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Tuesday, 27 October 2009

Harry Frankfurt on Bullshit

With a tip of the hat to the estimable Simon Perry, this is a wonderful quotation on bullshit by Princeton philosopher Harry Frankfurt:

"It is impossible for someone to lie unless he thinks he knows the truth. Producing bullshit requires no such conviction. A person who lies is thereby responding to the truth, and he is to that extent respectful of it. When an honest man speaks, he says only what he believes to be true; and for the liar, it is correspondingly indispensable that he considers his statements to be false. For the bullshitter, however, all these bets are off: he is neither on the side of the true nor on the side of the false. His eye is not on the facts at all, as the eyes of the honest man and of the liar are, except insofar as they may be pertinent to his interest in getting away with what he says. He does not care whether the things he says describe reality correctly. He just picks them out, or makes them up, to suit his purpose."

Whenever I encounter quacks or bad psychics or similar, I very rarely believe they are liars.

After all, there must be easier and more lucrative ways of being dishonest.

So I prefer Professor Frankfurt's approach.

It does seem to explain a lot...


[This topic has also been covered with more erudition and insight by the wise old duck Le Canard Noir.]

[The full Frankfurt article is here.]

Monday, 26 October 2009

The BCA and Ancient History

Just a quick link to this excellent post by Alun Salt.

For those followers of this Blog who enjoy reading about the British Chiropractic Association's misconceived libel case and their ongoing hapless press releases, Dr Salt's amusing examination of their claims as to the history of spinal manipulation will be a joy.

Saturday, 24 October 2009

The Legal Scholarship of Dr Lionel Milgrom

Dr Lionel Milgrom is a well-known writer on homeopathy, especially in his ongoing efforts to use the outward form of academic writing (lists of qualifications, footnotes, etc) to promote homeopathy as having a scientific basis (in quantum physics) and as a useful intervention in primary health care.

I have previously been skeptical and mildly critical of Dr Milgrom in this enterprise, see my blogpost here.

However, as I am not a scientist (or "IANAS"), it was not for me to directly critique Dr Milgrom's rather ambitious claims or his credibility as a scientific scholar.

But Dr Milgrom has now ventured, it would seem, into legal scholarship.

The Journal of Alternative and Complementary Medicine has published an article by Lionel R. Milgrom PhD, MARH, MRHom, FRSC, entitled:

CAM, Free Speech, and the British Legal System: Overstepping the Mark?

The introduction to the article is here. I also have been provided with a pdf of the original article by two kind sources.

With this seeming venture into legal scholarship, Dr Milgrom has made it possible for one to assess his basic competence as a scholar.

By basic competence, I mean an ability to correctly state the relevant facts and materials, and an ability to properly use footnotes, sources, and evidence.

First, the title and the content of both the abstract and the article affirm this article is intended to be taken seriously as a contribution to the discussion of law.

(Indeed he expressly states in the abstract that he is examining defamation law and freedom of expression, and is exploring the ramifications of the tension between the two.)

However, one must quickly note even with the title that there is no such thing as a British legal system; what Dr Milgrom is seeking to discuss is the English law of libel (shared only with Wales; Scotland and Northern Ireland have their own legal systems).

Moving on from the title, we come to the initial sentence of the abstract:

"The British Chiropractic Association recently won a libel case against the science writer and CAM "skeptic" Dr Simon Singh for publishing an article in a British newspaper in which he accused them of promoting "bogus" treatments."

This is, of course, factually incorrect.

The BCA has not won a libel case.

However, sometimes abstracts can be hasty summaries, and so we should look at what the article actually says on this point.

After setting out (in a significantly incorrect way, as we will see below) the legal case of the BCA, Dr Milgrom writes:

"The judge agreed with this argument, awarding the BCA substantial damages."


This is more incorrect than the statement in the abstract, and it is wrong in that:
- there has not been an award of substantial damages;
- there has not been an award of any damages;
- there has not been the award of any legal remedy;
- there has not been a judgment of the court which would give rise to the award of any legal remedy;
- there has not even been a full trial of the case for which there can be a judgment;
- a full trial has not even been listed; and
- the case is still at the preliminary stage, which is adjourned pending the outcome of Simon Singh's appeal of the ruling on meaning.

As Dr Milgrom's factual assertion here is a basis of his article, then his error rather undermines the article as a whole.

However, Dr Milgrom did not just make this careless factual error, he rested it on the authority of a footnote.

The footnote purports to be a British Chiropractic Association online document and this URL is given.

As you will see, the URL does not lead to any particular press release, but the BCA's press release on the ruling in the preliminary hearing is here.

