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Sunday, 3 January 2010

BCA v Singh: the Heroes...so far

The new year brings both the formal appeal hearing of British Chiropractic Association v Simon Singh and the intensification of the Libel Reform campaign in the run up to the UK general election.

But regardless of the result of the appeal hearing and further hearings, and regardless of the achievements to come of the Libel Reform campaign, it is clear that the activity in and around the BCA v Singh case has already accomplished an impressive amount.

So I would like to set out here my personal and subjective views on who have so far been the heroes of this case: by heroes, I mean people whose exertions have made a substantial and favourable difference to the case and to related issues.

In doing this, I have been lucky in being a close observer of the case from an early stage, and what follows is based on the information known to me. Those listed are in a broadly logical sequence and it is through their contributions that one can piece together the fascinating story so far of this case.

Some of these will be well known to those following the case; others less so, including some unsung heroes.


10. Dave Gorman, Prof Brian Cox, and Evan Harris MP

Back in May 2009, following the dreadfully adverse ruling at the preliminary hearing at the High Court, a support meeting for Simon was organised at the Penderel's Oak in London.

Initially this was going to be addressed by Simon and Nick Cohen (see below); I remember Simon genuinely worrying that hardly any one would turn up.

His worries were misconceived.

Moreover, the celebrities Dave Gorman, Brian Cox, and Evan Harris - all of whom were deeply concerned at the ruling and its implications - agreed also to speak at very short notice.

In part thanks to their contributions, the event turned out to be a tremendous success, and Simon received emphatic and loud support from a packed and enthusiastic audience. It gave the campaign the push which still carries it forward.

Soon after this Simon decided to apply for permission to appeal the adverse ruling.

The speeches at this event, all of whom fully warrant re-watching, are at Crispian Jago's Blog.

If you came along to this event and cheered Simon then count yourself under this heading too!


9. Blue Wode, Mojo, Chris Kavanagh, and Crispian Jago

At a very early stage in this case it became obvious that the effective acquisition and sharing of information was crucial.

Relevant information about the efficacy of chiropractic was diffused and not easy to collect and consider.

Here the internet activists Mojo and Blue Wode (neither of whom really have their own website, though you can follow Mojo best on the JREF Thread on the case and Blue Wode can be followed on Twitter) made invaluable contributions to the case; indeed, contributions which are still ongoing.

Once the case became widely known on the web, then a further problem arose of organising the ever-increasing amount of web-based information. This role was wonderfully performed (until the amount of information became far too much for any one person to sift) by the anthropologist Chris Kavanagh. His site - an extraordinary labour - remains the best source for internet materials up to September 2009.

Another challenge was for the technical side of the case to be explained in straight-forward language. To an extent my own blog sought to this, but it was quickly eclipsed in doing this by the blog of my friend Crispian Jago.

In particular, his case report deftly captured the essence of the permission hearing, and his Ladybird Book of Chiropractic Treatment and English Libel Law is the best single digest of the case so far.


8. Nick Cohen and Padraig Reidy

Nick Cohen was the first and (for some time) only mainstream journalist (other than science journalists) to grasp the free speech implications of the Simon Singh case. He correctly placed the case in the context of a number of illiberal and counter-intuitive libel rulings by the High Court on libel and, more than anyone else, he has ensured that the campaign in support of Simon Singh was harnessed in the direction of addressing the problems of libel law more generally.

The other journalist critical to the case becoming seen as hugely significant in a free speech context is Padraig Reidy, the brilliant News Editor of Index on Censorship. It was following a conversation with Padraig that I sat down and wrote the (now it seems famous) blogpost on the adverse ruling: a blogpost which now has had 18,321 direct hits, and firmly framed the case in terms of its implications for free speech.


7. Ben Goldacre

It is easy to take Ben Goldacre for granted in this campaign; he selflessly attends meeting after meeting to speak on the case and in respect of wider libel reform; and all this on top of a demanding full time post and his prolific journalism.

