Friday, 31 July 2009

Simon Singh Refused Permission To Appeal

The Court Office today confirmed to me that, in an Order sealed on 30 July 2009, the Court of Appeal has refused Simon Singh's application for permission to appeal (PTA).

Letters were sent to the parties yesterday (but there is a post strike in London).

Simon Singh needed PTA because permission to appeal had been refused at first instance at the preliminary hearing in May.

There are no further details yet, including reasons.

I understand that this refusal may now mean he can make an "oral renewal" before the Court of Appeal.

More information will be provided as it becomes available.


Simon Singh has just over SEVEN days to decide whether to ask for an oral renewal hearing, though the seven days commence on the service of notice of the decision on the parties (not the date it was made or any order was sealed).

(This right is unless the Court of Appeal has held that the application is totally without merit.)

See Rule 52.3(4) of the Civil Procedure Rules:

"...where the appeal court, without a hearing, refuses permission to appeal, the person seeking permission may request the decision to be reconsidered at a hearing."

Wednesday, 29 July 2009

Beware the Spinal Trap

Today Bloggers around the world have been invited by Sense About Science to reprint the original article by Simon Singh which is the basis of the current misconceived libel case from the now discredited British Chiropratic Association.

However, each of these reproductions will have a missing couple of sentences.

It was only these two sentences which the BCA complained about, but the Guardian pulled the whole article. The BCA have never objected to this.

Rather than republish the entire article, and by the wonder of Schedule 1 to the Defamation Act 1996, I hereby reproduce the two allegedly defamatory sentences:

"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

Bizarrely these sentences are actually now published on the BCA's own website, so it may be that the legal protection of the 1996 Act is unnecessay.

For the rest of the now-suppressed article, go to the site of Sense About Science.
free debate

Sunday, 26 July 2009

Desmond v Bower

I am a great fan of Tom Bower.

I once met him, hovering outside one of the courtrooms at the Royal Courts of Justice. I was a very junior lawyer and he was following a case I was working on.

It was not a libel case, and he was curious about certain basic points of law and procedure. He then signed for me a copy of his then just published biography about the personality central to the case.

Last week Tom Bower scored a fantastic libel victory - and he has now written a wonderful account of his defeat of the awful Richard Desmond.

But it is a technical point about the case which interests me here.

One of many interesting features about libel law is the elephant trap of pleaded meanings.

When a libel claim is threatened, and sometimes even when it is launched, the claimant "bigs up" the alleged meaning of the words complained of, to make the libel sound as serious as possible.

This is all very well - when the claim succeeds, or if the case settles.

However, if a claim is defeated, the "bigged-up" alleged meaning is still there - undefeated - to haunt the claimant.

Richard Desmond is now in this position.

The passage in Mr Bower's book about which Mr Desmond complained was:

"Rumours of a crisis [within Black's firm Hollinger] reached Richard Desmond, the owner of Express Newspapers in London. Desmond shared a printing plant with the Telegraph, which had led to an argument and a court case two years earlier between himself and Black. At the end of the trial the judge, Sir Andrew Morritt, had declared Desmond's evidence to be unreliable and found in Black's favour. Now Desmond ordered the Daily Express to report that Hollinger was '"facing its biggest crisis ever" after a credit facility was cancelled by its bankers'. Black was horrified … To protect himself and suppress the truth, he sued Desmond and the Express for libel. 'There is no cash crisis, nor any prospect of one,' he said in a short statement. To rapidly defuse the row, a mediator was appointed and Black and Desmond were told to go into a room and hammer out a deal … [Eventually] a settlement was agreed, accepting Black's insistence that there was no financial crisis. Victory against Desmond, a tough operator, vindicated Black's remorseless pursuit of challengers. Grinding his critics into the dust had never failed."

We often don't get pleaded meanings in case reports.

