Monday, 28 September 2009

My Freedom of Information Request to the GCC

For your interest I set out below my request to the General Chiropractic Council under the Freedom of Information Act 2000.

Hi there

I would like to make a freedom of information request to the GCC.

Please disclose to me all information which is held by the GCC in respect of the Happy Families leaflet issued and then withdrawn by the British Chiropractic Association. This information can include internal documents, correspondence with the BCA, and all metadata and other electronic information. The period for this information should date back to the GCC's first awareness of the leaflet.

In case you wrongly construe my request narrowly, I would like to remind you of your duty to assist under freedom of information legislation.

I would wish to make representations on the public interest in disclosure, in the event that any qualified exemption applies requiring a public interest balancing exercise. It is denied that there could be any public interest in non-disclosure should any qualified exemption apply, which is also denied.

By way of background, I write the "Jack of Kent" blog, of which you may be aware. Please assume I will follow this request with one asking about how this request is dealt with (including for disclosure of any correspondence with the BCA as a consulted interested third party under the statutory code of conduct).

My reason in making this request is that it is appropriate - and indeed imperative - that the GCC now places into the public domain all information which it holds relating to this controversial leaflet, especially information about the BCA's promotion and withdraw of the leaflet.


Sunday, 27 September 2009

Why Libel Law Is A Public Danger: A Practical Proposal For Libel Reform

There are important articles about public health and public safety, about science and technology, which are simply not being published or even written, just because of the English law of libel.

Libel seeks to protect reputation, but it can be used to discourage and prevent any critical contributions to important debates. Once the prospect is raised – or even merely feared – of a libel claim, the contribution to a debate will probably not take place. As a consequence, the output of that debate will be less useful and less efficient.

Public debate is debased; the terms of the debate are counterfeit and - indeed - bogus.

The mere existence of the English law of libel has a negative effect. This is called the chilling effect.

But the right to protect reputation should not be absolute. And indeed it is not in many areas: the defence of "qualified privilege" has expanded over the years to cover many situations where there is a public interest, regardless of whether the damaging statement can be "justified" or be deemed "fair comment".

Areas of qualified privilege include:

- reports to the police;
- reports to social services;
- complaints at work;
- regulatory communications.

And so on.

In these areas, an aggrieved potential claimant can only bring a case if malice can be shown - and the onus is on the claimant to show this.

It is in areas where there is no qualified privilege where there is the most severe "libel chill" - the chill caused of course because a libel action can be brought without proof of loss and the burden of proof is on a defendant to show justification or fair comment.

Where there is qualified privilege there is little or no libel chill.

Historically, qualified privilege often arose when there was a "common interest" between the person making a statement and the person receiving the statement. Other areas of qualified privilege were introduced by statute, for example covering certain official publications and reports.

In my view, each development of qualified privilege has been a response by the Courts or by Parliament to some new idiocy thrown up by the law of libel.

In 1999 the House of Lords departed from the narrow basis of qualified privilege where there had to be a close proximity between the maker of a statement to its reader and, in Reynolds, extended its protection to investigative journalists writing for the public as a whole, as long as certain demanding requirements were met.

In practice the Reynolds defence has been difficult to deploy by newspapers, as it takes arguably an unrealistic view of investigative journalism: for example, putting the statements to the subject before publication merely leads to a protective injunction.

Nonetheless, the principle remains - there are certain publications to the world which should be protected, without needing to show justification or fair comment, because the public interest in their publication outweighs the private interest in a reputation.

Perhaps there should be a general public interest basis for qualified privilege for general publications.

However, that may be too ambitious request. I would settle for there being qualified privilege in respect of matters of public safety and public health.

This would have protected the fine journalists who sought to expose the 2006 Trafilga oil scandal as well as Simon Singh's critique of chiropractic.

There is a clear public interest in statements being published to the general public which regard public safety and public health; so clear a public interest that it is difficult to conceive of a better example. If the statements are malicious, then the claimant can still sue; if the statements are merely incorrect or unfair then the claimant can still point this out - I would accept a statutory right of reply or a duty to make an appropriate correction.