You will see that the BCA press release states that the case is ongoing, the the trial is yet to be concluded, and that the ruling was on meaning.

You will also note that there is no mention of damages, let alone substantial damages. Although the press release itself contains errors, it is either correct or silent on the points which relate to Dr Milgrom's assertion.

So Dr Milgrom's entirely incorrect factual statement is attributed in a (vague) footnote to a source which in turn does not support and actually counters the statement made.

And, in addition to this crucial error, the remainder of the article contains a number of mistakes.

One example is the supposed description of the BCA's case which precedes the howler about substantial damages.

Here Dr Milgrom writes:

"...the BCA went to court, arguing that the term "bogus" constituted a slur on the character of chiropractors, because it implies chiropractors are knowingly mendacious".

This is incorrect, for if the BCA had adopted this stance the libel claim could not have even been launched.

The BCA's case is (necessarily) that Simon Singh defamed the BCA itself. The BCA is a legal person as a corporation and, as such, has a reputation which can be protected by the English law of libel.

If Simon Singh was instead attacking chiropractic generally, and his "slur" was against unnamed and unidentifiable chiropractors, then the BCA would not actually have a case to bring.

Indeed, Dr Milgrom has (unwittingly) set out one part of Simon Singh's defence: that the meaning of the original Guardian article does not defame the BCA.

Dr Milgrom's other mistakes in this four page article include repeatedly confusing the law of defamation with the law of privacy; incorrectly stating that privacy law may lead a court to impose "severe financial penalties" - even though penalties are matters for criminal and regulatory law, and not the laws of privacy and libel; wrongly stating four senior barristers to be High Court judges (including Simon Singh's own QC); and even implying that the BCA case itself is a privacy case.

One can only speculate as to why Dr Milgrom wrote and submitted such a thoroughly inaccurate and unscholarly article purporting to be a scholarly discussion of the tension caused by defamation law and of its ramifications.

It is also disappointing and concerning that the Journal of Alternative and Complementary Medicine allowed such an article to be published without basic fact checking or, it would seem, arranging adequate peer review by anyone familiar with the legal case being discussed or having an elementary understanding of English defamation law.

But, whatever the motives and practices which led to this article being placed into the public domain, it serves in my view to discredit the scholarly pretensions of Dr Lionel Milgrom and the Journal of Alternative and Complementary Medicine.


COMMENTS MODERATION

As always, please use a name; purely anonymous comments will not be published.

Tuesday, 20 October 2009

Effects of English Libel Law on the Reporting of Parliamentary Proceedings

I have been been given this Press Release by the office of Dr Evan Harris MP (the MP for Science, Secularism, and Skepticism) in respect of tomorrow's parliamentary debate.

I am delighted to publish it in full.

If you can, do go along to the debate - it is not in the main House of Commons, but in its rather comfortable and nifty "Westminster Hall" venue, also located in the Houses of Parliament.

In any case, do write to your MP to get them to go and support Evan Harris in this debate - a guide to how to do this is provided by Simon Perry here.

_____________________________

PRESS RELEASE

Parliamentary ‘gag’ – MPs will ask Government to act

In the aftermath of Carter Ruck’s alleged attempts to gag The Guardian from reporting details of parliamentary proceedings, MPs will be debating the “Effects of English Libel Law on the Reporting of Parliamentary Proceedings” tomorrow in Westminster Hall, from 2:30 to 4pm.

The debate was secured by Lib Dem Dr Evan Harris MP.

In the debate, Dr Harris will:

- Criticise Carter-Ruck solicitors for informing The Guardian that reporting parliamentary proceedings would be a contempt of court, without qualifying it with a view that they now seem to agree with – that no court would consider or enforce such a publication as a contempt.

- Call for all future court orders and injunctions which prevent publication of a matter to make clear that the reporting of parliament is not affected in any way.

- Urge the Government to change the law so that so-called “super injunctions” which prevent the repeating of the fact that there has even been an injunction are not issued where there is a genuine public interest in the public knowing what is going on.

- That English libel laws need to be re-balanced in favour of a responsible defendant, to enable public interest defences to be more effective, and to end the status of London as the libel capital of the world.

Speaking before the debate, Dr Harris said:

“There is a lot of concern in Parliament and in the media over the impact of English law on freedom of expression, but the people who should be most concerned are the general public. Powerful interests are able to exploit our legal system in to prevent public interest matters – such as the dumping of toxic waste, or the evidence for the benefit of chiropractice on children’s health – being discussed.”

“The Government needs to do something about this instead of letting the public continue to be blinded by secretive injunctions and draconian libel suits.”

