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Sunday, 28 June 2009

The BCA's Reply

Back on 3 November 2008, the British Chiropractic Association served a formal "Reply" to Simon Singh's Defence.

However, for some unknown reason this Reply was not on the Court File as late as 16 December 2008 (you may also remember the rather patronising response I got from the BCA's PR company when I chased this) and so I could not then obtain the Reply so as to Blog about it.

The Reply has now been obtained from the Court Office under the relevant provision of the Civil Procedure Rules.

(Any person can do this - just pop along to the nice staff at the Royal Courts of Justice in London, apply for the Statements of Case for Case Number HQ 08X02657, and pay for the photocopying.)

I set out my summary of this Reply below.

However, the Reply first requires to be put in context.

A Reply is a formal Court document with a specific purpose. It enables a claimant - here the BCA - to set out its response to the Defence of the defendant - here Simon Singh. It is not a document addressed to the world. It is not even a document which is addressed to the Court generally, other than in response to the pleaded Defence. The summary and (importantly) the quotations which now follow need to be put into this context.


Form and Content

My initial reaction to the Reply was to its size. The Defence was just twelve pages long; the Reply runs to some thirty-six pages.

Often a Reply is quite short - usually shorter than the Defence - just picking up points in the Defence which may not have been anticipated when the Claim was originally made.

The length of the Reply is a testament to how much work was required by the BCA to meet Simon Singh's Defence. You may recall that the Defence set out full defences on fair comment and justification, and in both respects putting the BCA to test on the evidence for chiropractic for various children's non-spinal ailments.

Indeed, it appears that pleading "Fair Comment" led to the BCA creating the (now discredited) "plethora" list of evidence. I understand the BCA served this list on Simon Singh on the same day as the Reply, so to put him to test as to the evidence of which he was aware when he wrote the original article: the BCA would have to show that he hadn't reviewed the appropriate evidence to displace the Fair Comment defence.

The High Court, however, ruled that the Fair Comment defence was not available to Simon Singh and so, technically (and subject to Appeal), the "plethora" is no longer relevant to the case.

Nonetheless, the "plethora" probably would never have been created had Simon Singh not pleaded the Fair Comment defence; a defence - of course - the BCA has consistently maintained he was not even entitled to plead.


The Start of the Reply

The Reply commences with a general attack on the Defence. For example:

"It is open to the Defendant to apologise for and to withdraw the defamatory allegations he made. The Defendant has not offered to do so. Further, the Defendant has not offered to make the position as to the Claimant clear publicly; he has not even offered to clarify publicly that (it it were to have been the case) he had not intended to impugn the integrity of the Claimant as the Claimant complains he had." (Para 2(3) of the Reply.)

Then there is a passage which, out of context, seems extraordinary:

"Instead, the Defendant has sought to mount a defence to different allegations (not the ones complained of in this action); and, in order to mount such a defence, he has resorted to place [sic] a strained and unnatural interpretation on the plain word, "evidence", he used. The Defendant seeks to depart from its ordinary meaning (as it would have been understood by readers of his article) and to treat "evidence" as if it meant only "evidence from randomised controlled trials". This artificial approach departs from the proper approach of medical scientists."

It would rather appear that the BCA regards RCTs constituting the appropriate evidence base for assessing chiropractic to be a "strained and unnatural interpretation..[an] artificial approach".

This may well be the case, but please remember that in this paragraph the BCA are not directly making such an admission to the public, but are instead seeking to head off Simon Singh's pleaded Defence as to what "not a jot of evidence" meant.


The Reply on Chiropractic generally

The Reply then provides a lengthy ten page exposition on chiropractic generally, its regulated nature in the UK (statutory regulation is mentioned frequently), and the background of the BCA and the ill-fated "Chiropractic Awareness Week".

In this plethora of detail, most of which is not directly related to the Defence, the following information is provided:

- the BCA define Chiropractic as "a health profession concerned with the diagnosis, treatment and prevention of mechanical disorders of the musculoskeletal systems and the effect of those disorders on the function of the nervous system and general health" (Para 3(1) of the Reply);

- and Chiropractors are defined by the BCA as "independent practitioners, with responsibility for patients in the primary care setting. Chiropractors take a holistic approach to health and wellbeing, considering its physical, psychological and social aspects. By restoring normal function to the musculo-skeletal system, chiropractors can play a major part in relieving disorders, and accompanying pain or discomfort, arising from accidents, stress, lack of exercise, poor posture and everyday wear and tear." (Para 3(2) of the Reply);

- the BCA states that the over-riding consideration in chiropractic is that "[t]he treatment and techniques used by a chiropractor in any individual case will depend upon the health and health needs of the patient", but subject to this consideration, there is an emphasis on manual treatments, including manipulation or adjustment, and that other forms of treatments regularly used include "exercise and rehabilitation; preventative measures; advice, explanation and reassurance (for example, as to the kinds of activity and behaviour that promote recovery and advice as to nutrition and diet)" (Para 3(3) of the Reply);

- the GCC Code of Conduct "lays down standards of personal and professional conduct expected of registered chiropractors. Chiropractors must meet high standards of conduct and practice." (Para 3(9)(a) of the Reply);

- the BCA state that "chiropractors take great care that any treatment they administer to patients is effective and safe" (Para 3(10) of the Reply), and this includes that "Chiropractors will explain the care and treatment proposed to the patient, including any known risks in any particular form of assessment or care. The chiropractor will also explain any need to refer the patient to another health professional." (Para 3(10)(d) of the Reply);

- the BCA list the additional requirements for the care of children, including obtaining consent (Para 3(12) of the Reply) and that there are various "red flags" which mean the child should be referred to a GP or hospital; the BCA also notes that chiropractors "have regard to the fact that a child's neuro-muscular-skeletal structure is less rigid and more flexible than that of an adult; and that young and developing tissues are more susceptible to damage and injury". (Para 3(13) of the Reply;

- the BCA "is committed to the highest standards of excellence in chiropractic, patient care, standards of practice and continuing professional development" and that it has a "professional statement" (not quoted) and a professional standards committee (Para 4(3) of the Reply);

- the BCA is not, and does not purport to be, "a research establishment offering a complete guide to all research information published and/or available in relation to chiropractic." (Para 4(6) of the Reply); and

- the BCA "generally promotes chiropractic on behalf of its members" (Para 4(7) of the Reply).


The BCA and Simon Singh

The BCA then issue a couple of challenges to Simon Singh.

Having stated that they do not purport to be "a research establishment offering a complete guide to all research information published and/or available in relation to chiropractic" they nonetheless assert that Simon Singh "is put to strict proof as to the extent of his research into, and the extent of his knowledge about, chiropractic...and, in particular, what research papers he had read and the extent of his consideration and independent evaluation of them" (Para 5(1) of the Reply).

Furthermore, Simon Singh "had a duty, as a scientist with Cambridge PhD, to acquaint himself with the state of the published literature as to the effectiveness and risks of chiropractic before making public claims about it." (Para 5(2) of the Reply.)

This is a remarkable line of argument.

The BCA are stating that Simon Singh has to meet a far higher standard of knowledge of chiropractic research in criticising the BCA than the BCA itself has to meet in promoting chiropractic in the first place.

The BCA later in the Reply make this contrast clear. In Paragraph 9(20), they state that whilst their website "does not purport to cite, and does not cite, all available evidence in respect of chiropractic...it is for the defendant to establish,on the basis of a comprehensive review of all available evidence (whether published or unpublished) that there was not a jot of evidence that chiropractic can help with the specified matters".

Indeed, the BCA will accept only a lesser duty to "acquaint itself with the state of the published literature as to the effectiveness and risks of chiropractic and that, in terms of what it publishes, the claimant has a moral duty not to mislead the public." (Para 9(29) of the Reply.)

(In passing, I fail completely to see the relevance of the PhD being from Cambridge University. Whilst I am - in principle - all for Cambridge graduates having a more onerous time in life than the rest of us, holding a Cambridge PhD should not really create an obligation which, say, a Durham or Middlesex PhD would not have. And, presumably, with my simple MA, I would escape this duty altogether.)


The BCA and Professor Ernst

The BCA also attack the research of Professor Ernst to which Simon Singh refers in his Defence.

For example, in respect of Ernst and Cantor's important "A systematic review of systematic reviews of spinal manipulation" in the Journal of the Royal Society of Medicine, we get the quite wonderful:

"The JRSM is a peer review publication, but does not have a high impact factor; it is not, for example comparable to the British Medical Journal or Spine in scientific quality." (Para 9(19)(a) of the Reply.)

Which leads to the rather brilliant:

"the authors' approach was subjective; their assessment of the quality of the reviews included in the study was loose, although more robust and clinemetrically sound approaches were available. This may have led to the paper being published in the JRSM, rather than a higher-status publication" (Para 9(19)(b)(ii) of the Reply).


The BCA and "Research"

And now we come to a really interesting part of the Reply: what the BCA has to say about evidence.

