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Monday, 24 August 2009

On Sabbatical

I am now on a sabbatical from Blogging to concentrate on a possible book and other projects.

In the meantime, for updates please do follow on Twitter and become a fan on Facebook.

Sunday, 23 August 2009

Amongst The Simpsons Skeptic Top Trumps

The esteemed Crispian Jago (of whose Blog I was once perhaps the only reader) has excelled himself yet again with a sequence of Skeptic Top Trumps.

Many of these feature very eminent and internationally-renowned skeptics.

And they also a couple of others, including this rather delightful chap.

Fortunately, as the idea was entirely mine - I texted it to Crispian one journey to work as I walked passed the Bank of England - I am afraid all the lucrative royalties will have to come to me ;-)

More seriously, almost with every post Crispian is possibly becoming the foremost satirist of the skeptic movement, the internet counterpart to Tim Minchin.

Amongst The Science Bloggers

Yesterday I went along to the Science Online Conference at the Royal Institution.

Somehow I had been put down as a speaker in a joint session with the wonderful Dr Petra Boynton. This session would look at the ethics (Petra) and legalities (me) of blogging.

I was not looking forward to this.

I loathe public speaking (this is regardless of whether I am actually any good at it), but the ethics and law of blogging is an important issue, and with recent cases such as Night Jack and Liskula Cohen, it seemed useful that someone report on the current situation and its possible implications.

However, what made it worse for me was that amongst those attending were some of the greatest science and skeptic bloggers: the legendary David Colquhoun, the highly influential Andy Lewis of Quackometer , the incredibly insightful Dr Aust, Frank Swain - the the SciencePunk himself, and so on.

It was even rumoured that the majestic Gimpy was there, a bad science blogger rated as a first rate investigative writer by even broadsheet journalists.

What could possibly go wrong in front of such luminaries?

But if one is going to have to go through the ordeal of public speaking, one may as well do it in the world famous Royal Institution Lecture Theatre, which of course hosts the world famous Christmas Lectures for children.

This would be a particular honour, as for different reasons nether Petra nor I could reasonably expect to be invited to give the Christmas Lectures.

Our session was a closed one. This meant that there was no "Second Life" stream and attendees were asked not to do live blogging. This is not unusual when lawyers and others give talks on liability issues. Real people can actually rely on what seems to be advice in practical and difficult situations, and so unless there are appropriate disclaimers and controls, it can be difficult for certain legal issues to be discussed in meetings (or in print).

Our session was also the first one of the day. This was a last minute switch. The "Second Life" stream was not working and so the organisers thought ethics and law would be a splendid way to start the morning session.

So half-asleep and ridden with caffeine, and armed only with two science O-Levels (both grade 'C') from 1987, I looked up in this famed and imposing scientific lecture theatre and saw scores of science bloggers looking down at me. Well, the ones who were not perched behind their Apple Mac laptops anyway, each Apple logo seeming to me at that moment as scary as a street gang emblem.

And then they started Twittering.

I was not aware of this at the time, thankfully, as I would have simply frozen, and mumbled all the more. But these invisible messages were darting around the lecture theatre from laptop to laptop, like a horrible cyberspace version of Hitchcock's The Birds.

As requested, the Twittering was not about the content of the talk. I am grateful to each attendee there for helping me out on that.

But the course and success of the talk can perhaps be gauged by some of the Twitters made.

@gimpyblog: @jackofkent has lawyers hair

@Enroweb: starting the conference with legal aspects of blogging is definitely a party crasher

@Skyponderer replies to a curious absentee: You're not missing much

Others were kinder and more polite, perhaps feeling sorry for the Arts graduate in their midst.

Fortunately, Petra is an amazing speaker and covered the ethics side with her characteristic wisdom and humanity, and so I think the session went well overall. And the inherent interest in the legal side of blogging meant that the attention of attendees did not wander too much.

The key point which I wanted to get across was that to put things into the public domain - via blogs, message boards, Twittering or whatever - is to publish (to "public") those things.

And that, in the view of the law, being the publisher means one is creating exposure to liability in civil law (libel, copyright, confidentiality, and privacy) and even criminal law (contempt of court, consumer protection) which ten years ago and before would have been decisions more for editors and publishers, rather than the author.