According to a Court of Appeal decision on excluding "similar fact" evidence of Desmond wrongly influencing editorial decisions (the evidence was eventually not excluded, and the rulings of Mr Justice Eady were overturned, and see the article on the evidence which remained excluded), Mr Desmond said the alleged defamatory meaning of the passage just quoted was:

"that motivated entirely by his personal desire to get revenge against Conrad Black for losing an earlier court battle with him, the Claimant had directly ordered the Editor of the Daily Express to run a horrifically damaging story about Mr Black's (and Hollinger's) financial dealings, wholly indifferent as to whether the story was in fact true or false, in a vindictive and completely unjustified attempt to damage Mr Black's reputation and that despite his reputation for being a tough businessman and the fact that the story was actually true, the Claimant allowed himself to be ground into the dust by Mr Black by accepting an abject and humiliating settlement."

Serious allegations indeed: just count the colourful words.

On this meaning, Mr Desmond lost.

His defeat does not, by itself, make the statements in the pleaded meaning necessarily true.

It may be that the jury held that Mr Bower "justified" the meaning alleged by Mr Desmond; or that the jury felt the passage in the book was not a libel in the first place; or that Bower's alternative pleaded meaning was true:

"(a) the Claimant, [who treated Express Newspapers as his personal vehicle to serve his own agenda,] dictated that Lord Black and Hollinger, against whom he bore a grudge, be the subject of damaging attacks, not caring about the truth and fairness of what was written; and
(b) the Claimant, having insisted upon Lord Black and Hollinger being attacked by Express Newspapers to satisfy his own animus against Lord Black, climbed down when in the presence of Lord Black at a mediation of Hollinger's libel claim, allowed himself to be taken in by Lord Black's assurances of the financial health of Hollinger and submitted his newspaper to a public settlement that gave vindication to Lord Black's pursuit of his critics."

The newspaper reports are simply not clear as to the basis of the jury's decision, and I was not in court.

But a strident plea of meaning like that of Mr Desmond is sometimes dangerous, especially when it being used for tactical purposes at the start of a case, and it can end up discrediting the claimant all the more.

So a bad day for Mr Desmond; and a good day for Mr Bower and investigative journalism.

Saturday, 25 July 2009

Two Types Of Intellectual Property Lawyer

The great H. L. Mencken defined Puritanism as "The haunting fear that someone, somewhere, may be happy".

(I once heard Paul Volcker say the same of central bankers.)

This wonderful quote came to mind when I was chatting recently with a friend who has become editor of a leading magazine, with both a news-stand and a web presence.

My friend was quite relaxed about bloggers and fansites copying and pasting material from the magazine's main website, as long as it was properly attributed. It increased awareness and it promoted the magazine's credibility; it was, in effect, free and finely-targeted advertising.

But the publishing house's lawyers hated it. The material is copyright and, gasp, it was being used without authorisation.

Their haunting fear was that someone, somewhere, may be using intellectual property without a licence.

I sympathised, for I know that mindset well. And, for me, it raises a fundamental problem.

What is the place of copyright of content in the copy-and-paste generation?

The sheer ease with which one can now copy, download, and store any digital information undermines the traditional approaches to copyright.

And, for the conventional intellectual property lawyer, such ease does not compute; it must be stopped; threatening (yawn) letters must be sent; ISPs threatened, damages (and of course costs) demanded.

However, I think there is a more sensible view.

The circulation of content for non-commercial use can be seen as the digital equivalent of "word of mouth". It is a good thing, as long as the content is properly attributed, for it promotes the client's reputation and profile.

Intellectual property law will always have an important role in dealing with unauthorised commercial exploitation of proprietary material, or when content is passed off as the work of another.

There may perhaps be loss of royalties; but there are huge gains to be offset against the advertising budget.

The fundamental question is whether overall there may be more traffic to the originating website or more "real-world" purchases of publications, CDs, and even downloads.

That can be a difficult commercial decision for the copyright owner; but it is one which really should not distorted by the artificial effect of zealous and anxious copyright lawyers.

Sunday, 19 July 2009

Libel and the Mathematicians

There is a great article in today's Observer by Nick Cohen on how even mathematicians feel libel chill.

Monday, 13 July 2009

Hello to Lionel R Milgrom

I would like to say a warm Hello to Lionel R Milgrom, who has greatly cheered me up.

I understand Dr Milgrom is well known commentator on complementary and alternative medicine, and in particular the application of modern scientific research to homeopathy.