The BCA admit that "a systematic review of studies can be a valuable means of assessing the published evidence for and against the effectiveness (or lack of effectiveness)of interventions. However, a systematic review is valuable and effective only if there is sufficient data available to be reviewed. Where, as in the case of chiropractic, there is very limited RCT data available, it is difficult to extract any definitive conclusion from a systematic review of that data" (Para 9(15) of the Reply).

The BCA then proceeds to state that Simon Singh's approach in his Defence to evidence "is wrong in principle and fundamentally misguided" (Para 9(18) of the Reply).

Indeed, "the proposition that 'evidence' is meaningful only if it comes from RCTs is wrong and not supported by good medical practice" (Para 9(18)(c) of the Reply).

"RCTs are one form, but by no means the only form, of evidence. other forms of evidence include: historical control trials, non-randomised contemporaneous controlled trials, case control studies, before and after designs and case series and case reports. All of these constitute 'evidence', as is recognised by various systems that have been devised to reate (or grade) forms of 'evidence' in the medical context." (Para 9(18)(c)(i) of the Reply.)

The BCA further state that the primary role of RCTs has been in the context of new drug treatments where a placebo can be used, but that RCTs are not the only form of evidence. Moreover, "Trials without placebo are a standard part of the UKs Medical Research Council's funding policy." (Paras 9(18)(c)(ii) and (iii) of the Reply.)


Chiropractic and the Children's Ailments

It is page 26 of the Reply before the BCA finally address the actual points made by Simon Singh about the efficacy of chiropractic for the six children's ailments.

This part of the Reply begins with a stunning concession by the BCA in respect of three of the ailments:

"Prolonged crying, sleeping problems and feeding problems may (together or separately) be a symptom of colic or otitis media. Those conditions are dealt with further below, including the evidence that chiropractic has helped." (Para 9(21) of the Reply.)

In other words, the BCA does NOT have any separate evidence for three of the six ailments listed in the original Happy Families leaflet.

We then turn to Asthma:

"So far as the treatment of asthma is concerned, there is some positive evidence and some negative evidence. While, on the one hand, there is insufficient evidence to prove definitively that treatments is effective, there is, on the other hand, insufficient evidence to prove that it is not effective." (Para 9(22) of the Reply.)

The BCA then discusses Balon/Aaker (1999), the Kukurin lettter, Bronfort (2001), Bockenhauer (2002), Balon/Mior (2004), Hondras (2005), Guiney (2005), and Ernst (2006). (I will set out this discussion out in a future post.)

And then Colic:

"There is positive evidence that chiropractic can help to treat infantile colic." (Para 19(23) of the Reply)

Here the BCA rely on Klougart (1989), Mercer & Nook (1999), Wiberg (1999), and Olafsdottir (2001).

(Again I will set out what the BCA says for each of these studies in a future post.)

Lastly, frequent ear infections:

"It is admitted that the reference on the website was to the ongoing Eisenberg trial, which has not published results." (Reply 19(24) of the Reply.

The BCA then cite a single study: Mills et al (2003) on the use of osteopathic manipulative treatment (not chiropractic). After summarising this study, the BCA states: "There is, therefore, good evidence from this single trial that chiropractic can help treat frequent ear infections".

No other study for ear infections is mentioned.

(The BCA then move on the Reply to discuss the research as to the general safety of chiropractic, relying on the Thiel Report (2007) and the Cassidy Report (2008).)

So, in stark terms:

- the BCA cannot produce any separate evidence for the efficacy of chiropractic for three of the six named ailments and seek to merge these ailments with the others;

- the BCA cannot produce any evidence for the efficacy of chiropractic for ear infections, other than one dealing with osteopathy;

- the BCA admits the evidence for for the efficacy of chiropractic for asthma is inconclusive; and

- on their "strongest" ground - colic - the BCA relies on evidence which (presumably) failed to even satisfy the ASA.


Conclusion

The heart of this case has been the efficacy of chiropractic for six particular children's ailments.

Buried under the sheer mass of legal paperwork has always been a quite simple issue: what was the quality of evidence for the claims of the BCA in their now-withdrawn and discarded Happy Families leaflet.

Until and unless this basic evidential issue was squarely addressed by the BCA, any legal action would be misconceived.

By casting his defence in wide terms - putting chiropractic on trial for those ailments - Simon Singh forced the BCA to address these points.

Together the Reply and the "plethora" indicate that the BCA's claims may have had no proper evidential basis all along.

One wonders why the BCA did not spend a fraction of the legal costs on just providing this "evidence" in the first place; and then we all could have assessed whether it constituted a "jot of evidence" and whether the happily promoted treatments were "bogus".



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Wednesday, 24 June 2009

Coming Up: the BCA's Reply

I have now obtained a Court file copy of the Reply submitted by the British Chiropractic Association.

This is the formal response by the BCA to Simon Singh's Defence.

It is a very substantial document - far longer than the Defence - and it will take a day or two to fully absorb. However, I can reveal there are some highly interesting statements about what constitutes evidence.

I will soon set out a fair summary of the Reply on this Blog: this will probably be at the weekend.

Tuesday, 23 June 2009

Jeni Barnett and MMR: Analysis of the Ofcom Decision

This is my analysis of the Ofcom determination of the complaints against the notrious Jeni Barnett radio show broadcast on 7 January 2009.

I set out this determination in full below, in italics. And, as I did with the Night Jack court ruling, I have inserted my comments in [brackets].

My general view is that it actually is not a bad or surprising ruling, given (a) the narrow questions which Ofcom had to address given the actual wording of the Code and (b) the evidence submitted by LBC's lawyers (which in large part seems to have relied on the contributions of the hostile callers to provide "balance" not provided by the presenter).

Indeed, Ofcom makes intersting comments about the inadequate briefing for the presentation of the broadcast and how the presentation was was unclear on significant points, and it also comments about the impatient and dismissive manner the presenter dealt with criticism.

Skeptics should thereby not be discouraged by the overall ruling that the radio show was "not in breach", for as a careful reading of the ruling perhaps suggests that Ofcom is really quite damning about the quality of the broadcast.

The source of this text is the Ofcom site here, which I gratefully acknowledge.


Jeni Barnett
LBC 97.3 FM, 7 January 2009, 14:00


Introduction

LBC 97.3 FM (“LBC”) is a local speech based commercial radio service which broadcasts across Greater London. Ofcom received 190 complaints regarding a discussion about a parent’s right to not give their child the Measles, Mumps and Rubella (“MMR”) vaccination, on the weekday afternoon phone-in discussion programme presented by Jeni Barnett.

The complainants expressed concern about the way in which Jeni Barnett presented and handled the phone-in discussion on this topic. In their view the programme gave such an unbalanced, inaccurate and irresponsible portrayal of the dangers of the triple MMR vaccine that it could have caused considerable anxiety to parents. This in their view could reduce the take up of the vaccination resulting in a considerable threat to public health.

Ofcom asked LBC to comment with reference to the following Code Rules:

2.2 – factual programmes or items or portrayals of factual matters must not materially mislead the audience; and
5.13 – local radio services must not give undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy and matters relating to current public policy in all the programmes included in any service taken as a whole.

Ofcom was of the view that the MMR vaccination could be considered a matter relating to current public policy given that it is part of the Government recommended childhood vaccination schedule.


[Here Ofcom is setting the scene. It is their job as a regulator to convert often general complaints into potetential breaches of particular provisions of the Code. In this case they have identified two code provisions. The last sentence is to explain why Code Rule 5.13 is applicable. The use of 5.13 is interesting as it is not an immediately obvious provision, and it perhaps shows that Ofcom wanted to ensure LBC had to deal with the strongest possible complaint against the broadcast.]


Response

LBC responded that the debate on the right to choose the MMR vaccination was based upon presenter opinion, as was much of LBC’s output. Indeed, the focus of this discussion was based on Jeni Barnett’s own personal experience as a mother - who had chosen not to give her daughter the triple MMR vaccine – and the right for her to make this choice for her child without being criticised for it.

From the outset of the programme, the broadcaster argued that Jeni Barnett made clear that she was not an expert herself and that this programme was focused on the notion of informed parental choice, not about whether immunisation was good or bad. Furthermore, the presenter had invited experts, as well as parents who had refused the vaccination, to call in and had advised against scaremongering. In conclusion, they argued that the programme did not “stray into the bounds of providing factual information that mislead listeners” and did not breach Rule 2.2.

With reference to Rule 5.13, the broadcaster stated that given the nature of LBC’s output, the vast majority of its content would in some way be related to government policy and therefore fell within the bounds of “current public policy”. In their view however, the Code provided scope for presenters to express their own opinions thereby stimulating debate, provided that a fair opportunity for comment was offered.

The phone-in format of the programme afforded this facility.

In this particular programme Jeni Barnett received six callers to the programme, four of whom presented opposing views to her. Indeed, the second caller actually pointed out that he was a regular listener and that every medical expert he had heard on LBC discussing the issue of MMR had said it was “a good thing” and the evidence against it had been refuted.