@phnk: Jack's conclusion could be "you need a good lawyer to blog, and I happen to know one"

Ouch.

However, I would prefer a very different conclusion to be drawn.

One does not really need to be or have a good lawyer to blog or otherwise self-publish on the internet, one just needs to be as sensible, considered and responsible as one would be writing in any other medium.

This should not be a problem.

For - as Ben Goldacre said in describing the science bloggers who destroyed the plethora of "evidence" put forward by the now discredited British Chiropractic Association in their misconceived libel case against Simon Singh - British science bloggers do many things very, very well indeed.

Wednesday, 19 August 2009

The Liskula Cohen Case: Vogue and "Anonymous" Blogging

It is reported today tell that a US Court has ordered Google to disclose the IP address and email of an "anonymous" blogger.

This blogger had posted fairly strong - indeed insulting - remarks about an American model called Liskula Cohen.

She sought disclosure from Google of the IP and email address of the blogger. To their credit, Google seem to have insisted on a court order before disclosure.

The case is not yet about whether the remarks actually constitute a libel (an area of law which does exist under US law, notwithstanding the First Amendment guarantee of free speech) - that issue has not so far been tried; but about whether Google could be ordered to disclose IP and email address information of an "anonymous" poster to a potential plaintiff (in England, a claimant).

The New York Supreme Court appears to have made such an order.

But such an outcome would also be likely under English law.

In the Sheffield Wednesday supporter case of October 2007, the High Court ordered the disclosure of the details of a number of "anonymous" posters who had made serious allegations on a football discussion forum site. (In English law such an order is called a "Norwich Pharmacal" order after the leading case.)

And, as was seen in the Night Jack case (see my post here), the starting point for English courts will be that blogging is an essentially public activity, and so the author's identity cannot normally be protected under the law of privacy.

So in both English and (it would seem) US law, simply being anonymous on the internet is not an escape from potential legal liability and public disclosure.

One can, in certain circumstances, be held both legally and publicly accountable for supposedly "anonymous" posts and blogging.

If it is possible for a third party - such as Google - to be compelled to disclose one's email and IP address to a potential claimant, then that really is the risk one is taking when posting defamatory or other unlawful material on the internet.

One should never think of anonymous internet abuse as merely inconsequential graffiti.

The Rights Of Animals

I have always had the view that humans have responsibilities towards animals, rather than animals actually having rights.

But I have been wondering what would be the implications if I this was not correct and that animals did have rights.

Clearly the animal would have the right not to be badly treated by humans; but it would appear to me that the practical effect of this right would be roughly the same as the human merely having responsibility towards the animal.

The implication of "animal rights" which interests me is the extent that humans should intervene to stop animals treating other animals badly.

For it appears to me that if (a) an animal does have rights and (b) humans have the means so as to allow the animal to enforce these rights, then humans should (say) intervene to stop animals being cruel to each other.

So, if an animal does have rights, are they enforceable (via human intervention) against other animals as well as against humans?

If this is the case, do humans have a positive active duty to police the animal kingdom and prevent cruelty between animals?

How far, if at all, should humans go to stop cruelty between animals?

Any help clarifying my thoughts here would be most welcome.




As always, please tag your comment with a name even if you have no url; purely "anonymous" comments may not get moderated.

Tuesday, 18 August 2009

Quentin Letts and a Frozen Haddock

The talk in libel and journalism circles is currently about Daily Mail journalist Quentin Letts, who is facing a misconceived libel claim from Sir Alan Sugar.

However, one wonderful aspect of this case appears appears so far to have been overlooked.

As followers of this Blog will know, most high profile libel cases are heard by Mr Justice Eady.

And Mr Justice Eady, in a recently released and extremely interesting speech on privacy law (on which I intend to blog more fully), described how judges have been personally attacked in the media for their privacy judgments.

Referring to himself:-

"One [judge] in particular has been accused of "moral and social nihilism", "arrogance", "immorality", "amorality" and of favouring privacy because he is "painfully shy": and of combining all that with being "a frozen haddock"."

So which journalist described Mr Justice Eady as a "a frozen haddock" causing the judge himself to dwell on this slight in a learned speech?

Step forward Quentin Letts.