ENDS


Notes to editors:

1. Details of the injunction preventing discussion of the Minton report can be found here: http://www.guardian.co.uk/world/2009/oct/16/carter-ruck-abandon-minton-injunction

2. Details of efforts by the British Chiropractic Association to prevent discussion of their claims that chiropractic can treat childhood asthma, colic and ear infections can be found here: http://www.senseaboutscience.org.uk/index.php/site/project/333/

3. In a letter to the Speaker, Carter Ruck suggested that the Westminster Hall Debate secured by Dr Harris might be sub judice, and therefore inappropriate: http://www.carter-ruck.com/Documents//Letter-Right_Hon_John_Bercow-141009.PDF

4. Prior to the debate Dr Harris convened cross-party meetings with both The Guardian and Carter Ruck.

_____________________________

Monday, 19 October 2009

Are Superinjunctions Always Wrong?

A superinjunction, explains my learned friend Mr Charlie Brooker, can be defined as follows:

"A super-injunction is an injunction that prevents you from telling anyone that an injunction exists."

I would like to explain why it may be that such superinjunctions may be appropriate for the court to grant in certain circumstances.

In doing so, I would like to set out two situations [A] and [Z] which may serve as parameters of this discussion.

Situation A

An international multimillion corporation seeking a superinjunction to prevent publication of the information that there is an injunction preventing publication of a professionally-prepared report in respect of a major incident which involved the health and safety of large numbers of people.

Situation Z

A non-public figure, perhaps involuntarily caught up in a news story (such as Colin Stagg, Robert Murat, a former boyfriend of Stepehen Gateley, or a relative of a crime victim) seeking a superinjunction to prevent publication of the information, which has no public interest, that a prior injunction exists which prevents disclosure of information about their sexual preferences or practices.


Like any liberal person, I would not think Situation A - the Trafigua scenario - warrants a superinjunction. Every element of that situation tells against a court exercising its discretion to grant such a super injunction.

But what about Situation Z?

Well, in my view, purely private information, where there there is no public figure involved or public interest in the information, should have the protection of a superinjunction.

It would defeat the very privacy rights of that individual for a newspaper - and lets imagine this information now in the hands of Jan Moir rather than Alan Rusbridger - to publish that there was an injunction about someones sex life, even if the exact details of that sex life are not actually published.

Superinjunctions are quite novel, brought about mainly by the Human Rights Act 1998 and giving of effect in English law of Article 8 of the ECHR, which protects privacy.

In my view, measures should be adopted by the court, or be legislated for by Parliament, which makes it that such superinjunctions are available in situations towards Situation Z, and not Situation A.

For, in Situation Z, thousands of well-intended online complaints to the PCC are simply too late; the dignity and privacy of the non-public (and human, not corporate) figure on a matter of no public interest have already been destroyed by the likes of poisonous Jan Moir.

Just imagine Jan Moir with the information that there exists an injunction about YOUR sex life...

Sunday, 18 October 2009

In Defence Of Lawyers

Last week a "Flash Mob" demonstrated outside the offices of that well-known law firm, Carter-Ruck.

I know at least a couple of people who went along to it. However, I see the protest as misconceived.

The people who should have been protesting outside those offices were Trafigura executives, for they may have something to protest to Carter-Ruck about.

And the Flash Mob in turn should have been protesting outside the head office of Trafigura, or the lawcourts, or Parliament.

For, although it is always important to blame and criticise lawyers, it is also important to blame lawyers for the right things.

I know many liberal and critical thinkers who suddenly become thoughtless and lazy the moment they realise they can blame lawyers.

This approach may be satisfying and fun, and usually prompts an easy laugh, but it is not an example of liberal or critical thinking.

First, for every lawyer one wants to blame, there is a client. In this relationship, the lawyer is not necessarily passive, and one can indeed imagine the crafty lawyer leading a client on in a misconceived direction. But, the ultimate position is the same: a lawyer carries out the instructions of the client.

And here we must note that Trafigura is not a shrinking and impressionable litigant in person; it is a multimillion pound international corporation. Even if Carter-Ruck were able to provide options and tactics which Trafigura executives and in-house counsel did not think of themselves, Trafigura knew exactly what it wanted to achieve.

Second, for every legal manouvre one disdains, there is the law. Again, this is not to say that the law is entirely prescriptive. The crafty lawyers by definition know how to craft the law. But a lawyer and client can only get away with what the court will let them, and it is the court that enforces and applies the law, and not the lawyers.

And it is here we must note that (to my reckoning) at least three different High Court judges upheld the superinjunction granted in respect of the now published Minton Report. In obtaining this injunction, Carter-Ruck were presumably carrying out their client's instructions and ensured their client had whatever protection of the court's jurisdiction which their client was (it would appear) entitled.