But reputation should not be the primary issue in debates about public health and public safety.

Some things are just more important.

And so my practical proposal for libel reform is for Parliament to enact - either in a new Act or as an amendment to existing legislation - for a publisher of a statement concerning public health or public safety to have the automatic benefit of qualified privilege.

(This could perhaps be called the "Simon Singh Amendment".)

And then only the malicious will feel libel chill.

Saturday, 26 September 2009

Corporations, Libel, and the BCA: Why Personality Goes A Long Way

A company can sue for libel under English law.

Usually this will mean a commercially-active company, with shareholders and dividends. These are known as private or publicly limited companies. The word Limited - so familiar that it is hardly noticed - has to be added to the company name so as to signal to investors and customers that the company members - the shareholders - only have limited liability in the case of business failure.

The limited company exists separate from its (company of) shareholders. It can enter into contracts and own property; it will legally exist, even if every shareholder died the next day; and it can sue and be sued, and also be prosecuted as a defendant under criminal law.

All this because a company in law is a corporation, and so has legal personality; and in law, as with dogs, personality can go a long way.

But there are other corporations which cannot sue for libel.

A local authority is a corporation. Like a limited company, it can contract and own property; it exists separate to the councillors and the officers; it can (generally) sue and be sued, and sometimes even prosecuted.

However, a local corporation cannot sue for libel, and nor can most other statutory corporations discharging public functions.

This is because of an important House of Lords decision reported in 1993.

Derbyshire County Council had sued the Times Newspaper for libel. As a corporation under English law, it was presumed that it could sue for libel. It had personality, and it had a reputation.

However, the House of Lords held - as a matter of principle - a local authority could not sue for defamation.

For a public body to do so would be an unwarranted and undesirable limitation upon freedom of speech.

This was not even a "defence" - the right to sue did not exist in the first place.

However damaging the allegation - and it was not doubted that a local authority had a reputation which could be defamed (ie, de-famed, or damaged) - the public interest meant that such actions could not be brought. And this ruling has been taken to mean by lawyers that no public authority - not just local authorities - can sue for libel.

And if a libel case cannot be brought, they cannot be threatened; and so there is not even a chilling effect.

Accordingly, I can type the following about a particular statutory corporation without any fear whatsoever:-

The General Chiropractic Council happily promotes (and regulates) bogus treatments for which there is not a jot of evidence.

I am safe because the GCC are a statutory corporation discharging a public function, and so I have the protection of the Derbyshire rule.

All this of course brings me to the British Chiropractic Association.

The BCA are suing Simon Singh for libel for saying about the BCA what I have just said about the GCC, but the BCA can sue because they are a company.

However, perhaps crucially, they are not a limited company. They do not have shareholders; they do not pay dividends; they do not make a commercial profit. They do not need to put the word "Limited" at the end of their name. It legally exists for a non-commercial purpose.

The BCA are a Company Limited By Guarantee. Their company details are here.

(It is interesting to read the examples in Wikipedia of other companies limited by guarantee.)

Such legal entities exist so that charities and non-profit entities can still have legal personality: so they can contract and hold property.

But should such entities really be able to sue for defamation? Or to have the benefit of a chilling effect which comes from being able to sue?

On one hand, they are indeed corporations with a reputation.

On the other hand, they are corporations legally structured so to give effect to non-commercial activities, usually promoting a public or charitable good. They are classed as "companies" really just as a matter of legal convenience.

Some may think that this makes companies limited by guarantee more akin to the public authorities barred from suing under the Derbyshire rule, rather than to commercial companies with shareholders and dividends.

There is (as far as I know) no legal authority directly on this point.

Simon Singh had asked the High Court to rule on this in the preliminary hearing, but there was an adjournment immediately after the unfavourable ruling on meaning.

The issue is therefore still entirely open, and so even if Simon Singh loses the Court of Appeal application on the meaning point, he can still ask for a High Court ruling on this "corporate point" - and in turn appeal any adverse ruling to the Court of Appeal.