Overall these points demonstrated that the broadcaster had not only provided balance in this broadcast but also across its output. Given that Rule 5.13 defined undue prominence as a “significant imbalance of views” the broadcaster stated that this programme did not reach this level of imbalance and was therefore not in breach of this rule.


[Fairness requires that a case is put to the relevant party before a determination. LBC would have instructed lawyers to prepare this response, and so the response is closely honed to the terms of the two Code Rules. This is how, in general terms, companies will usually have an advantage in regulatory matters.

The lawyers for LBC have ensured anything which can be said for LBC in respect of the two Code provisions will be. The consolation for non-lawyers in this case is the sympathy one must have for the lawyers who had (presumably) to listen repeatedly to the recording of their client's show in formulating this response.

It is clear that LBC has had to rely on the callers to provide evidence of balance which was otherwise missing in the broadcast.

The LBC lawyers have done a thorough job of the required exercise and, in my view, Ofcom was going to struggle to uphold a complaint of the two Code Rules.]


Decision

The Communications Act 2003 places a statutory duty on Ofcom to ensure that broadcasters apply generally accepted standards so that the public is adequately protected from harmful material. In applying this rule Ofcom must ensure an appropriate level of freedom of expression as set out in Article 10 of the European Convention on Human Rights. This is in terms of both the broadcaster’s right to impart information and ideas and the audience’s right to receive them.

Ofcom must therefore seek an appropriate balance between ensuring members of the public are protected from material which may be considered harmful on the one hand and the broadcaster’s right to freedom of expression on the other.

As the complainants expressed concern, that the programme misleadingly suggested that the MMR vaccine was dangerous, thereby suggesting to parents that immunisation was not recommended nor a necessity, we firstly considered the programme with specific reference to Rule 2.2. This rule relates to protecting the public from material which may be harmful, by requiring the broadcaster to ensure that the portrayal of factual matters does not materially mislead the audience.


[Again, this is scene-setting. Ofcom is setting out its powers and how it will approach the case. It correctly identifies Coder Rule 2.2 as the most important provision.]


Rule 2.2

With reference to this rule Ofcom considered if the programme had given the overall impression to listeners that the MMR vaccine was dangerous and unnecessary and whether material harm might have been caused to the public as a result.


[Ofcom is setting out what it sees as the Code Rule 2.2 test in this particular instance. See that they have split it into two: the "overall impression" and the "material harm" tests. For a complaint to be upheld on Code 2.2 it would need to meet both these tests.]


Ofcom acknowledges that the focus of the debate was intended to be about a parent’s right to choose, based upon an informed decision, whether to have their child immunised. The presenter set out this argument clearly at the outset of the programme, recounting her personal experience when she chose not to immunise her daughter and with comments such as:

“…if as a human being you decide you do not want to give your child a vaccination, you should in a democracy, have the right to say no.”

Furthermore, Jeni Barnett restated this argument several times during the course of the hour long programme with statements such as:

“I want you to tell me why you think we have to have this measles jab..”
“It’s not my job to say to people ‘don’t do it’ it’s not my job to do any of that. But you’re allowed to have your say.”

“You’ve got to make an informed decision – your children will not be the same as anyone else’s.”

As Jeni Barnett had clearly set out her personal position at the start of the programme it was not unexpected that she would endorse the statements and motives of two mothers who had also elected not to immunise some, or all, of their children. Consequently the callers did make a number of unchallenged statements that suggested the MMR vaccination and immunisations in general were simply not necessary and could be dangerous to a child’s health.

For example, the first caller made the comments:

“It must be wrong to be putting toxins and poisonous material into a young baby’s body…live viruses that are cured in monkey’s kidneys. How can that be the right thing to do?”

And:

“I just think vaccination is a total abuse of the immune system.”

The other caller said :

“he [her son]...had the MMR, and then when he was three he was diagnosed with autism…my paediatrician was quite sure that it was the cause of the autism.”

And:

“I would never recommend having my children vaccinated…all my children who have never been vaccinated have been very very healthy.”

Also Jeni Barnett did not question the text messages and emails she received during the programme which put forward a similar anti-immunisation or MMR position, such as:

“…as well as not being a hundred per cent effective, they also contain cancer causing agents.”

“…gave my son MMR and then watched him shut down for a week as autism took hold…I live with guilt.”

“It’s all Government spin children don’t need the triple jab.”


[These comments are now hereby immortalised in an Official Document!]


In considering Rule 2.2, however, our decision was not based on whether the presenter should have challenged the callers or whether she should have exercised more caution in reading out texts and emails. Rather, it was based on whether, taken as a whole, the content of the programme would have left listeners with the overall impression that the MMR jab was dangerous thereby influencing parents not to immunise their children.

[This is the crucial passage. No sensible person listening to the broadcast would have not wanted some of the callers and texts to be challenged; but this is NOT the question which Ofcom is asking itself. In view of the text of Code Rule 2.2, I am afraid I have to say Ofcom is righr to adopt this restricted approach.]


Ofcom is of the view that, on balance, the programme did include sufficient and important opposing arguments to inform listeners of the case for immunisation and so served to dispel concerns about the dangers of the vaccine and ensure overall that the information was not materially misleading or harmful.

[This is where one can form a different view to Ofcom, because it appears that the "balance" which saves the broadcast was not intended by the presenter or by LBC. The callers that put contrary arguments were presumably not set up to do so. In my view, left to itself, the broadcast may have been held to be in breach.]

[Ofcom now set out the extent of this "balance".]


Indeed four of the six callers given air-time during the hour long programme presented an opposing view to Jeni Barnett. Importantly, two of these four callers were health professionals, a GP and a nurse, who drew upon their experience of working closely with young children and the Government recommended immunisation schedule. The doctor in particular was given a considerable amount of air time, largely uninterrupted by the presenter, to explain the rationale for the MMR immunisation programme and the reasons why it was important to eradicate measles:

“All you need to do is meet one family whose normal child - they took the decision not to vaccinate their child - and they got measles and they got a devastating complication such as inflammation of the brain…or they died, and your opinion changes.”

“Measles is the one that can really does kill…it’s just because the numbers in Western Europe and the States and Australia are lower that we don’t see this so often.”

In addition the nurse criticised Jeni Barnett several times for being “irresponsible” and made comments such as:

“You should think about what you are doing on this programme. You are doing a lot of damage.”

She also presented the rationale for a national immunisation schedule:

“If you deny immunisation then you are denying health to your child and other children.”

Another caller reprimanded Jeni Barnett for reading out an anonymous email saying that vaccines contained “cancer causing agents” (see above) because it would “scare new mothers” and it was irresponsible to read out such a statement without the name of the person who had sent in the email. A further caller stated that all the medical experts he had heard on LBC previously had rejected the arguments against the MMR vaccine.

Further, on at least two occasions Jeni Barnett herself looked to redress the balance by commenting:

“…there isn’t a definitive answer. There is no absolute answer” and “as a parent you have to make a decision based on your own family history”.


[This was enough to make the show balanced, it would appear. But the following two paragraphs are very interesting.]


Broadcasters must exercise extreme caution when dealing with issues of public health where misinformation or misleading impression could cause actual or potential damage. It is extremely important that while broadcasters exercise their freedom of expression, they must ensure that any potentially harmful material is fully put in context. Broadcaster understandably wish to reflect discussions and debates that are taking place across the country, but in doing so, in areas of public health, they must not ignore the prevailing medical advice. In particular, while maintaining the right to freedom of expression, broadcasters need to be responsible and be aware of giving air to unfounded or unscientific views on matters of public health which may carry some weight.

[This paragraph will presumably be quoted by anyone making a complaint to Ofcom about such a programme in future.]


At times, it appeared that during this broadcast the presenter relied upon her anecdotal experience and was not adequately briefed on the wider public health issues and prevailing medical advice which this debate would undoubtedly also touch upon. For example, at times the schedule of other childhood immunisations were confused with the MMR triple vaccine schedule, and no reference at all was made to any current research contesting a link between autism and the MMR vaccine yet several anecdotal references were made supporting a link. Whilst this did not mean that the programme overall was materially misleading, and was therefore not in breach of Rule 2.2, in Ofcom’s opinion that it would have been preferable for the programme to have made some significant points clearer to listeners.

[This paragraph seems to me to be damning about the programme. In my view, given the wording of the Code Rules and the "balance" provided by the callers, this is as far as Ofcom really could have gone in this case in criticising the broadcast. In simple terms, Ofcom have held that the presentation in the broadcast was inadequate and unclear on significant points.]


In conclusion, however, Ofcom is of the view that on balance there were sufficient opposing arguments and challenges from contributors, including health professionals, to present the case for immunisation and that listeners would not have been materially misled by this broadcast. Therefore, Rule 2.2 was not breached.