The known unknown in all this is the exact legal advice which Carter-Ruck gave to Trafigura. For clients, especially those with determination and anxiety, can go flatly against legal advice.

So, because of this sometimes triangular relationship between lawyers, clients, and the law, it can sometimes be difficult to identify the exact target for blame in any given legal controversy.

If Carter-Ruck had not acted for Trafigura in this matter, I can immediately think of a dozen other law firms that would have done.

So why should Trafigura executives perhaps go and protest outside the offices of Carter-Ruck? Especially as it may well be that Carter-Ruck advised against a course of action, and their client instructed them to do it anyway.

Well, it does rather appear that Carter-Ruck, in carrying out their client's instructions, were tactically outwitted and wrongfooted all through the Trafigura affair by The Guardian.

And a basic rule of UK media litigation is not to be outwitted and wrongfooted by The Guardian.

But is it my suggestion that lawyers are never really to blame?

Are lawyers merely servants, who are only carrying out orders?

And, are they to be criticised only if they are incompetent in executing those orders?

It was contended on Twitter this week that only carrying out orders is the Nurembourg Defence and that lawyers accepting instructions are in the identical moral position.

(My immediate rejoinder to this was that it actually took lawyers of the great calibre of Sir David Maxwell-Fyfe and Sir Hartley Shawcross to destroy those defences when they were spuriously employed. Indeed, it was watching footage Maxwell-Fyfe's destruction of Goering in cross-examination that first made me want to be a lawyer.)

I do not accept that the moral positons are identical.

Within a liberal democracy, where there is the rule of law, every party to any legal case is entitled to legal advice and representation. This even includes the Crown being properly advised and represented when prosecuting sensitive criminal cases; it even includes international oil firms and chiropractic associations.

Any person - human or corporate - in a liberal democracy is entitled to the protection and enforcement of whatever legal rights they may have. This is the fundamental right of access to a court and as such is a neccessary component of the principle of justice.

(This principle may not have the same application under a totalitarian regime, where there is no democracy or rule of law, and so counter-examples from such regimes do not logically diminish this principle.)

And the complexity of both substantive and procedural law means that the right of access to a court is meaningful often only if a person has legal advice and representation. The person may not want such advice or representation, but they are entitled to have it.

In a liberal democracy, it is not for lawyers to decide whether a person has effective access to a court for determination of their rights and obligations.

All this can be perhaps illustrated by a recent example.

Someone [K] was accused of a very serious matter; it was a health and safety issue. In confidence, so as to properly prepare their defence, [K] went to some specialists for advice, which is entirely proper. One specialist provided an adverse analysis on incomplete information; but many other specialists did not. Clearly that one adverse but provisional report would, if published and loudly publicised, prejudice any trial of [K]. And so lawyers were rightly asked by [K] to prevent publication of this confidential report so as to ensure that any trial of [K] was fair.

There is perhaps nothing that unreasonable in any of this; but this is actually one way of characterisng the Trafigura affair.

In a liberal democracy, if the role of lawyers is to advise and represent their clients, the role of the media (including bloggers) includes ensuring that matters of public interest are put before the public; but it is not for the former to do the work of the latter.

The legal profession is to blame for many things, but not for everything.

It was not a lawyer that dumped toxic waste and wanted no one to know. It was not Carter-Ruck that granted and upheld the superinjunction, but the High Court applying the law as it currently stands on at least three occasions.

Don't be fooled by those who will encourage you to concentrate on the moral role of the lawyer in such matters; think critically, and you may find it a little more complicated than that.



COMMENTS MODERATION

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Saturday, 17 October 2009

English Courts And Free Speech: A Paradox

At the end of a remarkable week for English law and freedom of expression, one is rather left with a puzzle.

Why are the English courts heroic and liberal when prising information - arguably of the most sensitive kind - from the government, when the same courts are so complacent and illiberal when preventing publication of information belonging to corporate entities?

Here I am thinking of the sheer legal brilliance of the judgment in the Binyam Mohamed case, where the judges - with great intellectual skill - demolish the submissions of the British government on the disclosure of US intelligence information; and I contrast this with what lawyer Mark Stephens rightly describes as the practice of English courts easily letting super-injunctions go through on the nod.

(Hear Mark Stephens on this podcast with fellow - and very highly recommended -legal blogger Charon QC.)

And so we have the remarkable situation where an English court will throw its weight against the publication in England of corporate information already in the public domain (albeit Wikileaks), and simultaneously in favour of disclosure of undoubtedly secret information known only to very few.