What, however, has caught my eye was his response to the Ernst article in the recent British Medical Journal.

(I blogged on the Ernst article here; and the Ernst article is now available in full here - hat tip to both Musicweaver for hosting it and the wonderful Blue Wode for pointing me there.)

The first striking thing for me was his impressive list of qualifications:

"Lionel R Milgrom LCH MARH MRHom BSc MSc PhD CChem FRSC".

He must have taken great care to type each of these out correctly and, indeed, presumably in just the correct order of precedence.

For those of us with mere Arts MAs (and mine was unearned in any case), this is actually all rather intimidating.

Fortunately, the oppressive effect on me of all those qualifications was alleviated by his self-description as a:

"sientist [sic], writer, homeopath".


Well a typo can happen to all of us - there are certainly too many on this Blog - but sometimes a mistake can be revealing, especially when it can be juxtaposed with the careful precision of setting out of all those qualifications in just the right order: the outward assertion of scholarship.

But then I was struck by one of his citations - noticed first by the wise and always alert Le Canard Noir on Twitter.

Dr Milgrom begins one paragraph:

"Much of Dr Singh’s and Prof Ernst’s ire against CAM stems from a particular scientific mind set (logical positivism) which they appear to regard as incontrovertible truth."

Powerful stuff: but can it be substantiated?

It seems so, for there is then a footnote (one of rather many for such a short piece) to:

"Okasha S. Philosophy of science: a very short introduction. Oxford University Press, 2002."

I was astonished.

I laughed, I am afraid to say.

The Oxford "very short introduction" series are crammers, albeit well-written ones.

As an arts undergraduate, they would be the sort of thing one would perhaps use to read into a new subject; but one would not dare cite it in an essay, even in the first term.

Perhaps homeopathy has been taken to heart here, and so the idea may be that a very short introduction to a vast subject is somehow more potent than a major monograph?

If so, perhaps an even more strident opinion would be sourced to an even more diluted authority?

Who knows?

But, in citing a crammer - which would embarrass a first year arts undergraduate - in the British Medical Journal, I am not sure Dr Milgrom has really aided his cause.

Sunday, 12 July 2009

Why BCA v Singh Matters To Me

This time last year I had never heard of the now discredited British Chiropractic Association.

If I had read Simon Singh's original article in the April, I soon forgot all about it.

The first time I had ever thought about chiropractic was that May, when Mahlon Wagner gave a fine talk to Skeptics in the Pub in London.

So by the summer, chiropractic was for me just another topic which skeptics had discussed in a pub one evening. It was of no greater interest to me than, say, horoscopes, ghosthunting, or crop circles.

For, although my lovely critic Dr George Lewith has accused me of being "a prominent member of the anti-CAM brigade", I really have never had any particular interest in complementary and alternative medicine (CAM).

Most of what I now know about CAM has come from dealing with legal threats from CAM practitioners to critics; and so whilst I now know about chiropractic and homeopathy, I still know little about - say - osteopathy, reiki or acupuncture, for the simple reason that practitioners of the latter do not seem to threaten to sue people when criticised to the same level.

Then, one summer day, I get a call from my friend Professor Chris French.

He tells me that Simon Singh is being sued for libel.

I had met Simon Singh, around the time of his fateful Guardian article, when the great and amazing James Randi came to speak in London. At the dinner afterwards I was lucky enough to sit by Simon Singh, and he cheerfully and charmingly fired questions at me about the relationship between skepticism and the law.

So I was shocked and supportive when Chis French told me that this cheerful and charming chap was now being sued.

As I was still "in-house" at time, I was not able to advise or act for Simon Singh.

So I wondered what I could do to help from the outside.

I straight away realised that as a media and communications lawyer I could offer an informed and supportive commentary on this Blog. For although I know little about CAM, I do know about libel law. And, unlike many lawyers, I enjoy writing about law in a popular way.

But as I read further into the case, and finally got hold of the original text, my general wish to support Simon Singh transformed into a stark and fierce passion.

It was immediately obvious on reading the alleged libel that the BCA case was deeply misconceived.

Before I explain the cause of my passion, I would just like to set the BCA case in some legal context.