However, Ben has made a massive contribution in ensuring that as many people as possible realise the awful public health implications of the current libel laws. As he points out, medicine has the potential of doing great harm even when the intention is to do great benefit: accordingly there needs to be frank and uninhibited discussion in the field of public health.

Of course, Ben is here drawing on his own experience of the libel case brought by Matthias Rath; but he is now free of that case (and it would be quite reasonable for him to never hear the word libel again). And so it is to his immense credit that he is using his fame and time campaigning for Simon and libel reform.


6. The "Bad Science" Bloggers: Prof David Colquhoun, Gimpy, Andy Lewis, Dr Aust, Dr Petra Boynton, Martin Robbins, and many others

The case has been extraordinary for the participation of bloggers: it is difficult to think of any legal case which has had such sustained scrutiny by the blogosphere.

The key contribution of the "Bad Science" bloggers was the destruction, in less than twenty-four hours, of the purported plethora of the BCA's supporting evidence.

The tale of this amazing exercise has been best told by Ben Goldacre in a Guardian piece here; but the involvement of bloggers has been striking in the case from the very beginning (for example, see this Quackometer post from back in August 2008, the comments to which are interesting in hindsight).

The "Bad Science" bloggers I mention here are just a selection: they are the ones which come most readily to this non-scientist's mind. That said, a special word must be said for the polymath Dr Aust, whose quasi-legal analyses of the case are excellent.


5. Prof Edzard Ernst

If the Bad Science bloggers destroyed the plethora on the internet, it was Edzard Ernst who fatally undermined it in a more traditional medium: the British Medical Journal.

This review in turn led to a devastating BMJ editorial, which concluded:

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

And with that sentence, the scientific and intellectual credibility of the BCA was extinguished, regardless of the "reputation" they are happily litigating to, er, protect.

From this point it was both justifiable and more than fair comment to describe the BCA as "the now discredited British Chiropractic Association", and so I have done so.


4. Alan Henness and Simon Perry

Whilst the interest in the case developed into a broad libel reform campaign, and whilst the BCA undermined their own scientific reputation, two blogger-activists (working independently of each other and anyone else) set out to hold the entire British chiropractic profession to account. I dubbed this "the Quacklash".

Alan Henness and Simon Perry knew that chiropractors themselves had legal and professional duties, both under trading standards and advertising rules, and indeed under the statutory public body, the General Chiropractic Council. Furthermore, complaints of breaches of these obligations would be properly investigated by independent third parties.

This process is still continuing; but the early results show that chiropractors are now being reined in from making misleading and unevidenced claims for their treatments.

If this leads to a permanent shift in how chiropractors portray themselves in the UK, it may well be that Alan Henness and Simon Perry will have achieved more for the better regulation of chiropractic than the profession could have ever done for itself.


3. The Legal Team: Robert Dougans, Adrienne Page QC, and William McCormick

I wondered whether I should include these in this list, which consists primarily of activists and campaigners; but I thought it misleading to miss them out, for without their contribution Simon simply would not have been able to have secured permission to appeal what is (to my mind) a perverse preliminary ruling.

It will be in the hearings yet to come that their input will become more obvious to those following the case. Given their respective reputations, it will make any full trial one of the best tickets in London next summer.


2. Tracey Brown and Síle Lane of Sense About Science

Sense About Science is an independent charitable trust promoting good science and evidence in public debates.

Tracey Brown and Síle Lane of Sense About Science took an internet-based campaign in support of Simon and libel reform, and transformed it into a major and sleek public campaign, launching a petition of over 20,000 signatures (including, remarkably, the Astronomer Royal and the Poet Laureate). It was an incredible and highly-professional piece of campaigning and public relations

They furthermore ensured national media attention when they were instrumental, with Prof Richard Dawkins, in getting the Liberal Democrats to commit to libel reform after a powerful speech by Dawkins at the national conference.

Sense About Science have now joined Index on Censorship and English PEN in a coalition for libel reform: a campaign which, thanks to the skill of Tracey and Síle, has extremely sound foundations.


1. Simon Singh and Anita Anand

At the May campaign meeting, Nick Cohen turned to Simon and (in the manner of Chris Tarrant) asked, "you've already spent £100,000; but are you up to the full million?".