Had the Minton Report been provided to the UK government in strict confidence by the US government, it would appear that the English courts would this week have allowed its disclosure; but not if it was private information of a company to be published by The Guardian claiming the public interest, even when it was actually available to the world.

There are many reasons for this paradox, some of which come down to technical points as to the types of law and procedure involved; but the one which comes first to my mind is that the English courts are not (yet) in the habit of placing sufficient and consistent emphasis on the right to free expression.

And on this point, please kindly click over to the The Guardian website to see my first article for that great liberal institution, where I discuss the issue of free expression and English courts in the context of libel reform.

Thursday, 15 October 2009

BCA Defame Simon Singh

In an incredible press release published either yesterday or earlier today, the British Chiropractic Association made the serious and completely groundless accusation that Simon Singh had been motivated by malice in writing his original article.

This press release has now been hastily and silently switched for a modified one which does not make this significant allegation of improper conduct. However, the hardrives of dozens of Twitterers will evidence that this allegation was indeed published.

I have emailed the BCA and their PR company for an explanation of this false accusation, which had not previously been part of the BCA case.

Indeed, Lord Justice Laws had been careful to note in his judgment yesterday that there had been no allegation of malice or question of bad faith.

If Simon Singh now chooses to sue the BCA they will have to justify their allegation as a fact. They would not be able to do so.

And the BCA will know that what they intended to write will not help them.

After all, as Mr Justice Eady himself pointed out in the original adverse ruling on meaning (paragraph 11):

"As so often in libel cases, it is necessary to focus on what was actually published rather than on what might have been published."

It may be that Simon refuses to counter sue and allows the BCA to happily continue with their case. That is entirely a matter for him.

But, in my view, the moment he chooses to do so will surely be when this case ends.

That really was a misconceived press release.


COMMENTS MODERATION

No comments on this post as I am awaiting BCA response to my email.

BCA Now Alleging Malice By Simon Singh

In a press release just issued, the British Chiropractic Association has alleged that Simon Singh was motivated by malice in his original article.

This is a shocking and serious (and indeed defamatory) accusation, which the BCA have never before made and has not been any part of their case to date.

If Simon is held to be malicious then this means that he would lose various defences available to him such as fair comment and also any qualified privilege.

This accusation of malice is also counter to the decision given yesterday by Lord Justice Laws, where he expressly noted that the BCA had not raised any question as to the good faith or motivations of Simon Singh.

It may be that this accusation is a slip of the keyboard (remember plethora?), but if it is not - and if it remains uncorrected - then the BCA are seeking to develop a significant new line of attack in their case against Simon Singh.


COMMENTS MODERATION

I have emailed the BCA and their PR company for urgent clarification. Until I receive that I will not approve comments for publication. I do apologise.

Wednesday, 14 October 2009

Permission Granted

Simon Singh was today granted permission to appeal the High Court ruling on meaning, a meaning which I described in May as astonishingly illiberal.

The meaning is that of the following passage in the original Guardian article:

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

Simon applied for this permission so he can appeal the adverse ruling, which had held that in that passage:

- he had made factual statements rather than mere comment (and this is legally important as factual statements need to be justified, and this is difficult, whilst comment only needs to be shown to be fair); and

- the factual statements meant that the BCA were knowingly dishonest (and this would be, in my view, impossible to prove and was not Simon's intention nor, again in my view, what he actually said).

But to even make this appeal Simon required permission. This was essential, for such an appeal is not an automatic entitlement and so one has to apply for it.

The test for permission to appeal here was whether Simon has an arguable case to appeal the adverse ruling.

Simon had lost his two previous two applications for permission to appeal - the first at the initial High Court hearing and the second in July "on the papers" by another Lord Justice of Appeal.

Both refusals were to the effect that Simon did not have an arguable case.

After two such refusals the main options for Simon were to either proceed to trial (or settle) on the basis of the adverse ruling on meaning, or to make his third and final application by way of an oral hearing before the Court of Appeal.

He chose to go for the third, oral application.

This was partly because any eventual application to the European Court of Human Rights may formally require him to have exhausted his domestic appeals; and partly - and most commendably - because he simply believed it was right that he should have the chance to defend his article on the basis of what he believed he had said (and what almost everyone else seems to think he said).

Nonetheless, no lawyer would have put his chances for this application at more than 50:50, even for limited permission to appeal only the meaning of dishonesty so that he could mount a less onerous justification defence.

This was because the Court of Appeal is extremely reluctant to overturn the preliminary rulings in cases currently before the lower courts, especially appeals concerning meaning in defamation cases.

So even without all the special features of this case, this was just not the sort of application in which one tends to succeed.


Therefore our hopes were not high at 10.00 this morning in Court 75, deep in the Hogwartian maze of the Royal Courts of Justice, a courtroom accessible only through countless corridors and numerous cold stone stairwells.