The now perhaps rather unfortunate article is here.

I wonder to which judge the case of Sugar vs Letts will get allocated...

Sunday, 16 August 2009

"It Should Be Banned!" - Thoughts On Banning Things

One feature of modern political debate is the readiness of people to say something "should be banned".

The thing to be banned - which I will now call [B] - can range from drugs to obscene art, from fox hunting to animal experiments, from prostitution to absinthe, and from blasphemy to homosexuality.

There are dozens of examples, and this tendency is shared by the left, right, and centre.

However, from a legal perspective, to ban [B] is not actually to eliminate or extinguish it.

Sometimes [B] continues on as before, but slips down the back streets or dives underground.

Or sometimes [B] does actually stop in practice - like say bear baiting or cockfighting - though this can often be because of cultural change rather than legal change.

It may even be that the consequences of banning [B] are such that one will be deterred from doing [B], and sometimes this can work in practice, though the deterrence theory of punishment is generally questionable and has always seemed to me to be unfair.

In all cases, what banning [B] means is that if [B] now happens it can be attended by certain consequences.

This is because law is not actually any good at banning things like [B] but for providing for sanctions and liabilities should [B] happen again.

To use the law to ban something is not to invoke some magical power to prevent it happening.

Modern criminal law actually does not seek to ban things, at least not expressly. Instead the usual criminal statute will say that to do [B] shall "be an offence".

This means that the police and courts will deal with incidents of [B] in a certain way, and so in turn (if appropriate) will the prison and probation services.

To ban something is not the end of a phenomenon, but the introduction of new knock-on effects.

All this is straightforward in the mainstream of criminal activity, the endless and depressing daily tally of dishonest acts and physical assaults. It is also entirely appropriate for the most serious examples of dishonesty and violence.

I am not in the least sentimental about those who engage in serious criminal activity.

But dealing with mainstream criminality through a grim system of offences and sanctions is not the same as dealing with issues which can (arguably) have wider and contended religious, normative, sexual, or cultural significance.

And these can range from drugs to obscene art, from fox hunting to animal experiments, from prostitution to absinthe, and from blasphemy to homosexuality.

Sometimes it may well be wrong, and perhaps it really should come to an end.

But in my view, nothing is ever really banned by banning it.

Next time you catch yourself saying "it should be banned" reflect on whether you merely want it to ended, or whether you really wish it to perhaps continue but be subject to a criminal justice system processing unlucky future incidents of it ever being caught.

Why I Blog, or Johnson v Orwell

Which literary titan is correct?

Samuel Johnson or George Orwell?

Johnson famously said:

"No man but a blockhead ever wrote, except for money."

However, Orwell said in Why I Write:

"My starting point is always a feeling of partisanship, a sense of injustice. When I sit down to write a book, I do not say to myself, ‘I am going to produce a work of art’. I write it because there is some lie that I want to expose, some fact to which I want to draw attention, and my initial concern is to get a hearing."

I spend most of my day writing. And, sadly, Samuel Johnson is largely right about why I do it.

My day job consists of drafting, revising, and amending lengthy formal legal documents, often contracts. Like many other lawyers, my daily wordcount is probably higher than even the most diligent journalist or novelist.

However, few people will read the contracts I write, but the contracts have to be correct all the same. For, if a transaction or project goes wrong, and the people involved enter into a dispute, then it will be the contract which will largely determine the outcome of that dispute.

Nobody writes such formal lengthy contracts, but for money.

Not even blockheads.

But once my day job is over, I carry on writing, often about legal topics.

And - other than $10 from Google Adsense (see the automatic advert, sometimes for a chiropractor or personal injury lawyer, at the bottom of this page) - I have directly never earned a penny from this Blog.

I sometimes - but rarely - do commissioned legal journalism, and I am writing a book about law which I hope somebody publishes and some other people buy.

But money does not explain why I do this Blog.

I also do not often Blog about things which simply interest me or matter to me: on politics, skepticism, and law there are Bloggers and MSM journalists who write well about my interests, and there is no good reason to add my echo.

I Blog because I want to say something which I have not yet seem elsewhere, or because (usually because of my legal background) I am in the fortunate position of being able to contribute to a debate.