[Sad, but Ofcom really had no choice; at least Ofcom were able to qualify their determination here with their comments on the quality of the broadcast.]


Rule 5.13

Rule 5.13 states that: “Broadcasters should not give undue prominence to the views and opinions of particular persons or bodies on matters of political or industrial controversy and matters relating to current public policy in all the programmes included in any service taken as a whole.”

[Again, Ofcom setting out the rule.]

Some complainants expressed concern that the way in which Jeni Barnett presented the discussion was not balanced and resulted in undue prominence of the anti-MMR position. We assessed these concerns with reference to Rule 5.13.

Rule 5.13 prohibits undue prominence being given to particular views on matters relating to current public policy on a local radio service such as LBC in the context of its output overall. Given that the very nature of speech based local radio services is to debate matters of interest to listeners within a certain locale, which inevitably may relate to current public policy, this requirement for impartiality for the local radio broadcaster is slightly different to that applied to broadcasters with national coverage.

Firstly, legislation in this area, which is therefore reflected in the rules in the Code, requires local radio stations to ensure that no undue prominence is given to views, on controversial matters. This is a separate and different concept to the requirement of due impartiality. Secondly, as Rule 5.13 makes clear, for this rule to be breached the broadcaster would have to demonstrate a “ significant [Ofcom’s emphasis] imbalance of views aired” across “ all [Ofcom’s emphasis] programming on a service dealing with the same or related issue within an appropriate period.”

In contrast, the rule of due impartiality for national radio broadcasters must be achieved within a programme or more than one programme of the same series only.

As set out above when considering Rule 2.2, Ofcom was of the opinion that the programme itself provided a balance of views which were both in support of, and also opposed to, the MMR vaccine and the immunisation schedule for children. Therefore Ofcom considered that across the programme there was not a significant imbalance of the views aired.

In conclusion, it is Ofcom’s view that the programme itself provided enough views to ensure that the programme provided balance overall and, therefore, no undue prominence and no breach of Rule 5.13.


[Ofcom is merely saying here that it cannot hold a breach of this alternative rule which applies only to local radio stations when it has not found a breach of Rule 2.2.]


Ofcom recognises that it is important for broadcasters to bring discussions about medical matters to an audience, and, that broadcasters should have the editorial freedom to present such matters as they wish provided that they comply with the Code. However, it is Ofcom’s view that broadcasters should exercise caution when dealing with medical matters where the issues are as controversial and scientifically based as the MMR vaccination. Whilst the broadcaster stated that the focus of this programme was about parental choice, not whether the MMR immunisation was good or bad, it was inevitable that such a discussion would evaluate the merits of immunisation or otherwise the issue of choice would not be relevant at all. Where such arguments are based on an understanding of the science and medicine, broadcasters should be aware of the potential dangers of causing harm.

[Again this paragraph may well be quoted in future complaints.]


It is also Ofcom’s view that the notion of avoiding undue prominence may include the presenter, as appropriate, paying due respect to callers putting forward a view with which he or she disagrees. For example, in this case the contributions of the two mothers who had not immunised their children were positively endorsed and appreciated by the presenter with comments such as “This is fascinating” and “Fantastic…I know I shouldn’t be biased…” In comparison, Jeni Barnett’s treatment of the nurse who criticised her handling of the topic was at times dismissive and impatient. In the context of Rule 5.13 therefore, broadcasters are advised to ensure that overall the tone towards, and treatment of, callers does not leave listeners with the impression that one particular view on a matter of political controversy or a matter relating to current public policy, is being given undue prominence.

[Again this appears to me damning, and it seems to go further than Ofcom needed to in not finding a breach of 5.13. The presenter's "dismissive and impatient" handling of criticism was, however, not enough for Ofcom to find a breach.]


Not in Breach of Rules 2.2 and 5.13

[There is sometimes more to a case report than its headline determination!]


Comments Moderation

No attacks on Ofcom, LBC, or the presenter, will be approved.

Friday, 19 June 2009

George Orwell and Night Jack

I suspect George Orwell would have been a public service Blogger, someone who blogs about their experiences as a front-line public servant.

This is not just because of the often overlooked fact that he wrote under a pseudonym.

When Orwell served in the Indian Imperial Police in Burma in the 1920s - yes, George Orwell's professional background was as a policeman - his contemporaries remember him going off to his room in the evening to write and read instead of going down the bar.

He did not publish anything whilst in service, but when he returned to England he converted his direct professional experiences into two of the most powerful essays in the English language: A Hanging , about what it meant to put a man to death, and Shooting An Elephant, explaining how it felt to be a police officer facing, and giving in to, an expectant mob.

"In Moulmein, in lower Burma, I was hated by large numbers of people – the only time in my life that I have been important enough for this to happen to me. I was sub-divisional police officer of the town, and in an aimless, petty kind of way anti-European feeling was very bitter."

Orwell also wrote, again from direct experience, of what it meant to be in a Spike (the dire overnight shelter for the vulnerable). He then of course moved to writing episodic accounts of his explorations of poverty and civil war.

Indeed, until 1937 - and excepting a couple of, er, not good novels - Orwell's output (and literary income!) was consistent with that a diligent and insightful Blogger, and I think he would delight in the public service Bloggers of today.

I am sure he would have been strongly supportive of the first Orwell Prize for Blogging going to his fellow policeman Night Jack, for writing elegantly and knowingly about the real difficulties of public service, rather than one of the more famous political Bloggers.


(Originally the introduction to my Analysis of the Night Jack Privacy case.)

Singh's Defence v The Plethora

Just a quick note to say that the estimable Chris Kavanagh has now conducted the useful exercise of comparing the British Chiropractic Association's "Plethora" with my November 2008 summary of Simon Singh's Defence.

Thursday, 18 June 2009

The BCA's Worst Day

Today has not been a good day for the British Chiropractic Association.

The last gasp of their increasingly wonky media strategy - the release of the "plethora" after fifteen months - has been discredited in less than a single day.

If you have not looked at the Blogs already, see the legendary David Colquhoun's easy demolition of the claims for colic and the incomparable Gimpy on the BCA having no evidence that chiropractic can help with ear infections. And then look at the deeply scathing blogpost at Ministry of Truth.

[Add: Evidence Matters subjects the BCA's claims on asthma to devastating bombardment.]

No wonder Phil Plait in America is just shaking his head at the inanity of the BCA.

And this humiliation is in the wider context of the Quacklash of activists and bloggers, hundreds of complaints to Tradings Standards, the strange (and possibly legally unsound) maneuvering by the General Chiropractic Council, and of course the wonderful Sense About Science campaign, which now has over 10,000 signatures.

But it was a point picked up by another Blogger which means that this case could yet take a more interesting turn.

The Lay Scientist Blog noticed a most curious discrepancy.

The BCA quote a Cochrane Review (no less) as saying:

"There was weak evidence to support the use of [chiropractic]."

But according to the Lay Scientist, the original statement is:

"There was weak evidence to support the use of hypnosis, psychotherapy, acupuncture and chiropractic but it was provided in each case by single small trials, some of dubious methodological rigour."

(Emphasis added.)

If this is correct, there can be no doubt that (a) such deletions would be deliberate and (b) the edited quotation would be likely to give a different impression to the original.

However, I will leave you to draw your own conclusion as to what the motives could have been behind this apparent "sexing-up" of the original quotation. I just hope that this dossier took more than 45 minutes to compile.

That said, and more gravely, I do not think those responsible for this editing - and for approving this statement for publication - can now be looking forward to any cross-examination on how this discrepancy came about, regardless of whether Simon Singh wins his appeal on meaning.

Generally, it is obvious there is now no good way out for the BCA in this awful litigation.

Their least bad outcome would be to drop the case now, relying on their "vindication" at the preliminary hearing, and suffering the current ridicule.

Their worst outcome would be to lose the case.

I have always maintained that this case should never have been brought; but it is simply not for me to call on the BCA to drop it.

Though, of course, it is never too late to make a good decision.

Night Jack And Privacy: A Case Analysis

I analyse below the unwelcome and depressing English High Court decision of The Author Of A Blog vs Times Newspapers Limited.

I have done this in the form of setting out the judgment of Mr Justice Eady in full with my commentary in [brackets].

All you need to know before we start is that English privacy law is relatively new and consists (in my view) of two elements. The claimant has to establish (a) an expectation of private space and (b) that the defendant's interference with that private space is unlawful, disproportionate, and not in the public interest.


THE AUTHOR OF A BLOG
Claimant

- and -

TIMES NEWSPAPERS LIMITED
Defendant


Hearing date: 4 June 2009


[The first thing to note is the awkward "The Author of a Blog" rather than "Blogger". As we will see the judge uses the word Blogger with difficulty in the judgment below. Clearly, Blog is a noun, not a verb.]