The British Chiropractic Association did not attend, and so the parties' and lawyers' benches in court were half empty. The BCA did not need to turn up, for it was Simon's application, and not their application. However, this imbalance did give the courtroom a strange feel, especially as the public gallery was packed with Simon's cheerful supporters.

We waited for the appeal judge, Lord Justice Laws, one of the most highly-regarded and senior members of the Court of Appeal, with a formidable intellectual reputation.

When the hearing commenced it quickly became apparent that no further submissions were to be required from Simon's barristers. This was a good sign.

Lord Justice Laws then announced that the application would be granted.

He proceeded to give a very carefully worded judgment, which is characteristic of Lord Justice Laws, and so it is important to wait for the formal publication of the judgment, which should be in a few days.

That said, four aspects of the judgment immediately struck me as interesting - but please do note that my observations here are subject to the actual published judgment.

First, Lord Justice Laws was careful set out in full the paragraph which followed the alleged libel in the passage, where Simon explains his use of the word "bogus". It may be recalled that this paragraph was not expressly mentioned by Mr Justice Eady in the initial ruling.

Second, Lord Justice Laws explicitly mentioned Article 10 of the European Convention of Human Rights (which protects free expression) and the requirement under Article 10 for a balancing exercise. It appeared to me - and I will be interested to read the judgment carefully on this when it is published - that the implication was that the initial ruling had not sufficiently engaged Article 10 of the Convention.

Third, Lord Justice Laws seemed to accept that it was arguable that it was disproportionate to really expect a defendant to show that a corporate entity could have a subjective dishonest intent.

Fourth, and most importantly, Lord Justice Laws gave permission for a full appeal on the meaning of the alleged libel.

This means that Simon can now re-argue before the Court of Appeal that his article was fair comment.

The appeal will not therefore be limited to deciding which factual meaning Simon will need to justify.

This Court of Appeal hearing will be in around six months time, perhaps in time for the next Chiropractic Awareness Week.

However, a warning. It is important to note what this decision does not mean:

- the High Court's adverse ruling has not been overturned: it is entirely possible for the Court of Appeal to still uphold the High Court's original adverse ruling; and

- the Court of Appeal has not criticised or in any way ruled against the BCA's case.

The Court of Appeal has held that Simon has an arguable case for a full appeal on meaning; but this certainly does not mean that they will necessarily accept his case at the full appeal, and so his case may still be rejected.

But it does turn the litigation clock back to the very beginning of the preliminary hearing and gives Simon a well-deserved (and legally rather unexpected) opportunity to argue before the Court of Appeal what his article actually meant.

So, in summary, this is the best possible outcome for this application for permission to appeal.

And it is also the best possible reward for Simon's awesome determination to be able to properly defend in court what he said about the British Chiropractic Association's promotion of chiropractic for various children's ailments.



I will set out the full judgment on this site as soon as it is published with a detailed commentary.


COMMENTS MODERATION

Please provide a name with your comment; purely anonymous posts will not be approved.

Tuesday, 13 October 2009

Guardian Ungagged

The case, which I suggested could be the most significant constitutional case of our generation, will not now take place.

The good news is reported here.

As I guessed earlier, it was not based on libel but - according to The Guardian - alleged contempt of court. It would take something like that to prompt a court to grant an injunction at the very extreme of its jurisdiction (and, as far as I can tell, beyond that extreme).

Injunctions are discretionary and equitable; as such the court will not grant one in vain. Once the information protected is viral, and whatever the other merits of the case, the court is unlikely to renew any injunction.

It may well be that The Guardian knew this full well when it posted its possible-to-decode coded report yesterday evening.

For once decoded, it was likely to go viral, which it did.

If so, The Guardian proved the ancient adage that clever people get themselves out of situations which wise people wouldn't get into.

However, two important questions remain.

The first question is how did such an injunction get granted in the first place.

The second question is indeed the still unanswered Parliamentary Question...

The Most Significant Constitutional Case Of Our Generation?

The Guardian has announced today that it hopes to be in court to discharge the injunction against reporting a parliamentary question.

One must wish The Guardian - and especially its lawyers - well in this endeavour.

It is unlikely that such a powerful injunction was granted on the basis of libel alone - or at all. It may have been based on the grounds of privacy, confidentiality, legal privilege, or even contempt of court.

Whatever the basis of the injunction, it seems to raise the crucial issue of the extent to which the courts can grant injunctions in respect of reporting parliamentary business, when such reports are protected by no less than the 1688 Bill of Rights.

If so, this case directly pits the very extremity of the power of the courts against the most fundamental privilege of parliament.