I have had the good fortune to sit in the same conference rooms and offices as some of the best media litigators in the City.

And of many things I have learned from these experiences, two are salutary:

1. just because a case can be brought it doesn't mean it should be brought; and

2. never, never bring a case unless you are fully prepared to fight it to the end.

(Think about feeding Gremlins after midnight...)

Bad litigation arises when either - or both - of these lessons are disregarded.

I have said before that the BCA do not have a weak case; and the BCA - and The Guardian - lawyers have so far been proved "right" on this narrow point.

Nonetheless, it is a case which should not have been brought.

Nothing important would have been gained by a BCA legal victory - or even defeat - whilst the crucial underlying issue of the adequacy of the evidence base was left unresolved.

And the BCA clearly are bewildered that Simon Singh refused to surrender.

For me, the most telling statement made by the BCA from the plethora of verbiage in their increasingly barmy and desperate press releases, was a snide remark about Simon Singh saying he had the money and time to fight the case.

It was like the school bully realising that someone is both willing and able to take him or her on.

My impression - my guess - is that like a number of such claimants, the BCA did not really think past bringing the claim. To use the dreadful management-speak term, they thought this would be a "quick win".

So, with this background, it was never going to be a good case for the BCA.

However, the source of my passion was nothing to do with CAM or because I had met and liked Simon Singh or that I saw a case wrongly brought.

It was, for me, a free speech issue regarding public health.

In essence, Simon Singh's article was critical of the evidence base for certain treatments for children's ailments.

As such, it is my fundamental view that - absent malice - such statements should be published without fear of legal action.

Indeed, my view is that the law should be there to protect such statements not hinder them.

Debate about public health - and public safety and police powers - should be as free as possible.

As I stated when I set up the Facebook support group (which, incidentally, is now too large for messages to be sent to its members!):

"An informed and responsible science writer should be able to write about genuine concerns on an important public health issue (the correct treatment for children) without the threat and expense of High Court libel claims.

"Even if he is wrong, it would be surely enough for the BCA to simply show their supporting evidence. But they are suing him instead".

The key passage here is "even if he is wrong" - I know little about CAM and did not know if he was correct (though it is now clear to me that he is), but he should have been permitted to raise the issue.

In my opinion, the two sentences in dispute should have been properly sub-edited by The Guardian into being libel-proof - it would have taken five minutes at most.

And, given they were published, the BCA should have accepted The Guardian's offer of a "right to reply".

Or they could have published their evidence base on their website. Perhaps they could have had a conference to discuss Simon SIngh's claims, which I think he would have eagerly attended.

But it was not until Simon Singh forced the BCA with his wide-ranging Defence to set out its purported evidence base for the six children's ailments that the BCA even started trying to substantiate their claims.

(I understand the "plethora" originated in the BCA's attempt to undermine Simon Singh's "Fair Comment" defence - a defence which the BCA strongly opposed. So, had it not been for this defence, we still would not know the BCA's evidence base.)

And when a case is misconceived, disasters can occur.

That said, I never expected the spectacular mess which the BCA has caused by their lawsuit. It really does seem to get worse every week or so.

Yes, the BCA could sue, but it is now obvious to everyone that they should not have done so.

Libel law should not have any role in science generally; but it certainly should be kept out of discussions about public health.

It is where "free speech" should be a given, but it is not.

And so that is why BCA v Singh matters to me.

free debate

Friday, 10 July 2009

BMJ: The "Plethora" Has Been Completely Demolished

In what seems a potentially devastating blow to the British Chiropractic Association, an editorial in the current British Medical Journal says the following of the review by Edzard Ernst of the BCA's 'plethora' of evidence:

"His demolition of the 18 references is, to my mind, complete."

Read this aloud, slowly; and then imagine this sentence being read out in court.

This is surely devastating.


For after a complete demolition, of course, there will not be a jot remaining.

Ernst also make very interesting points indeed as to the completeness of the references and whether the BCA did or should have known better. These points may well be relevant in the trial, regardless of how successful Simon Singh is with his appeal.

I understand this editorial, and Ernst's review, was repeatedly "lawyered" before publication: so I would like to say very well done to my learned friends for approving the text which appeared.