The BCA do not really have a trading reputation to protect; they have legal personality just so to promote (happily or otherwise) chiropractic and their member chiropractors, both of which are health matters for legitimate public debate and scrutiny.

But if the House of Lords is correct in Derbyshire, why can I not then criticise the BCA when I can happily criticise the GCC for exactly the same failings?

Is this a bogus distinction?


Please use a name when posting, as it facilitates references by others in the discussion. Posting as "Anonymous" is discourteous and simply anonymous posts may not be approved for publication. Thank you.

Tuesday, 15 September 2009

Damien Hirst, Conceptual Art, and the Law

One triumph of conceptual art is to have answered that pesky question What is Art?

For the conceptual artist, Art is simply something presented as art in an art gallery. It consists of an object - any object will do - and a printed caption, put together in a whitewashed room.

I suspect the printed captions and the whitewashed rooms will come to be seen by future generations as clich├ęs of this art movement, just as with the tiresome forms in Mannerism or the stark colours of the Pre-Raphaelites.

Conceptual art will then be seen - rightly, I think - as an effect and a function of the emergence of dedicated, well-lit galleries in the post-war world. Once these spaces became available, and the convention took hold of presenting an object in that space with a caption and calling it Art, I suppose conceptual art was a near-inevitability.

Damien Hirst has done well out of this artistic movement. He is not known for the galleries or for the printed captions, but he does create some of the objects - perhaps the least important component of conceptual art.

Hirst has been in the news recently, deploying the law: full details are here.

In summary, Hirst used both civil law and criminal law against a nineteen year artist called Cartrain. The civil law used was the law of copyright or design infringement and the criminal law used was theft.

Hirst of course cuts a ridiculous figure. Here, one cannot really improve upon Charlie Brooker in The Guardian:

"Overvalued, irksome, conceited, pudge-faced, balding, boring, awful celebrity art nob Damien Hirst has apparently become embroiled in a ludicrous feud with a 19-year-old graffiti artist called Cartrain. Hostilities erupted in 2008, when Cartrain created a sarcastic collage that included an image of Hirst's stupid bling-encrusted skull "artwork" (the one that reportedly sold for £50m at auction, although that figure is disputed by virtually anyone who still retains some degree of faith in humankind).

"When Cartrain's humorous collages were put up for sale online, Hirst reportedly complained to the Design and Artists Copyright Society. The website selling Cartrain's works buckled under legal pressure and surrendered the collages, along with an apology.


"Anyway, so far, so 2008. But the Hirst-Cartrain battle resumed in July this year, when the latter strolled into Tate Britain and allegedly removed a box of pencils from Hirst's art installation "Pharmacy". Cartrain then created a mock ransom note, demanding the return of his collages in exchange for the pencils. If the artworks weren't given back, then the pencils would be "sharpened".

"All rather daft and annoying. But a few weeks ago, Cartrain was arrested by Scotland Yard's art and antiques squad and told that the pencils had been valued at £500,000. The officers also initially arrested Cartrain's father, on the grounds that he was "suspected of harbouring the pencils".

(Er, where was The Guardian's libel reader when we needed him/her? Imagine what Simon Singh could have got away with...)

From a legal perspective, Hirst appears generally to be in the right. The theft seems obvious, even if the police involvement is needlessly heavy-handed. The copyright or design infringement may be less clear-cut, as does the apparent remedy of forced delivery-up of the infringing pieces, but Hirst is (on balance) within his legal rights.

But - as with another legal manoeuvre we can all think of - his use of the law here is misconceived. The issues involved really could be better dealt with by other means.

However, one cannot be surprised by Hirst.

I see this readiness of a conceptual artist to use the law in such a misconceived way as similar to that of some CAM practitioners and various religious enthusiasts.

At least neither Cartrain nor Charlie Brooker accused Damien f happily promoting bogus art without a jot of talent.

(And nor do I...)

Sunday, 13 September 2009

That Bogus Quote

Simon Singh's now immortal quotation about the British Chiropractic Association has been repeated on a number of places on the internet; however, my favourite so far is here by Crispian Jago.