On 4 June 2009 I heard an application in private whereby the Claimant, who is the author of a blog known as "Night Jack", sought an interim injunction to restrain Times Newspapers Ltd from publishing any information that would or might lead to his identification as the person responsible for that blog. An undertaking had been given on 28 May 2009 that such information would not be published pending the outcome. I indicated at the conclusion that I would refuse the injunction but, in the meantime, I granted temporary cover to restrain publication until the handing down of the judgment, when the matter could be considered afresh if need be.

[Here, note it is a reserved judgment (in contrast with the Singh ruling). What this paragraph means is that an "interim injunction" having temporary effect was in place until the legal case could be decided. The legal background of this case is whether that interim judgment could now be converted into a permanent injunction.]


The Claimant's case, advanced on his behalf by Mr Tomlinson QC, is based both on the traditional law of confidence and upon the more recently developed doctrine acknowledging an independent cause of action arising from the improper disclosure of private information: see e.g. Campbell v MGN Ltd [2004] 2 AC 457 and McKennitt v Ash [2008] QB 73. It is suggested that The Times is subject to an enforceable duty of confidence not to reveal the Claimant's identity as the author of the blog; alternatively, that he has a reasonable expectation of privacy in respect of that information, in respect of which there is no countervailing public interest justification for its publication.

[Here the judge sets out this is both a confidentiality case as well as a privacy one. English privacy law has, in effect, developed out of confidentiality, supercharged by Article 8 of the ECHR and the Human Rights Act 1998. The key distinction is whether there is evidence of a breach of confidence; if not, it falls to be dealt with as a privacy case. The Naomi Campbell and McKennit cases are the leading two cases on privacy law.]


It was asserted in the Claimant's skeleton for the hearing of 28 May that his identity had been disclosed to The Times in breach of confidence. By the time the matter came before me, on the other hand, Mr Tomlinson was prepared to proceed on the basis that the evidence relied upon from Mr Patrick Foster, the relevant journalist, was correct; that is to say, that he had been able to arrive at the identification by a process of deduction and detective work, mainly using information available on the Internet.

[This is significant. Had the claimant been able to show there was or must have been a breach of confidence - say, by a colleague - then his legal position would have been far stronger. But the witness statement contained evidence which led to the claimant's barrister dropping this defence: it appears the journalist established the identity of the claimant without a breach of confidence. From this point the claimant has to be able to rely on privacy or nothing.]


Mr Tomlinson submitted that the thousands of regular bloggers who communicate nowadays via the Internet, under a cloak of anonymity, would be horrified to think that the law would do nothing to protect their anonymity if someone carried out the necessary detective work and sought to unmask them. That may be true. I suspect that some would be very concerned and others less so. Be that as it may, Mr Tomlinson needs to demonstrate that there would be a legally enforceable right to maintain anonymity, in the absence of a genuine breach of confidence, by suppressing the fruits of detective work such as that carried out by Mr Foster.

[Here the judge perhaps shows his view of Bloggers. But - legally - more important is his view that the case revolves around a journalist who has independently worked out the identity of the claimant and not because anyone breached a duty of confidence.]


Mr Tomlinson's primary argument was simply that the Claimant wished to remain anonymous and has taken steps to preserve his anonymity accordingly. He says that the Defendant is fully aware of the Claimant's wish and that, in the circumstances, there is no justification for "unmasking" him, as he is entitled to keep his identity as the author of the blog private and confidential. Indeed, it is submitted as a general proposition that "there is a public interest in preserving the anonymity of bloggers".

[This is the claimant's argument that he had a realistic expectation of privacy.]


It is necessary to examine the matter more closely, however, since the mere fact that the Claimant wishes to remain anonymous does not mean either that he has a reasonable expectation of doing so or that The Times is under an enforceable obligation to him in that respect.

[Here the judge is accepting the crucial issue is this expectation of privacy. He is also distinguishing between the concepts of anonymity and privacy.]


It is well known that the court nowadays adopts a two stage approach, when addressing claims based upon the publication of allegedly private information in contravention of Article 8 of the European Convention on Human Rights and Fundamental Freedoms. One must ask, first, whether the claimant had a reasonable expectation of privacy in relation to the particular information in question and, if so, then move to the second stage of enquiring whether there is some countervailing public interest such as to justify overriding that prima facie right. Whereas Mr Tomlinson focused most of his attention upon the second stage, and rather took it for granted that the stage one test had been passed, Mr White QC made it clear on behalf of The Times that it was most certainly not accepted that this Claimant had a reasonable expectation of maintaining his anonymity.

[The judge now sets out the test for a privacy action, and it is now clear that it will be on this point that he will decide the case. Because of this, I respectfully suggest that the judge mischaracterises the interference issue. I do not think that public interest in enough; my view is that it is also needs to have a lawful basis (ie no "black arts") and be no further than necessary. It doesn't matter, however, as the case is not decided on the interference point. He also states that the claimant's barrister should have concentrated on the expectation point.]


The test is an objective one (both for privacy and breach of confidence) and the importance of that has recently been underlined by the Court of Appeal in Napier v Pressdram Ltd [2009] EWCA Civ 443 at [42], where Toulson LJ commented:

" … For a duty of confidentiality to be owed (other than under a contract or statute), the information in question must be of a nature and obtained in circumstances such that any reasonable person in the position of the recipient ought to recognise that it should be treated as confidential. As Cross J observed in Printers and Finishers Limited v Holloway [1965] RPC 239, 256, the law would defeat its own object if it seeks to enforce in this field standards which would be rejected by the ordinary person. Freedom to report the truth is a precious thing both for the liberty of the individual (the libertarian principle) and for the sake of wider society (the democratic principle), and it would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a reasonable person in his position would not perceive to be confidential."


[The judge now refers to a very recent case indeed, where a solicitor failed in a confidentiality action against Private Eye. In that case, the court found against the solicitor: see recent Eyes for details.

However, views may differ in this case whether a reasonable person would indeed form such a view. It is of course the same reasonable person that, say, takes articles in the Saturday edition of the Guardian to mean "the plainest allegation of dishonesty and indeed...accuses [the claimant] of thoroughly disreputable conduct".]


Hitherto, in those cases which have come before the courts where the claimant relied successfully upon the recently developed cause of action, in the absence of any pre-existing relationship of confidence, the information in question has been of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. I am not aware of a case in which, as here, there is a significant public element in the information sought to be restricted. I have in mind, of course, that what the Claimant seeks to withhold from scrutiny is the identity of the person communicating to the public through his blog. Those who wish to hold forth to the public by this means often take steps to disguise their authorship, but it is in my judgment a significantly further step to argue, if others are able to deduce their identity, that they should be restrained by law from revealing it.

[This is where the claimant really hits a problem. The judge just cannot see how the cases so far decided mean that privacy can protect someone who is actually publishing to the world. Also note the awkward "communicating to the public through his blog" instead of simply "blogging".]


Mr White drew my attention to the case of Mahmood v Galloway [2006] EMLR 26. Mr Tomlinson challenged him to identify any useful ratio decidendi from this case, to which Mr White responded by advancing the proposition that a journalist who writes under a pseudonym for the purpose of functioning more effectively in his undercover work has no reasonable expectation of privacy in respect of his identity and, in particular, in relation to photographs which would, when published widely, reveal his identity. It seems to me that Mr White's interpretation is correct and, although the decision is not strictly binding upon me, the reasoning of Mitting J is nonetheless, if I may respectfully say so, entirely persuasive. Although the Claimant here is not a journalist, the function he performs via his blog is closely analogous. I see no greater justification for a reasonable expectation of anonymity in this case than in that concerning Mr Mahmood.

[And this is where the point is beyond repair for the claimant. The claimant in Mahmood v Galloway lost on privacy too. Note now we have "the function he performs via his blog" to mean "blogging". Had the claimant succeeded in this case it would, in the judges view, be inconsistent with another case (and indeed one decided by another judge).]


I consider that the Claimant fails at stage one, because blogging is essentially a public rather than a private activity.

[There we have it; the claimant's case has collapsed. I do not think it had to be this way; it could have been decided differently - and some lawyers would agree with me; but I am afraid the judge's reasoning so far is not misconceived, even if I differ.]


When I move, therefore, to the second stage, the exercise becomes somewhat artificial. That is because I have to proceed on the hypothesis that one or more public interest considerations have to be identified which would be capable of outweighing the Claimant's right to privacy – when I have already held that no such right exists. Nevertheless, I should address the arguments raised. It is not always easy to come to a conclusion on matters of public interest on an application for an interim injunction, as Mitting J observed in Mahmood at [24], but it cannot be ignored since s.12 of the Human Rights Act 1998 requires that an overall view should be formed as to the likelihood of the Claimant succeeding at trial. Such a judgment has to be made almost always on an incomplete picture of the available evidence. But that is what Parliament intended.

[I am not so impressed by the judge's reasoning here and, as he says, it is an "artificial" going through the motions.]