This may well be the most significant constitutional case of our generation.

Monday, 12 October 2009

The Guardian Injunction

At about 20:30 this evening, The Guardian posted an article stating - incredibly - that it had been gagged from reporting an item of parliamentary business.

Within an hour or so, some twitterers were linking to this article, and I saw it.

I thought it a carefully worded article, almost like a crossword clue.

So I set to work, just for my own personal pleasure, and I found what was likely to be the parliamentary question ("PQ") straight away.

After all, the parliamentary website is not that difficult to search if you are familiar with it. And published order papers are in turn not difficult to search.

About the very same time I hit on the likely PQ, another blogger and skeptic hit on it independently, and he twittered it. Then it started going viral.

Soon it was clear that a very famous political blogger had also hit on the PQ and was publishing it in full.

It is not for this Blog to publish direct links to these possible disclosures. The court has ordered an injunction, and so there will be nothing on this Blog which will circumvent that.

However, one does wonder whether The Guardian knew that this is what would happen...

Sunday, 11 October 2009

Copyright Infringement Is NOT Theft

From a legal perspective there is a neat "Special Effect" in every film.

It is in the tiresome small print, usually in the credits but sometimes even before the movie begins, which warns against unlawful copying.

The special effect is to insert the word "criminal" in to complement the word "civil" when mentioning the forms of liability. It really does have a supercharging effect.

However, mere infringement of copyright is not a criminal act.

There are indeed criminal sanctions contained in the relevant UK legislation: the Copyright, Designs and Patents Act 1988. These are generally in respect of the wrongful distribution of copyright material, usually on some commercial basis.

But the private end user copying a copyright work for personal use is not a criminal; he or she is not a thief; their wrongful act is not theft.

As Tim O'Reilly has pointed out, the right term is copyright infringement.

At this point, the vested interests - showing their legal illiteracy - will suggest that I am suggesting that it is somehow alright to infringe copyright.

I am not. An infringement of copyright is still wrong; more precisely it is a wrong, for copyright infringement is a tort and a wrong is what the word tort actually means.

Of course someone committing a tort - the wonderful legal word is tortfeasor - should pay compensation, just as the negligent driver pays compensation to a victim.

I do not support copyright infringement any more that I support negligent driving; but just because it is a wrong, it doesn't mean you can pretend it is also a criminal offence.

And the compensation should correspond to the money lost had the tort not been committed, which for copyright infringement will be the equivalent of a licence fee.

Many people would, I suspect, happily (correct meaning) pay an appropriate licence fee for using copyright material, if only the media content providers would make the works more easily available.

The media content providers are wedded to a commercial model which means they want to pick and choose when to make content available to the public; but the technology and ease of file replication is against them.

It cannot be a pleasant experience, but they are not being set upon by a band of thieves; they are instead suffering a mass tresspass.

I have written before that making money out of recorded music may well turn out to be a hundred year blip in the millennia of the history of music.

(I also suspect that the prevalence of the three minute popular song and half-hour album may also soon cease to exist, as it was only the 45" and 33" vinyl records which made such timings the standard.)

The commercial models may change - and innovations such as Spotify seem to show that the models are changing - and so there may still be a way of making money from recorded music in the copy-and-paste era.

In the meantime, it would be good to hear fewer accusations against end-users that they are thieves.

However, this is not the first time that anxious "property" owners have used the vocabulary of criminal law to deter those likely to commit torts.

For, contrary to all those threatening roadside signs, individual trespassers will not be prosecuted.

Simple trespass to normal private land per se is a tort not an offence.

But they wouldn't want you to know that would they?

Senator Al Franken: Law Reform And Raped Employees

In a speech both legally literate and passionately progressive, Senator Al Franken has urged reform of the US law of public contracts so to prohibit contractors who do not allow raped employees access to the civil courts.



All four female Republican senators voted for this amendment, though thirty male Republican senators voted against. Sadly - for me - they included John McCain.

As a public contracts lawyer, I am well aware of the usual arguments against using the law to impose non-commercial obligations on contractors. And sometimes public bodies do over-reach themselves.

However, there is a more fundamental principle of access to the courts and, for reasons which Senator Franken sets out with great eloquence, this amemdment is both morally right and legally appropriate.

Friday, 9 October 2009

Simon Singh: The Background To The Next Hearing

The next round in Simon Singh's ongoing and heroic defence against the misconceived libel case brought by the (now discredited) British Chiropractic Association takes place on Wednesday next week (14 October 2009).

So this is as good a time as any for a round-up.

To start with I will explain just why I describe the BCA as discredited.