The other chaps featured are, of course, Tim Minchin, Richard Dawkins, and Ben Goldacre.

Brilliant stuff.

Postscript: also posted today is astonishing footage of Crispian's (brave) experiment on homeopathy, here.

Derren Brown And His "Legal Reasons"

Imagine some anonymous but well-spoken voice - on television or on the wireless: "we cannot broadcast the statement for legal reasons".

Imagine next the cheap-ink newspaper report: "the man, who cannot be named for legal reasons...".

What are these mysterious legal reasons, which have so much power over what we see, hear, or read?

Well, legal reasons do not actually exist, at least not by themselves.

Legal reasons is - or should be - a simple descriptive term. Any time this phrase is used, it should be possible to be more precise.

This precision should both in terms of (1) what law (libel, copyright, contempt of court, and so on) and (2) what legal instrument (statute, contractual obligation, court order, and so on).

Any person who mentions legal reasons who cannot also state what law and what legal instrument is either ill-informed or misleading you and others.

However, the law does have this mystique.

The mystique is well portrayed in literature. In Kafka's The Trial, poor Josef K never finds out what is going on; and in Bleak House, Charles Dickens depicts Jarndyce v Jarndyce as an essentially incomprehensible case. In both cases (literally), the application of law has drastic personal consequences, but it cannot be understood.

When many hear the phrase for legal reasons they just nod and defer.

I was prompted into thinking about this by Derren Brown's seeming prediction of the National Lottery results last week. See it here.

Insofar as this daft exercise really needs a rational explanation - and as the forecast was not independently verified before the prize draw, almost any explanation is more sensible than the one eventually offered by Brown - see the fine analysis by Poel James here.

However, what interested me is how Brown used law and legal reasons as part of the various misdirections to throw the audience.

I set some of these out below in order with a comment on each one; my timings are against the YouTube video here.

(In doing this, I am not saying I am an expert in current national lottery law, but I am aware of the general statutory/licence/contract regime in which the broadcasts take place.)

0:38 "I've done nothing illegal..."

This sows the legality seed. We are all sure it is correct, and so we begin to accept what he says about law to be correct.

0:46 "...and for security reasons..."

Which are of course unspecified; there is no reason why security reasons dictate that only him and two cameramen are present. (Indeed, there is the question of who put the balls there in the first place...)

But this is so far plausible and our trust is still in place.

0:59 "We can't show more than a couple of minutes of the BBC, for legal reasons..."

This is legally plausible; not least that broadcasting BBC on Channel 4 would probably be a copyright infringement unless there was a licence. It could also be a tortious interference of the contractual relationship between the BBC and Camelot allowing BBC exclusive rights to broadcast the result (in other words, a third party can be sued if he/she stops two others performing a contract between them).

1:15 "We've spoken to Camelot, we've had a meeting with Camelot..."

This is all plausible detail; and note the use of the inclusive we.

1:23 "..the BBC have a legal right to announce the lottery numbers first, before anybody else does..."

This is undoubtedly correct, in that the contract between BBC and Camelot would have such an exclusivity provision. However, this contract would not bind Brown.

1:27 ", um, because of that I can't show you the numbers until just after the lottery has been announced, if that makes sense."

This is, in my view, completely wrong. But this is the statement which all the plausible mentions of law have led up to. And so the viewer is ready to accept it.

There is actually no legal restriction on him whatsoever broadcasting a forecast (just as there is no legal restriction on anyone playing the lottery making a forecast).

Brown is simply not announcing the numbers, unless of course he knew the numbers in advance (ie, that the lottery was rigged).

There was no simply legal reason for Brown not to provide his lottery forecast before the draw.

Note here how Brown's hesitancy (" that makes sense") cloaks this legally incorrect statement.

3:22 "Again, I've done nothing illegal..."

Again, this is surely correct and so provides our final reassurance.

Without the "legal" explanation for the lack of prior forecast, Brown's exercise would have been even less convincing; indeed it would have missed its essential premise.

He has of course resorted to legal reasons before in his misdirections; in the famous Russian Roulette routine he made out that British gun laws meant he had to go to Jersey (where it was, er, also unlawful).