At this stage it is necessary to address the background circumstances in more detail. The Claimant is a serving detective constable and his blog mostly deals with his police work and his opinions on a number of social and political issues relating to the police and the administration of justice. He expresses strong opinions about these matters including on subjects of political controversy. In particular, he has criticised a number of ministers. In so far as he has written about cases of which he has obtained direct knowledge through his police duties, it is said that he has taken particular care to disguise the information. Moreover, he has tried to make it a practice not to comment on cases which were pending or "active" within the meaning of the Contempt of Court Act 1981. Nor has he flouted any court reporting restrictions. Whether he has always succeeded in achieving these aims may be a matter of debate. Such an exercise will often involve fine questions of judgment.

[This is where the claimant perhaps really lost the case. It becomes clear the judge does not like the fact situation. To the comment "Such an exercise will often involve fine questions of judgment" one could well add astrology and other forms of imprecise prediction of how courts will decide questions...]


Nevertheless, on the basis of the evidence before me, it has always been apparent that if his employing police authority became aware (as it now has) that one of its officers was communicating information and opinions to the public at large about the conduct of police operations, there would be a significant risk of disciplinary action. This is recognised by the Claimant and is reflected in the evidence of his solicitor. Indeed, this would appear to be one of the main reasons why he was keen from the outset to maintain his anonymity.

[It is interesting here that there is now not even any circumlocutions for "blogging". The claimant is now as much a publisher as a newspaper.]


My attention was drawn to the relevant Police (Conduct) Regulations. Those governing his conduct prior to 1 December 2008 were to be found in SI 2004 No 645 and those applicable subsequently in SI 2008 No 2864. The wording of the provisions differs somewhat, but perhaps not to any material extent. The relevant passages prior to 1 December 2008 were contained in Schedule 1 to the 2004 Regulations under the heading "Code of Conduct":

"Confidentiality
7. Information which comes into the possession of the police should be treated as confidential. It should not be used for personal benefit and nor should it be divulged to other parties except in the proper course of police duty. Similarly, officers should respect, as confidential, information about force policy and operations unless authorised to disclose it in the course of their duties.

General Conduct
12. Whether on or off duty, police officers should not behave in a way which is likely to bring discredit upon the police service."
Under the more recent 2008 Regulations, the corresponding wording is to be found under the heading "Standards of Professional Behaviour":

"Confidentiality
Police officers treat information with respect and access or disclose it only in the proper course of police duties.

Discreditable Conduct
Police officers behave in a manner which does not discredit the police service or undermine public confidence in it, whether on or off duty."
It may be said that the wording is in some respects woolly and imprecise. After all, it clearly cannot be intended that police officers have to treat all information "with respect" or be restrained so as not to disclose it except "in the proper course of police duties". There must be some limit. Presumably what is intended is that they should show such restraint in relation to information acquired in the course of, and connected with, their police duties. What would appear to be tolerably clear, however, is that the regulation would certainly apply to information obtained by a police officer about cases on which he is working or has in the past been engaged. It is obvious that the regulations should not be read subject to a proviso such that information of this kind may be "disclosed" or "divulged" if the officer does it anonymously or in his spare time.


[This is the sound of the book being thrown forcefully at claimant. And, if this approach is correct in repsect of inteference (rather than the expectation of public space), then it has obvious implications for any public servant under a code of practice.]


Mr Tomlinson argues that if The Times were to reveal the Claimant's identity this would not only infringe his rights under Article 8 but also those under Article 10, since it would inhibit his right to impart information and ideas to the general public. It has not been argued, however, that the statutory restrictions on police officers disclosing information are not "necessary", not "proportionate", or not "prescribed by law" (i.e. that they are not compatible with the exceptions recognised in Article 10(2) of the Convention).

[I agree here with the claimant's barrister. The claimant in my view has Article 10 rights for self-expression.]


Against this background, Mr White submits that the obligations contained in the two relevant sets of regulations are imposed in the public interest to maintain appropriate standards of conduct in the police service. It is said that there is a corresponding public interest in the disclosure of any significant non-compliance by a police officer with his obligations under the statutory code.

Moreover, it is argued that there is a general public law duty on police officers not to reveal information obtained in the course of a police investigation otherwise than for the purpose of performing public duties: see e.g. R v Chief Constable of the North Wales Police, ex parte Thorpe [1999] QB 396, 409-410, 415, 429. Failure to comply with that duty would also, it is said, justify public exposure. There is much force in the argument that any wrongdoing by a public servant (save perhaps in trivial circumstances) is a matter which can legitimately be drawn to the attention of the public by journalists. There is a growing trend towards openness and transparency in such matters.

[This is also specific to serving police officers but again can have wider implications]


Although Mr Tomlinson rather dismissed it, a further argument was advanced by Mr White to the effect that the Claimant's writings, being "overtly political and highly critical of central and local policing strategies", are such that the public is entitled to receive information about the author, so as to enable it to make an assessment of the weight and authority to be attached to them. Mr Tomlinson submitted that all the Claimant's readers need to know is that the author is a serving police officer. I disagree. It is very often useful, in assessing the value of an opinion or argument, to know its source. As was pointed out, for example, by Lord Nicholls in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205A-B, one may wish to apply greater caution or scepticism in the case of a person with "an axe to grind". For so long as there is anonymity, it would obviously be difficult to make any such assessment. More generally, when making a judgment as to the value of comments made about police affairs by "insiders", it may sometimes help to know how experienced or senior the commentator is.

[Here I respectfully think the judge is erring. In particular, I suggest the comment "all the Claimant's readers need to know is that the author is a serving police officer. I disagree. It is very often useful, in assessing the value of an opinion or argument, to know its source." is misconceived and contrary to the general policy of the courts in protecting journalistic sources.]


Mr Tomlinson also submits that there is no public interest in the disclosure of the Claimant's identity and (echoing the language used by the European Court of Human Rights in Von Hannover v Germany (2005) 40 EHRR 1) that the publication of such information would make no "contribution to a debate of general interest".

[Ditto here, I also think the claimant's identity is an irrelevant detail.]


If it were the case that the Defendant's Article 10 right of freedom of expression here is indeed conditional upon establishing a public interest (which I do not believe it is), it would seem to me quite legitimate for the public to be told who it was who was choosing to make, in some instances, quite serious criticisms of police activities and, if it be the case, that frequent infringements of police discipline regulations were taking place. Correspondingly, if the allegations and observations made by the Claimant through his blog were themselves contributing to a debate of general interest, as he undoubtedly thinks they are, I cannot see why the proposed publication in The Times would not be worthy of the same classification.

Much of what the Claimant publishes could be characterised as "political speech", since he criticises and ridicules a number of senior politicians. It is well recognised both here and in Strasbourg that considerable value must be attached to a citizen's right to express his opinions on matters of this kind. Nevertheless, constraints are placed upon the rights of civil servants and police officers to become involved in party political debate. Some such restraint may be regarded as legitimate and proportionate for reasons which are fairly obvious; namely, that for some people the discharge of public duties requires them to stand aside from the cut and thrust of such debate. Such constraints are recognised as appropriate, for example, for judges, teachers and civil servants. I sought assistance from counsel as to the precise nature of the restraints placed on police officers in this respect, but they were unable to provide much information save to the extent that it was accepted that police officers are not permitted to stand for elected office.


[By now, it is clear that the judge is unimpressed by the Blogger being a serving policeman.]


Even though the Claimant believes that he was doing nothing wrong, he suspected that as and when his employing authority discovered his activities, he might be subjected to disciplinary action or, at least, some kind of "pressure" to limit the use of his freedom of expression.

I have drawn attention to the wording of the regulations relating to an officer's obligation of confidentiality in relation to "information", but there is also the more general prohibition against "discreditable conduct". This is a notoriously flexible concept, of course, but it might well be thought that some of the Claimant's publications would "discredit the police service or undermine public confidence in it". It would not be appropriate for me to come to any conclusion about that, but I recognise that his superiors might, at least, take that view.


[I do not think this is correct either. In my respectful view, I think the court did not need to raise this issue.]


It is clear from his own evidence that one of the reasons why the Claimant originally sought the court's assistance to maintain his anonymity was to protect him against disciplinary measures being brought to bear. His solicitor said in his witness statement that:

"26. Publication of the identification of the identity [sic] of the Claimant as the author of the Blog would be likely to cause him significant damage.
27. Firstly, while it appears to be true that the Force has been notified of his identity by the Defendants (in breach of confidence), the Claimant believes that if the matter is subject to publicity in the media this could lead to more serious disciplinary charges being brought – on the basis that the publicity itself might be regarded as damaging to the force and having brought it into disrepute.
28. Secondly, the Claimant has no reason to believe that his identity as the author of the Blog is known beyond his immediate supervisor and the Professional Standards Department of the Force. If this became now [sic] beyond this was group [sic], the Claimant considers that there would be inevitable disruption to his work as a detective. In particular, the Claimant is concerned that his identification as the author of the Blog might have an adverse effect on his working relationships and could make it very difficult for him to carry on his job. Some of his colleagues may be hostile to the Blog and may have objections to working with him as a result. Moreover, if his picture is published, it will also make it far harder for him to undertake the surveillance and informant handling work for which he is trained."