They are "discredited" - in my opinion - by reason of the great claims for their "plethora" of supposed evidence for the efficacy of chiropractic for the children's ailments.

For,when the plethora was placed it into the public domain, it turned out to be the most humiliating dud.

In effect, the BCA defamed itself and had no one to sue.

Even the British Medical Journal concluded in an editorial that all the references were "demolished completely".

And, of course, if something is demolished completely, not a jot remains.

(I now understand that the BMJ editorial had to go through several lengthy rounds of "lawyering" because of fears that the BCA would sue that august journal - or just the editorial writer personally. Such is the real effect of libel chill.)

And as for "misconceived", and insofar this really needs to be explained, see perhaps here - and, in picture terms, see here.

Whilst the BCA labour on with their case, Simon Singh, on the other hand, is receiving international acclaim for his steadfast and inspiring defence.

And, more widely, the support for Simon's predicament and the interest in this case have spawned two particular movements, both of which are becoming increasingly effective over time.

First, there is the important campaign to reform England's libel laws so as to allow free discussion on scientific topics.

This is being coordinated by the awesomely competent Tracey Brown and Síle Lane at Sense About Science.

Sense About Science deserve the greatest credit for all their work on this and for the achievements so far.

One recent highlight of this campaign, amongst many, was the address by Richard Dawkins at the Liberal Democrat party conference. And more useful activity is on the way.

Thanks to Sense About Science, practical libel reform to protect science discourse is now entirely possible.

Second, there is the tireless enterprise of skeptic and science activists to hold chiropractors to account and to ensure chiropractors comply properly with all their legal and regulatory obligations.

The most prominent of these are Simon Perry and Zeno.

Their success in this quest has so far been astonishing.

In particular, they - and others - have triggered interventions of the Advertising Standards Authority and local Trading Standards officials who are quite rightly ensuring that hundreds of misleading advertisements and communications are pulled or modified, including - astoundingly - information put out by the UK chiropractic regulator itself, the General Chiropractic Council.

These activists are forcing through nothing less than a thorough reformation of how British chiropractors are presenting themselves to the public.


Against this background comes the next hearing of the libel case.

This hearing will deal with Simon Singh's attempt to appeal the ruling on meaning by the High Court.

This will not, however, be a full appeal.

To appeal a High Court ruling on meaning requires permission: it is not an entitlement.

Here Simon Singh has already lost twice. At the High Court hearing, he applied for permission immediately, but this was refused and the judge remarked that it was a straightforward case.

There was then a paper application to the Court of Appeal - and this turned down. The reasons given by the Lord Justice of Appeal were:

"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."

The reference to "skeleton" is not of course to the subject matter of chiropractic treatment, but to Simon's skeleton argument; and the reference to "context" is to the point that later in the Guardian article the use of the word "bogus" is explained.

Following such a refusal an applicant can make an "oral renewal" of the application, to be heard in open court. This what Simon has opted to do.

Will Simon succeed in this application? The fact that this is his third bite of this cherry suggests, in general terms, that he will not. The Court of Appeal does not lightly reverse rulings by the High Court in preliminary hearings in any case.

Nonetheless there is some chance of success here, though in my view less than 50:50.

More importantly, for Simon to take this case to the European Court of Human Rights for a ruling on whether in his case the UK government has - by allowing libel law to exist in this illiberal state - failed to afford protection to his right of free expression under Article 10 of the European Convention on Human Rights, he has to exhaust every domestic remedy.

If you happen to be in London on Wednesday, do come along to the Royal Courts of Justice to show support and solidarity. There is no steer on timings yet, but I will provide updates on Twitter (though from safely outside the court room).

And, given what has happened already, one does wonder what will happen in this case...

free debate


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Tuesday, 6 October 2009

The Alpha Course and Graffiti: Ticking The Wrong Box

There is a rumour that someone has been arrested after ticking "No" on one of those Alpha course posters.


This act - like any other graffiti on someone else's property - could well constitute criminal damage: see the relevant Crown Prosecution Service Guidance.

If it is a criminal offence - and so not just a private law infringement - the intention or even the implied consent of the advertiser would not normally matter.

That said, under section 5(2) of the Criminal Damage Act 1971, genuine belief in the consent of the owner of the actual property in question can constitute a defence:

A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse—

(a) if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction of or damage to the property in question had so consented, or would have so consented to it if he or they had known of the destruction or damage and its circumstances [...]


It would be interesting to know whether those running the Alpha course could be deemed to have consented, on the assumption that they actually owned the poster in question.

In any case, the CPS would normally only prosecute when it is in the public interest to do so.

It would therefore also be interesting to know whether the CPS would see such a prosecution as being in the public interest.