Over the last year this has often been in the context of the misconceived libel case brought by the now discredited British Chiropractic Association.

But there are other areas, from the abuse of police powers to the misapplication of intellectual property law, where I am anxious to one day make contributions to the debate.

Blogging is a wonderful innovation. Before the internet, any attempt to engage in a written debate was always at the behest and whim of an editor and publisher. Now these figures can be by-passed, and one can just click on "publish post".

Of course some Blogs are better than others, but at least no one is now held back from making a contribution just because of the decision of an editor or publisher.

So, as for Blogging, Orwell is largely right. The best Blogs make a difference, saying something well and distinctive, perhaps adding new information or a new insight.

Bloggers may well be blockheads, but it is not because they are doing it for money.

Saturday, 15 August 2009

Daniel Hannan, the NHS, and Public Health

They started appearing on Twitter last week: emotive declarations of love for the National Health Service.

They appeared with the tag #welovethenhs accompanied with moving statements: "because it saved my life" and "because my mother is still alive" and so on.

One can hardly complain about such declarations and explanations of love.

In this largely wretched, hate-ridden, and generally uncaring world, any mass campaign of statements of love is surely a welcome phenomenon.

Indeed, we should perhaps do these love statements more often.

There could even be a new Twitter tag #welovejackofkent followed with explanations such as "because he writes in nice short paragraphs" or "because he writes in the form of Sun editorials".

If these statements of love for the NHS were just for some positive reason then all one should do is nod and perhaps even join in.

But I wonder if they were serving another purpose.

Perhaps wrongly, I formed the impression that they were attempts to close down a debate, opened up in part by the Conservative MEP Daniel Hannan. He has for sometime been critical of the NHS model of health provision and recently appeared on US television and explained why. The background to this is that the US are themselves in the midst of a political controversy about reforming their own provision (or lack of provision) of health services.


I can here declare two interests.

First, I am fond of the NHS.

I have no illusions about it. In many ways it is a racket: an expensive and inefficient mix of pharma profiteering, PFI profiteering, sloppy procurement, self-interested professionals, incompetent management, Luddite public sector unions, and woeful IT development. All this masked by the soppy but powerful sentimentality of the NHS brand, making it almost impossible for any politician to promote genuine reform.

All that said, however, the NHS does ensure treatment free at the point of use for the poorest in our society. Any other model seems to risk greater social exclusion. For me this is the most important test.

Also, in my view, placing public health provision on to an insurance policy basis does not remove the current complicated racket, but merely adds grasping insurance companies to the mix.

However, I could be wrong.

It may well be that there is actually a better model of health provision, including for the poor, than the NHS. It may even be that the NHS should be dismantled rather than reformed.

I rather doubt it, but it is an important debate, and one which should not really be closed down too readily.

And here I can declare a second interest.

I was at university with Daniel Hannan and knew him slightly. And although I have not spoken with him for some fifteen or so years, I have followed his political career with interest.

He is a rare political creature; not only is he sincere, his actions are actually connected to his stated beliefs. Moreover he has an independent mind, stocked with international comparisons and contrasts on many matters, not just health provision.

I do not agree with his views on many issues (now less than ever given my drift to the left), but it is always worth listening to him.

So it is useful to read what he has actually written on the subject, rather than creating a straw mman, for example here.

If he is right, and that other countries' models do have better public health outcomes, then this is an important contribution to the debate about health provision. And, if he is wrong, then this should be clearly set out.

But the wrong approach to his critique of the UK model of health care provision is, in my view, to rely on sentimentality of the #welovethenhs campaign.

It is not only discredited CAM practitioners with their misconceived legal claims that can effectively limit important debates on public health.

Tuesday, 11 August 2009

Simon Soldiers On

Simon Singh has today confirmed that he will ask for an oral re-consideration of his application for Permission To Appeal.

Simon Singh also outlines his current thinking, including a full response to The Heresiarch's Open Letter.

In practical terms, all this means that there will be a public hearing at the Court of Appeal in London on 14 October 2009.

This oral hearing will deal with whether Simon Singh can have a full appeal hearing against the adverse ruling on meaning.

Saturday, 8 August 2009

English Witchcraft Trials In Perspective

Monty Python surely have a lot to answer for.