Le Canard Noir now has an outstanding post on all this here. I agree entirely with the wise duck.

In my view, it is now entirely appropriate that we routinely describe the culprits in all this as "the discredited BCA".

For it seems that even the BMJ now concurs that there is not a jot of evidence...

Wednesday, 8 July 2009

Two Views On Ronnie Biggs

What, if any, should be the skeptical approach to the recent decision by Jack Straw to deny parole to Ronnie Biggs?

The government's decision is reported here.

On one hand, Nick Cohen is highly critical of the decision, seeing in it another sad example of the government's gesture-ridden decision-making. In short, he is skeptical about the government's stance.

On the other hand, Joan Smith in The Independent, is critical of the sentimentality that she sees attending this matter, and she compares the sympathy which the decision may elicit with the hard evidence of what Biggs and his gang actually did, and what they were prepared to do.

Both Nick Cohen and Joan Smith are being skeptical, but they differ fundamentally.

My own thoughts are mixed.

I am generally skeptical of penal policy and of populist decision-making; but I am also skeptical of those who celebrate dangerous people as folk heroes.

In my view, prison is in general an expensive way of making bad people worse and it entrenches criminality in society; but I also believe serious crime has to be dealt with in a hard-headed and clear-eyed way.

Instinctively I supported Nick Cohen on Ronnie Biggs, but I really did find Joan Smith's article a difficult counter-challenge.

I wonder what other skeptics think about this issue...

Blogging vs Internet Journalism?

Last week Ben Goldacre explained how a Telegraph story on rape badly distorted a press release.

The details of what happened are not only discrediting, but also revealing about the respective merits of Blogging and early internet journalism. And I think the latter will soon change.

A good Blog always seeks to source statements. This is the beauty of the Hyperlink.

However, the early internet journalist, especially those from the "print" traditions, will tend not to source statements.

This is partly because journalists sometimes see themselves as professional interpreters of sources; but more often, as Nick Davies points out in Flat Earth News, it just disguises laziness and exaggeration.

Readers of internet journalism will increasingly expect hyperlinks to sources to be embedded into internet news stories.

So, in the example highlighted by Ben Goldacre, any story which relies on the statement "claim scientists" would link directly to the press release or to the published research.

Indeed, as a general rule, any "claim scientists" story which now does not link to the source is undoubtedly crap.

I expect some old-fashioned journalists and editors will resist this transparency, not least because it could instantly demonstrate how little - or just how much - they are actually adding to their source.

However, I also expect that the new generation of internet journalists, even in the mainstream media, will instinctively link to their published sources.

Any good internet journalist who invariably linked to - and demonstrably did not distort - their published sources would become highly credible with readers and will secure a following, and this in turn will please editors and advertisers.

However, I suspect "churnalists" will soon just not be bothered with by readers, and then by editors and advertisers.

I reckon that, in a year or so, good internet journalists - like good Bloggers - will routinely link to their published sources, and readers will forget that once this was not the case.

Or am I just being optimistic?

Sunday, 5 July 2009

Obscenity After The Dropped 'Girls Aloud' Prosecution

Obscenity is a crime under English law.

More exactly, it is a criminal offence to publish - or to possess with the intention of commercial gain - an "obscene article".

Importantly, this is all the intention required for a conviction to be secured: that one intends to publish or intends to make a commercial gain. Any intention to be actually obscene is legally irrelevant.

So what is an "obscene article"?

Under the Obscene Publications Act 1959:

"an article shall be deemed to be obscene if its, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".
(Emphasis added.)

This is a question of fact for the Court to try, not a question of motive.

As the added emphasised text demonstrates, it is for the Court to determine whether an article is "such as to tend to deprave and corrupt persons". It is the fulfilment of this test which is the key battleground of almost all obscenity trials.

And so I thought it was on this point that the prosecution for obscenity against Darryn Walker, who put his vile fantasies online about the band Girls Aloud, was dropped this week.

I had blogged in October 2008 on this case being brought, adopting a general "free speech" position.

Since then, I had wondered about the implications of the case.