[I here feel very sorry for the claimant's solicitor. The "Sics" are unnecessary and the court could have summarised this evidence as with the other evidence in this judgment. If the "Sics" show anything, it is that the claimant's case was prepared at speed by a junior lawyer; it is a signal that the claimant's legal case was badly resourced.

On the more substantive points, I think these are good points for the claimant to make and I could imagine another judge accepting them.]


As he points out, his identity has been revealed to the police service by the Defendant. Even if this had not happened, however, I would agree with Mr White's observation that any such justification for seeking an injunction would be "unattractive", to say the least. I do not accept that it is part of the court's function to protect police officers who are, or think they may be, acting in breach of police discipline regulations from coming to the attention of their superiors (whose task it is to make judgments about such matters, at least in the first instance).

[The "unattractive" comment now demonstrates that the judge is not impressed by the fact situation in this case.]


An alternative argument advanced by Mr Tomlinson is founded on the fact that now, for better or worse, the police authority does know about the Claimant's identity. In those circumstances, he suggests, there is no need for the information to be released more widely (i.e. to the readership of The Times). I do not accept that this necessarily follows. It seems to me that the public is entitled to know how police officers behave and the newspaper's readers would be entitled to come to their own conclusions about whether it is desirable for officers to communicate such matters publicly (whether there is an infringement of the disciplinary regulations or not). Of course, generally speaking, there would be no reason to publicise genuinely private matters about police officers, such as their domestic arrangements or personal relationships, but blogging is not a wholly private activity (as I have already noted in the context of addressing the arguments at stage one).

[I think this is a very powerful argument and I am unconvinced by the judge's reasoning to the contrary.]


Mr Tomlinson sought to draw a distinction between the Claimant's police duties and what he does in his own spare time "off duty". That is nevertheless, in the context of a police officer, a somewhat hazy distinction. It is clear, for example, that police officers should not behave in a manner which brings discredit on the police force "whether on or off duty". Furthermore, the restraints upon disclosing confidential information are not qualified by any wording to the effect that the information can be disclosed otherwise than "in the proper course of police duties" provided that the disclosure takes place when the officer is "off duty". That would make a nonsense of the regulatory requirements.

[Here the judge, again in my view, unconvincingly tries to render "hazy" a public/private distinction. However, the claimant did blog about his day job and so this probably was an argument for the sake of completeness by the claimant.]


I return briefly to the subject of photographs, to which the Claimant's solicitor referred in his witness statement. I was asked to bear in mind that rather blurred pictures of the Claimant have apparently from time to time appeared in the local press. I am not sure that this assists Mr White's argument, since the photographs are not relevant to the Claimant's identity as the author of the blog in question. On the other hand, his solicitor seems concerned about possible prejudice to undercover work. I would require more convincing evidence before considering the restraint of photographs, especially having regard to the Mahmood decision. There is no suggestion here of physical risk to the Claimant, as there was in that case.

[Well, the photographs have appeared. Again, the judge relies on the Mahmood case.]


As I have already noted, it is necessary for me to have in mind the provisions of s.12 of the Human Rights Act 1998, since the injunction sought would restrain The Times from exercising its right of freedom of expression. I have properly been reminded by both counsel of these provisions and, in all the circumstances, I have come to the conclusion that it is not likely that the Claimant would succeed at trial in restraining The Times from publishing his identity as the author of the blog, whether on grounds of traditional breach of confidence or by way of reliance upon the more recently developed remedies in respect of "private information".

[This is the judge going through the motions. There is a provision in the Human Rights Act where privacy has to be balanced against free expression. The judge in effect ticks the box.]


I conclude that he fails at stage one, in the sense that the information does not have about it the necessary "quality of confidence", as contemplated by Megarry V.-C. in Coco v A N Clark (Engineers) Ltd [1969] RPC 41; nor does it qualify as information in respect of which the Claimant has a reasonable expectation of privacy – essentially because blogging is a public activity. Furthermore, even if I were wrong about this, I consider that any such right of privacy on the Claimant's part would be likely to be outweighed at trial by a countervailing public interest in revealing that a particular police officer has been making these communications.

[The 1969 case is the seminal case in the law of confidence; but we already know the claimant has failed on this.

The crucial point is the next one, about the expectation of privacy.

The last point is, in my view, not strictly relevant as I think the (in lawyer speak) ratio of the case is about expectation.

In other words, should a blogger ever be able to show a reasonable expectation of privacy, and that the private element in blogging means that it is not an essentially public activity, then the reasoning on the interference with that privacy could well be different.]



In my view, public service Blogging is (was?) a public good, hence the award of the Orwell Prize to the claimant.

It was nice whilst it lasted.

However, this is a court decision on the expectation of legally-enforceable privacy in Blogging which was open to the court to make (even I think that point wrongly decided).

If that hurdle can be overcome, then whether it be interefered with easily is probably still up for grabs.



Comments Moderation

Please be polite about the parties and the court...

BCA v Singh: The BCA's "Third Update"

Late yesterday evening, the British Chiropractic Association at last released a list of research papers.

Other Bloggers will surely examine that list in more detail; I want quickly to draw attention to some statements in the covering statement (the "Update").

First, their reference to their lack of financial resources is, for me, sickening.

This is a knowing claimant in an English libel action, a form of litigation which almost uniquely throws a terrifying costs burden on a defendant, in this case a private individual and journalist. They did not need to do this; and for them to now implicitly plead poverty is markedly to their discredit.

But the most striking assertion in the Update is the statement that the BCA had no wish for its dispute with Simon Singh to "end up in the courtroom".

But to end up in a courtroom is a natural consequence of bringing a legal claim.


Unless the claim is settled or abandoned, the courtroom experience is actually what happens to legal claims.

I suspect they indeed did not wish for this case to end up in a courtroom. They undoubtedly expected for Simon Singh to just capitulate.

They must have been startled when it became clear that Simon Singh was not going to settle, despite the horror of the costs risks involved.

One should only ever threaten litigation if one can go through with it; it seems that the BCA is now suffering from not thinking through the consequences of their actions.

As readers of this Blog will know, I did try and tell them this last August:

"A misconceived libel action can be an incredible financial and reputational disaster of the very first order...

"Litigation is rarely the only course of action. However, bad decisions to litigate can arise when the other options are either not properly set out or considered."


Another striking feature of the Update regards timing.

The original article was published in April 2008; it has therefore taken the BCA some fifteen months to publish this list of references, and then only in response to an incredible internet campaign.

There is no good reason, and - in my view - certainly no legal reason, why there was any delay in doing this.

Indeed, one wonders whether these references were even known to the BCA until late in the litigation.

They are certainly not listed in the original Happy Families leaflet, and the BCA iself states that the list was sent to Dr Singh on 3 November 2008.

There is no explanation for this delay, and the circumstances suggest that many of these references only became known to the BCA once Simon Singh had put them to task when he decided to defend his case.

In passing, I also note that there is no mention of The Guardian's offer of a right to reply. This omission would have a misleading effect on someone reading this Update who was otherwise unaware of this significant opportunity.

Overall, the content of this latest Update is disappointing. As with the previous updates it shows a sad lack of self-awareness by the BCA that bringing a libel case was never an appropriate way to deal with Simon Singh's criticisms.

It was, and continues to be, both a tactical and strategic mistake by the BCA.

And they seem to want to have credit for now publishing supporting material which (had they had it) would have simply been the right thing to have done in the very first place.

Other Bloggers will now undoubtedly assess this "plethora" of evidence.

But the covering Update is the strong evidence that the BCA's libel case was misconceived and ill-thought through right from the beginning.

I fear they still don't get this.

Wednesday, 17 June 2009

BCA v Singh: The Plethora?

The British Chiropractic Association have just issued this document, containing a list of their research papers, as well as yet another attempt by them to justify this misconceived legal action.

Sunday, 14 June 2009

Jack of Kent's Week - 14 June 2009

I have not had much time for Blogging this week. So in this weekly round-up there is a bunch of stuff that would otherwise have become Blogposts.

British Chiropractic Association v Simon Singh

This week saw public statements by both parties.

Simon Singh surveyed the adverse effect libel law has on science and journalism in the Times Higher Education Supplement.

For the BCA, their Vice President Richard Brown attempts to defend chiropractic generally and the BCA's libel case in particular in both the New Scientist and in Pulse (registration required).

An interesting digest and synthesis of the case so far is at the Lightbucket Blog.

The, Er, Unofficial Transcript Of The Preliminary Hearing

The skeptic satirist Crispian Jago (with the help of the eminent court reporter Monty Python) provides a wonderful and hilarious transcript of the preliminary hearing, which Ben Goldacre rightly described on Twitter as "surprisingly clear and easy to follow".

