singh's defence.

Concentrate on each particular ailment mentioned and what Singh was stating in response, and whilst you do this, bear in mind that all this is in the sensitive context of spinal manipulations of children and babies.

Everyone following this case should be aware of the exact claims the British Chiropractic Association were making and what Singh had to say about the evidence they had put forward to support each of those claims.


So to return to the reputation of the British Chiropractic Association.

What would any reasonable and objective person think of the British Chiropractic Association, and of its promotion of chiropractic to children and babies, if Singh's defence is actually valid?

Of course, we may not now know if it is "legally" valid, because of the ruling in the preliminary hearing. And so for now the situation is worryingly left uncertain and unsatisfactory.

But, as Heresiarch wisely pointed out in a comment on an earlier post on this site, the formal litigation is (unless appealed) now about alleged fraud and not treatment.

There can surely now be no problem with the British Chiropractic Association now dealing fully with the points raised in Singh's defence.

So I urge the British Chiropractic Association to respond publicly and swiftly to Singh's critique of its supporting evidence for the Happy Families contentions, regardless of what happens to this misconceived libel litigation.

If the British Chiropractic Association does not respond, it may be that reasonable and objective people can draw their own conclusions about what the British Chiropractic Association did with the Happy Families leaflet.

Here the reputation of the British Chiropractic Association may really be at stake.


4. Why Can The British Chiropractic Association Sue For Libel When it Not Even A Real Person?

Now I turn to the counter-intuitive point that the British Chiropractic Association can sue in the first place.

I regard this part of defamation law as Alice in Slanderland.


It is a legal fiction that companies and other corporations have "personality". As Jules Winnfield says in Pulp Fiction, personality can go a long way.

And the presumption in English law is that those with natural and "legal" personality have exactly the same standing. Of course, companies don't really exist: they have no tangible existence.

As the (sometimes - though not always - brilliant) English judge Lord Denning said, companies have "no body to be kicked and no soul to be damned". In my view, they should also have no reputation which can be sued upon.

Or if they should, it should be a narrow right to sue similar to "slander to title" - so if I alleged (which I do not) that the British Chiropractic Association was really promoting homeopathy when it's objects state it should be promoting chiropractic, it may perhaps have a legal remedy. After all, the Bishop of Southwark is not the Bishop of Liverpool.

Some years ago, in an important decision for free speech, the English courts ruled that public bodies (or at least statutory corporations) could not sue for defamation: this is the Derbyshire case. Sadly, more recently, the rights of trading companies to sue for defamation - such as Tesco - have been upheld.

The British Chiropractic Association is not Tesco. It doesn't even have shareholders. It is a "company limited by guarantee", existing to be a representative body of a profession.

It can sue for defamation simply because of the historical quirks of English libel law. But, in my view, the circumstances in which such a "legal" person can sue for defamation - if any - should be limited.

Singh is intending to make this "corporate point" if his case continues, regardless of the result of any appeal (or non-appeal).

I think he should.


5. Libel Reform and Public Health and Safety: A Proposal

But I would go even further than the "corporate point".

In the field of public health, it really should not be open for any provider or promoter of treatment - human or corporate - to sue for defamation in respect of their provision or promotion of those treatments, unless they can show malice by the defendant.


(And the same goes for public safety.)

The rights of providers and promoters to their reputations - however legitimate - are less important than ensuring that there is full and frank discussion of the merits of such treatments.

There should be a change.

And such a change is all perfectly possible in English libel law.

There is a doctrine of "qualified privilege" which protects defendants in a range of sensible contexts. It covers, for example, complaints to the police or certain communications between employees. It is now even being extended to cover "responsible journalism" with the so-called "Reynolds Defence" .

With qualified privilege, claimants with any legitimate right to their reputation can still sue for defamation if they can show malice (a high hurdle in English law).

But it is the claimant which has the burden of proof, not the defendant.

Qualified privilege has the underlying policy objective of ensuring candid but non-malicious debate.

It should be urgently extended to cover matters of public health and public safety.

Singh's case had not really progressed far enough for this "qualified privilege" point to be raised. The case has only got to the preliminary hearing on meaning. This is more a point for a further hearing or the full trial, even if last week's ruling is not overturned.

I hope the point is made: we desperately need a "Simon Singh Defence" to complement the "Reynolds Defence".


6. My Friendly Suggestion for the British Chiropractic Association

As for the British Chiropractic Association, I would remind them that libel should be about reputation, and libel litigation should be about effectively protecting such reputation.

Their press release states that the result of this preliminary hearing on meaning has "vindicated" the British Chiropractic Association (though of course such a meaning remains untested by full trial and so any claim for vindication is actually misconceived).

However, with such a vindication, perhaps they should now consider dropping this case?

The correct response to Singh's challenge on the evidential basis for chiropractic for children and babies with the non-back related ailments should always have been for the British Chiropractic Association to hold their evidence up to scrutiny.

It remains an important matter for public concern. The public interest here cannot be withdrawn like an unwelcome and misconceived leaflet.

As Frank Frizelle said to the New Zealand chiropractors and their lawyers in a similar case:

"Let’s hear your evidence, not your legal muscle."