(Indeed, in a couple of days of inspiration, I wrote out the draft of a play about a hapless public intellectual facing a similar obscenity prosecution.)

From the newspaper reports, the key feature - the real yuck factor - seemed to be that the subjects of the nasty fantasies were real people. Had the fantasies been, say, about fictional characters, or had it been a straight non-fiction account of a disgusting incident, it appeared to me that the case would not have been brought.

But I was still surprised that the case had been brought at all.

This was because it was conventional wisdom that the Obscene Publications Act 1959 was no longer used for publications of the written word.

The general view among lawyers was that the failure of the 1975 Inside Linda Lovelace trial meant that it was pointless to try and bring prosecutions where there was any - even spurious - argument of literary merit. (The Act has a "public good" defence.)

When I heard that the case was dropped I assumed that the prosecutors had revisited their decision to prosecute, and that they had sensibly realised that the publication of such vile works was an unfortunate implication of a society with free expression.

But then I read the press release of the Crown Prosecution Service (hat tip to the estimable Padraig Reidy of Index on Censorship):

"The Crown Prosecution Service has today offered no evidence at Newcastle Crown Court against Darryn Walker, accused of one offence under the Obscene Publications Act, 1959.

"The court was told by David Perry, QC, for the Crown, that there was no longer a realistic prospect of conviction. This followed the defence serving new evidence on the prosecution on 12 June 2009, just over two weeks before the trial was due to start.

"The case was reviewed again and in the light of the evidence, it was decided it could no longer go ahead. We notified the defence and the court of our decision as soon as we were able.

"The court was told the prosecution had received a number of expert reports, one of which cast doubt over the accessibility of the article to people searching the internet and that it could only be found by those determined to find it.

"The prosecution was unable to provide sufficient evidence to contradict this and so took the decision there was no longer a realistic prospect of conviction."

So the technical basis for the decision to drop the prosecution was not whether the material tended to deprave or corrupt.

Looking again at the relevant wording in the Act, but now with different emphasis added:

"an article shall be deemed to be obscene if its, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".

It appears that the legal requirement which was not met was that there was no likelihood that the obscene material would be readily available to a class of people who could be depraved and corrupted.

However, the material was (I understand) available on an internet archive and was found without difficulty by an British tabloid newspaper journalist.

If my understandings here are correct, then the Crown Prosecution Service seem to be suggesting that publication on the internet is not necessarily publication to the world.

John Ozimek and Julian Petley in The Guardian yesterday suggested that there had been deep internal disputes about this case in the Crown Prosecution Service. The decision to prosecute was taken locally, but it seems the national leadership took a far more liberal and sensible view.

In view of this, it appears to me that the Crown Prosecution Service's stated reason for dropping the case may well reflect some internal compromise, leaving open the question of whether the material met the key test of obscenity in the first place.

I have often stated that litigation is an inefficient means of addressing certain wider issues. These wider issues can be about science or, as here, about normative standards in a free society.

The law of obscenity is currently misconceived: the Court's view of the effect on the readers or viewers should be irrelevant. And the decisions to prosecute should not be so easy.

Even where the law of obscenity still performs a useful function - prohibiting various "philia" materials for example - the law should be recast as addressing the creation or possession of such materials, and not on the supposed effects of the materials on an audience.

And the approval of the Director of Public Prosecutions should now be required for any prosecution in respect of content, as it certainly should not be left to local prosecutors.

This has been a most unfortunate case, from beginning to end; but perhaps it can now lead to long required reform of English obscenity law.

Friday, 3 July 2009

My First 'Hate' Email: A 'Chiropractic Doctor' Writes

Yesterday I received my first "hate" email.

Subject: nahh nahh nahh nahh nahh nahh!

Jack-Off, uh, excuse me, Jack of Kent. Simon has to pay, Simon has to pay, na na na na nahh.

Jack, you remember me? You know? The chiropractic doctor who trolled the skeptics site? The one who takes care of 500 pv/week, including MD's?

I told ya then that Simon would be found libel, you Brit Twit across the watery pit!

Suck it up you dick head barrister!

Now that last thing is a serious thing to say to any solicitor.

Indeed, many would even regard "dick head barrister" as a tautology...