Derren Brown is a master of misdirection; but he is also a graduate of law - he read Law and German at Bristol University. More than anyone - perhaps other than the great jury advocates at the criminal and libel bar - he knows how law and misdirection can be effectively mixed.

I would say that Derren Brown is thereby a great loss to the legal profession; but I cannot (for legal reasons).

Saturday, 12 September 2009

Making Tea For Alan Turing

One of the most brilliant people I have ever met said that - had she been required to do war work - she would have happily spent it making tea for Alan Turing.

Turing was born in 1912, and so he could well have lived into our own times (he was born the day before Brian Johnston, the cricket commentator).

He could even be alive today, celebrated as a national treasure for his incredible contributions to the war effort, to mathematics, and to computer science.

However, Turing died in 1954. The circumstances pointed to suicide (though some disputed this). He was found dead with a part-eaten apple, laced it seems with cyanide. The choice of an apple may be significant, as it has been claimed that his favourite fairy-tale was Snow White.

Alan Turing's death in turn has become significant. In essence: he died because he was a homosexual; he died because of the vile laws against male homosexuality which were then in force; and he died because of the misconceived "treatment" which was then deemed appropriate (by some scientists and medical doctors, sadly) for the "illness" of homosexuality.

In 1952 Turing reported a burglary. In the investigation and case which followed the police became aware that Alan Turing had homosexual relationships.

Technically, homosexuality was not a crime - at least not directly.

Buggery was a crime, under the 1861 Offences Against the Person Act (which is still actually in force for Grievous Bodily Harm, Actual Bodily Harm and - oddly - Bigamy, which the law also regards as an offence against the person). But few men were actually tried for or convicted of the crime of buggery.

And "gross indecency" was a crime.

Turing was prosecuted under the notorious section 11 of the Criminal Law Amendment Act 1885. This was the same offence under which Oscar Wilde was tried.

Under section 11, an offence of "gross indecency" could be committed by two male persons, either in public or in private. This was taken to mean by the police and the courts to mean all consensual intimate sexual behaviour between men.

Section 11 was not a deeply considered piece of legislation; indeed its enactment was almost an accident. In one late parliamentary sitting, a (so-called radical) MP proposed an amendment which was accepted almost on the nod by the frontbench. There was no debate, either in parliament or otherwise.

Nonetheless, section 11 would criminalise all meaningful male homosexual intimacy for eighty years. Rather than the remote threat of a prosecution under the buggery offence, any evidence or admission of physical closeness - even in private - would lead to prosecution, a sentence, and a criminal record. It was regarded as the "blackmailer's charter".

Alan Turing was charged; he admitted his guilt and was convicted. Instead of imprisonment, he was able to opt for "treatment". He was given hormones to suppress his libido; the side effects were breast development and depression.

In effect, Alan Turing was chemically castrated.

Alan Turing was a hero and a genius, but this "treatment" was also inflicted on many other gay men prosecuted under this legislation. Turing's awesome achievements do not by themselves warrant him receiving an apology for this shameful official conduct; there should be an apology for every gay man who was prosecuted.

All of them deserved better.

It was good that the person who wrote Gordon Brown's apology noted this, though only in passing:

"While Turing was dealt with under the law of the time, and we can't put the clock back, his treatment was of course utterly unfair, and I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him. Alan and the many thousands of other gay men who were convicted, as he was convicted, under homophobic laws, were treated terribly. Over the years, millions more lived in fear in conviction."
[Emphasis added - and note how Turing becomes Alan in two sentences!]

Of course, a posthumous apology or pardon is always a mere gesture.

Nonetheless, the greatness of Turing - and the undeniable sheer importance of his work in the war and in computers and the appalling injustice done to him - must force anyone to reconsider using the law to criminalise homosexuality, or to regard homosexuality as to be treated as an illness.

Such people still exist.

The Prime Minister's apology - an official acknowledgement of official wrongdoing - makes it just that more difficult for such bigots to prevail again.

The apology also reminds us just how recent "modern" times are.