It will take at least two generations for aspects of English and American culture to recover from Monty Python's distorting effect.

Take, for example, witchcraft trials.

It is impossible for any almost any English or American person not to have the following scene as their starting point.

Indeed, Cripian Jago - the leading satirist of the UK skeptic movement - uses this scene for his mockery of the preliminary hearing of the libel case brought by (the now discredited) British Chiropractic Association against Simon Singh.

But just as the great Phil Plait describes in Bad Astronomy that movies misrepresent science and space, movies also often misrepresent law and the legal process.

And witchcraft trials are one example.

Witchcraft trials were incredibly rare in medieval England. Between 1066 and the Reformation there are only about six documented examples, and they seem rarer still in the preceding Anglo-Saxon period.

Instead, witchcraft trials were a feature of late Tudor and Stuart England, a good number of them actually occurring after the depiction of the witches in Macbeth (around 1603-07).

(Indeed, one must note that, as with the fairies in A Midsummer Night's Dream and the ghost in Hamlet, Shakespeare's use of witches matched the worldview of his early-modern audience.)

In other words, a typical English witchcraft trial is more Blackadder II than King Arthur.

And even then it was rare for witches to be prosecuted simply because they were witches.

A witch was prosecuted, not because he or she was a witch, but because it was genuinely believed that witchcraft caused damage.

In this pre-Newtonian worldview, it was believed genuinely that the invisible force of magic was the cause and effect of the witch's malicious intents and the deaths and damage suffered by the victim.

Prosecutions usually had to be paid for by the victims (not sponsored by any public body) and were expensive. Other than Matthew Hopkins, there were very few professional witch-finders.

The defendant also had to be imprisoned in a gaol at the victim's expense until an assize, where a judge of sufficient seniority could conduct a trial.

To bring a witchcraft prosecution was normally the last resort, to be used by a victim of perceived witchcraft when there seemed no other option for dealing with the damage being caused.

Even if the prosecution got off the ground, it may not be successful. Judges such as Holt and Powell became famous for their enlightened approach - Powell even supposedly dismissing some extraordinary evidence with the cheerful remark that it was actually not unlawful for a person to fly through the air.

Around 1700 there is a fall in prosecutions. There was still popular belief in witchcraft and magic, but it seems not in its causation for personal injury and property damage, and certainly not in the efficacy of the legal process to deal with it.

And by 1736 almost all the witchcraft legislation is repealed.

I will write another time on what happened next, especially in relation to fraudulent mediums (including the shameless fraudster Helen Duncan).

Wednesday, 5 August 2009

Citizenship Test

Please see my other Blog - Jack About Town - for an account of me taking and failing the new UK citizenship test.

Tuesday, 4 August 2009

The Length of Simon Singh's Skeleton: The Reasons for Refusal by the Court of Appeal

The reasons are now available for the Court of Appeal's refusal of the written application by Simon Singh for permission to appeal (PTA).

I blogged on Friday that Simon Singh had failed to obtain PTA on his first application to the Court of Appeal.

I will first set out below the single paragraph of reasons in the relevant Court of Appeal document, and then I will do a sentence-by-sentence commentary.

Reasons

"Despite the length of the applicant’s skeleton, the judge seems to me to have been right in both his decisions. His approach as a matter of principle to the two questions was in accordance with authority, and the absence of any express reference to certain matters of context does not mean that he did not take them into account. Just because it may be difficult to prove a negative such as there not being a “jot of evidence” for a proposition does not mean that it is not an assertion of fact. All in all, I cannot see any realistic prospect of a successful appeal."

Commentary

"Despite the length of the applicant’s skeleton, the judge seems to me to have been right in both his decisions."

The reference to Simon Singh's skeleton is not to his physiology (especially his spine), but to his comprehensive and detailed "skeleton argument" - a document filed with the court outlining his arguments. (This standard legal jargon does, however, seem a bit unfortunate in the context of this particular case.)

The reference to "both his decisions" is (I think) to the decisions of the High Court judge that (a) it was a statement of fact not of an opinion, and (b) what that statement of fact was (ie, an allegation of conscious dishonesty. (However, I could be wrong here, as I do not actually have the skeleton argument.)