Crispian's work brings me back to what got me interested in the relationship between skepticism and the law in the first place: the witchcraft trials of the early modern period. Now nudged, I may Blog more about this fascinating topic, especially as elsewhere in the world there still are people being tried and punished as "witches".

Beyond the Quacklash

Yesterday I set out on this Blog my thoughts on the Quacklash which is currently taking place against UK chiropractors.

Le Canard Noir, however, has redfined this on Twitter as the "sudden recoil of Internet action against quacks who resort to legal methods to answer criticism".

I think he must be right; my Blogpost concentrated on the legal and regulatory aspects of the phenomemon (which is not surprising given my own interests), but those aspects are part of a wider internet-based action.

I gratefully accept and endorse his definition.

One comment suggested that the adverse ASA determination was the significant factor. That may be correct, but what impressed me was the sheer speed with which that was analysed and exploited (and Kudos on this in particular to Zeno).

I think that without the ASA determination there would have been a similar bout of activity, but without this one particular weapon.

Homeopathy Awareness Week

Speaking of the wise old duck Le Canard Noir, he must be congratulated for his sterling work in promoting Homeopathy Awareness Week (HAW), which starts today.

The homeopaths must be hoping that it does not turn out like the ill-fated Chiropractic Awareness Week.

In any case, the efforts of Le Canard Noir have resulted in a pleasingly high Google hit for his site.

Crispian Jago's satirical take on HAW is here and a great skeptical post on homeopathy and hay fever is here

The Implications Of Spotify

This week I discovered Spotify, the music industry's attempt to undercut peer-to-peer file sharing by providing free streamed music.

An interesting article on all this is here (hat tip to Lawks O'Lawdy).

Long term readers of this Blog will remember that, before misconceived CAM libel cases dominated my Blog, I have an interest in the intellectual property rights of music.

In my Blogpost last October, I argued that making money out of recorded music is a passing fad, a mere hundred year or so blip in the history of music.

I still think this is the case. If, to (mis)use the phrase of the great Lawrence Lessig, there is a celestial jukebox where music (and films and indeed anything which can be converted into electronic data) can be streamed for free and on demand, why would anyone pay to download it into their hard drive?

Indeed, will downloading join the "disk in a box" as something rather cumbersome we used to do?

Let me know what you think: I plan to return to this topic, and especially its implications for intellectual property rights, soon.

Recommended Blog

I have been a big fan for some time of Dr Aust's Spleen.

Those who follow UK Bad Science Blogs will already know this insightful, well-written, and usually curmudgeonly site; but what impresses me is the ease with which Dr Aust can also deal with any legal issues as they arise.

An expert Blogger is one thing, but one who shines useful light on other areas as he or she goes along is rare.

One just wishes Dr Aust would Blog more often...

Saturday, 13 June 2009

The Quacklash - Causes And Effects

The British chiropractic profession is now under intense regulatory scrutiny, and I think the strain is beginning to show.

This significant phenomenon really deserves its own name, and in view of its reactive origin, I will dub it the Quacklash.

This Blogpost is an exploration of the causes and effects of this Quacklash.


The Causes Of The Quacklash

The primary cause of this anxious scrutiny is clear.

It is a reaction of a number of activists and Bloggers (though not me) to the misconceived libel case brought by the British Chiropractic Association against Simon Singh.

Amongst the Bloggers involved in this frenzy of activity are Zeno and JDC325, though there are many others.

And earlier today the Blogger Adventures In Nonsense revealed how he went about reporting 500 chiropractors to Trading Standards and the General Chiropractic Council.

However, it really should not be a surprise to the chiropractic profession that they are under regulatory obligations.

In particular, they should be aware of three main sources of regulatory oversight:

1. chiropractors are a regulated profession, and so the prospect of complaints to the appropriate regulatory body are an necessary aspect of being in such a regulated profession;

2. chiropractors are also, in my view, traders under the Unfair Commercial Practices Regulations, and so they also face the prospect of interventions by Trading Standards; and

3. chiropractors advertise, and so - as is catalogued on the Lay Scientist site - they can be held to strict standards in their advertising.

Chiropractors surely should not be afraid of these regulatory regimes. No chiropractor wants to be in breach of their professional standards, to be adopting unfair commercial practices, and to be using misleading advertising.

However, many Bloggers and activists contend that chiropractors are indeed in breach of their regulatory duties and have made complaints to all the appropriate bodies.

Why this attention? Why is so much time and effort being devoted to the chiropractic profession rather than other complementary and alternative health practitioners?

Adventures In Nonsense eloquently provides his answer on his Blog:

"For some time, chiropractic has managed to get away with being the acceptable face of alternative medicine. With some evidence to show that it helps with lower back pain, and many chiropractors only using the therapy for this purpose, it was seen by many as a legitimate therapy and largely escaped criticism from sceptics.

"That all changed when the BCA decided to sue Simon Singh for libel. In a fine example of the Streisand effect, all the energy usually reserved for criticising homeopaths and reiki healers was redirected straight at those chiropractors making wild and outlandish claims to treat colic, asthma and a host of other problems unrelated to the spine.

"With the BCA attempting to stifle debate over the bogus* claims made by Simon Singh, I was determined to do something."


I suspect all those making the complaints and reports have similar views to those of Adventures In Nonsense .


The Short Term Effect Of The Quacklash

The immediate response by the chiropractic profession to this regulatory scrutiny seems to be panic: websites have been pulled; material have been withdrawn; and worried chiropractors have been contacting their regulator and professional bodies.

Amongst all this, there has of course been the McTimoney Letter.

I blogged quickly on this bizarre letter earlier this week. One or two followers of this Blog then suggested the letter perhaps had a wider impact for the Simon Singh case than I had set out.

I have thought about this, but I am afraid the McTimoney Letter really does not have a great deal of evidential value. It is actually a silly and badly-worded document, which misunderstands the applicable law, and is startlingly alarmist.

There is - sadly - no reason to believe that the McTimoney Chiropractic Association actually have the slightest clue what they are talking about when they mention "claims for treatment that cannot be substantiated with chiropractic research."

Unless they set out the evidential basis for this assertion, then their apparent implicit admission that the treatments cannot be substantiated is actually of no more probative or forensic value than the British Chiropractic Association's (so far) empty claim to the contrary.

All because the McTimoney Letter contains something convenient for the skeptic position, it does not somehow make the MCA gallant skeptics-in-exile.

For me, the main value of the McTimoney Letter is that it shows that there is no common position for the chiropractic profession in respect of promoting chiropractic for various children's ailments. This itself badly hinders the BCA case, as the opinions of other chiropractors cannot be as easily brushed off as those outside the profession.

So perhaps a more significant example of panic is the letter of the British Chiropractic Association itself revealed on Gimpy's Blog.

This important BCA letter undoubtedly would not exist but for the Quacklash.

And, in my view, the notorious Happy Families Leaflet fails completely to comply with the guidance in this letter.

The BCA letter is also interesting in what it omits. The recent adverse ASA ruling was not just that there had been a breach of the Health and Beauty Products and Therapies provision, but also of the requirements for Substantiation and Truthfulness.

However, the BCA letter makes no mention of these other ASA requirements and, unless there are separate letters in respect of Substantiation and Truthfulness, I wonder whether this is a telling omission.


Overall, it appears websites have been taken down and materials withdrawn by chiropractors across the country; Trading Standards and the ASA are already looking into complaints; the General Chiropractic Council is being prompted into action; and the MCA issues its own zany letter whilst the BCA finally reminds its members of their regulatory obligations (albeit seemingly incompletely).

This is the immediate effect of Quacklash.


The Long Term Effect Of The Quacklash?

But I think there may be a longer term effect of the Quacklash.

Here I am not sure that Adventures In Nonsense is totally correct that this invocation of regulation is a Streisand effect, which I take to mean widespread repeating of suppressed material; nor is it perhaps the Sparticus effect, where there is a collective assertion of solidarity.

As a Geek born and brought up in the 1970s, I prefer to call it the Obi-Wan effect:

"If you strike me down, I shall become more powerful than you could possibly imagine."

(Yep, I can even remember going to Star Wars on its original release.)

Whenever a CAM practitioner - or professional body or regulator or indeed entire profession - now resorts to using legal devices (especially libel) to seemingly suppress criticism or deter scrutiny, they can expect in turn to be subjected to the same intense Quacklash that is being endured by chiropractors.

Every effort will be made to hold the perceived culprits to full regulatory account and their claims will be scrutinised to a severe degree.

My personal view is that laws and regulations should not be used as light-sabres.

Both sides should instead join in a non-legalistic enterprise of providing and assessing the relevant evidence.


That is why I have not made a single complaint, and I do not intend to do so.

However, I suspect that any future sabre-rattling of a threatened libel writ in the context of CAM and public health will be answered by another Quacklash.

I would prefer neither a threat of libel nor a Quacklash to occur; but I do wonder if the real prospect of the latter will deter anyone again resorting to the former.

After all, libel really has no place in scientific disputes.

free debate