And providing the hard evidence is what the British Chiropractic Association should now do: that is, if their purported interest in protecting their reputation is not entirely [blank].

Thursday, 14 May 2009

BCA v Singh: Update and Roundup

I understand that Simon Singh will announce whether he will appeal on Monday 18 May 2009 at a public support meeting to take place in London at 6.30pm.

The venue will be the Penderels Oak, the usual meeting place of London Skeptics in the Pub.

As well as Simon Singh, the leading UK journalist Nick Cohen will be speaking. Other speakers are currently being confirmed.

(For further updates see the Facebook site and my Twitter.)

I understand that a fund is being considered either to support this case (though third party funding of UK litigation is a complex area) or as a distinct legacy fund to support the ongoing scrutiny of the promotion of CAM. A dedicated website on this case, and the issues relating to the promotion of CAM, is also being prepared. More details to follow.

Many thanks indeed to everyone who took the time to make such highly constructive comments and suggestions as to what he should do next. I understand each of these these contributions - including the proposed Heresiarch manoeuvre - have been considered by Simon and his team.

Particular regard should be given to the comment of "Richard Keen" - actually known to me to be a leading libel specialist - that the judge may have been influenced by the word bogus in the context of "happily promote" and that the defamatory passage as a whole needs to be borne in mind.

This story has now been picked up more widely on the web.

Two posts stand out in particular.


The bestselling writer and comedian Dave Gorman powerfully criticises the potential implications of the ruling - see the Second Thing here.

And the psychologist (and excellent blogger) Petra Boynton provides a thoughtful and humane account of the the experience of a writer actually being threatened with such libel actions.

Both posts are - for me - "must reads".

You may also be interested in my own article in this week's New Scientist.

Simon Singh suffered a bad setback a week ago.

However, the attention now being given to the issue of the misconceived promotion of CAM, as well as the real problems of science writing under English libel law, has at least ensured that - in its way - this has also been a Chiropractic Awareness Week.

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.

Friday, 8 May 2009

BCA v Singh: An Astonishingly Illiberal Ruling

This post has been superceded - now see Offical Text of Ruling.

Yesterday the English High Court made an astonishing and highly illiberal ruling in the libel case brought by the British Chiropractic Association against Simon Singh.

The ruling was by Sir David Eady, the presiding judge. He has decided the "meaning" which should be given to the passage complained of in Simon Singh's original article.

The passage is:

"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."

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.

Yesterday Singh's lawyers argued that the passage was a comment and the BCA's lawyers argued it was a statement of fact. Interestingly, the BCA did not contend in their oral argument that the passage was a statement about their dishonesty but really their recklessness and irresponsibility in promoting such treatments. Both parties also put in written submissions which were before the judge.

I was in court. The judge did not take a single note during the oral submissions of the BCA, and he hardly took a note during Singh's submissions. The reason for this soon became painfully clear. He had already prepared his ruling before even hearing the oral arguments.

When the initial oral submissions concluded, Eady did not (as was widely expected) reserve the decision until a later date. He instead began to read out his prepared judgment. This was before noon on the preliminary hearing's first day; the hearing was effectively over by lunchtime.

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.

This shock ruling went far further than what the BCA had asked for in their oral submission (though it may have been in their written submission).

This ruling also did not even refer to the fact that Singh's use of the word "bogus" is actually set out in the following paragraph of the following paragraph in the original article:

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.

The judge's omission here was notwithstanding Singh's lawyer had strongly emphasised it in oral submission. Indeed, on the basis of the pre-prepared ruling which the judge read out, there is no direct evidence that the judge had actually read this following paragraph.

Where does this now place this litigation?

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.

One option is for Simon Singh to appeal. He has to decide this within three weeks. That said, the English Court of Appeal is usually unlikely to overturn a first instance decision on meaning: it is the sort of point on which English higher courts will defer. However, he would need to exhaust domestic processes before he can refer the case to the European Court of Human Rights as breach of Article 10 (freedom of expression).

Another possibility is settlement, and there would surely be no shame in settling because of this bizarre and illiberal ruling on meaning.

And is English libel law a form of bogus justice? I could not possibly say...

Thursday, 7 May 2009

BCA v Singh: Preliminary Hearing Begins

The preliminary hearing for the libel case brought against Simon Singh by the British Chiropractic Association will be heard at the English High Court on Thursday. It may last up to two days.

As this is a preliminary hearing there will not be any examination or cross-examination of evidence. There will be no experts.

Instead the preliminary hearing will, as its name suggests, deal with certain preliminary issues:

- can the BCA actually show that they have been defamed?
- were the passages complained of in the original article "comment" or a statement of "fact"? Or both?
- what did the passages mean?

On the first point, if the court does not accept the BCA has an appropriate "reputation" or, even if it has, its reputation has not been defamed, then the case can be struck out straight away. If so, the BCA here will not have even got to first base.

On the next two points, the court's rulings will determine whether Simon Singh has to run a "fair comment" or "justification" defence - or both.

It is unlikely that the court will make its judgment this week, but it should be due well within a month. The main hearing, if it still goes ahead, will likely be after September 2009.

Please do come along if you are in London. There is plenty of room in court.