"His [the High Court judge's] approach as a matter of principle to the two questions was in accordance with authority, and the absence of any express reference to certain matters of context does not mean that he did not take them into account."

Here it appears that Simon Singh's lawyers had emphasised the article as a whole, for example the paragraph which set out why Simon Singh was describing the treatments as "bogus". The Court of Appeal is stating that the failure by the High Court judge to refer to other passages in the article did not mean that the article as a whole was not taken into account

"Just because it may be difficult to prove a negative such as there not being a “jot of evidence” for a proposition does not mean that it is not an assertion of fact."

Here the Court of Appeal is reinforcing the High Court's ruling that Simon Singh's statements were allegations of fact, not expressions of opinion.

"All in all, I cannot see any realistic prospect of a successful appeal."


Please note it is not stated that the application for PTA was hopeless; so this means that it is still open for Simon Singh to bite again at the cherry of PTA with an oral hearing.

These brief reasons are also perhaps interesting in what they do not explicitly address. For example, there is nothing here expressly about the dishonesty point, that is that the High Court ruled that the words complained of alleged conscious dishonesty on the part of the British Chiropractic Association.

It may be that in any oral application for PTA there is still perhaps some chance of overturning the High Court's ruling on meaning.

These reasons may seem short, though they are longer than others in respect of PTAs.

I understand Simon Singh now has seven days from today to decide whether to make an oral application for PTA.



COMMENTS MODERATION

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Saturday, 1 August 2009

Simon's Choice

Even if Simon Singh proceeds to an oral hearing for permission to appeal (PTA), he is unlikely to succeed. PTA has already been turned down twice, by the High Court at the preliminary hearing, and by Court of Appeal this week.

There are a variety of ways forward if he is unsuccessful in PTA but, for me, they are two broad options.

The case can continue

The case can continue in a number of fashions.

There is actually still an issue outstanding from the preliminary hearing - whether the (now discredited) British Chiropractic Association can as a corporartion sue for libel: there is actually little legal authority, if any, for a company without shareholders to sue for defamation. So there still has to be a ruling on the "corporate" issue once the current "meaning" issue is finally dealt with.

And an adverse ruling on this corporate issue can also be appealed to the Court of Appeal (subject always to PTA, but refusal of PTA can of course also be appealed).

The case can continue to full trial. Here Simon Singh's defence is in a slightly stronger position than it was before the BCA's incredible plethora gaffe - for example, the selective quotation from the Cochrane review may come back to haunt them (a very great hat tip to the Lay Scientist for that).

However, the meaning selected by the High Court will always be difficult to establish. And, as it is not the meaning which Simon Singh actually meant, such a trial will perhaps be rather artificial.

The case can also go off to the European Court of Human Rights (ECtHR), and this can be either at this preliminary stage or after full trial and any appeal. This would probably be on Article 10 (free expression) grounds. The ECtHR is not a great supporter of English libel law (and was critical in the Tolstoy and McLibel cases). However, this would take years and may not ultimately succeed.

The case can come to an end

One senses the BCA no longer have much appetite for this fight. Their statement yesterday was conciliatory, in contrast
to the strident barminess of some of their other statements.

It cannot be nice for the BCA to survey the lasting and very serious damage to their profession caused by their misconceived libel action.

So it may be time for the case to settle. This may require Simon Singh to execute the "Heresiarch Manoeuvre" (named after the excellent blogger who described it) of apologising to the narrow meaning ascribed by the High Court.

One benefit of this for the skeptical movement generally would be to free the ongoing scrutiny of alternative and complementary health from being tied to the particular issue of chiropractic for various children's ailments.

(The other immense benefit will be to Simon Singh's resources; he really can only be expected to persist with his defence as long as it is reasonable to do so. His heroic status for all liberals, skeptics, and scientists is now assured.)


Going forward

I know Simon Singh values the views of the skeptic and blogging community. (Indeed, this community showed their appreciation in return in that one day demolition of the plethora.)

So please do set out your thoughts below.

(And, in doing so, please do tag your comment with some name, rather than just "anonymous" - it makes it so much easier for others to respond.)

Update

See the Open Letter to Simon Singh at the great blog of The Heresiarch - where I have also commented.