The sheer financial exposure of any libel defendant, and their family, especially when the case may involve detailed examination of lengthy scientific evidence, is terrifying. It is easy for onlookers, activists, and campaigners to be "armchair litigants", safely away from the legal battlefield and protected from any costs risks. However, Simon and his delightful wife, the journalist Anita Anand, face a severe financial hit - even if he wins.

For them to face this with cheerfulness and good spirits is wonderful and inspiring: there is not a single person on this list - or any where else - who would mind if Simon decided to end this case and settle on any terms he could get.

And Simon has done more than just brave the case, he is using it to raise important questions about the role of libel in science and public discourse generally.


The case is at an early stage: there has not yet been a full trial, and Simon could still lose. The campaign for libel reform is only getting started, and it may not succeed. The Quacklash will take some time to have any substantial effects, and ultimately these may be minimal.

However, what has been achieved so far has been significant, and some of it will endure regardless of what now follows.


And so this blogpost is merely a milestone on various journeys: in a year's time it will be interesting to reflect on what will be the heroics of 2010...


COMMENTS MODERATION

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33 comments:

Cubik's Rube said...

Looks about right to me. I have much to aspire to.

And I know modesty must prevent you from assuming an especially prominent place for yourself on your own list, but I don't think there's any doubt that you've been a significant and hugely valuable part of the public debate for many months now.

Jack of Kent said...

Thanks Cubik's Rube: yours is one of the other Bad Science blogs.

As for your kind suggestion, I would actually place myself about joint 9th with Crispian Jago.

Steve said...

Good work JoK for making me aware of this issue. Simon was right in what he said and should not be punished by the law for that.

teekblog said...

A good summary of the key players to date - let's hope that in 2010 you'll be updating this list with the likes of Jack Straw and/or Adam Afriye, as the battle to get the libelreform.org campagin's reforms legislated for hots up.

Oh, and I'd like to add my vote for adding your very own blog to the list of course...!

Botogol said...

As far as I know, Jack, you are the only person who has produced some comprehensivem, analytical legal commentary on *the libel case itself*

Much of the rest of the material in the blogosphere is about chiropractic, and does it work, and how dare they?

But for Simon Singh this is not the issue: his case isn't going to turn on whether or not chiropractic treatments work, his case is going to turn on whether or not the the BCA *knew* that the treatments they promoted don't work.

For notwithstanding all the twittering on the subject, to me the meaning of Singh's words was plainly exactly as Eady found it to be: that the treatments are bogus and that the BCA knew that, and happily promoted them anyway.

The BMA article is useful as it shows that the treatments are bogus. The BCA are going to say: 'Nevertheless, we weren't 'happily promoting bogus treatments... we beleive they work (and so do 1000s of other people), so while you may think we are mistaken, as you ae entitled to, o accuse of of happily promoting bogus treatments is still a libel'

I don't think it's all certain that the BCA will lose.

John Collins said...

Slightly tongue-in-cheek but if the whole thing becomes the tipping point that delivers a long-overdue reform of the libel law won't the BCA be unintended heroes?

Botogol said...

I don't think it will be a tipping point at all. Indeed I think it is quite the wrong case to put forward as an example of why we need to change our (shocking) libel laws.

- this isn't a case of libel-tourism: it's clearly a UK case and it's quite properly in front of the UK courts.

- it isn't about freedom for scientists to quesion the efficacy of medical treatments.

Singh is not in trouble because he attacked the efficacy of Chiropractic He's in trouble because he suggested that the BCA happily promote remedies they know to be bogus.

Which, if it's not true, clearly is a libel, and after the libel laws are reformed I am sure it will still be a libel.

I think that to win his case Singh will have to show that
1) the treatments are bogus (this is done by the BMJ)
2) because of the lack of evidence supporting them the BCA must have realised they were bogus

I think that (2)is going to be hard. Plenty of 'reasonable' people seem to believe that there is enough evidence of one sort of another that is 'reasonable' to have a faith in chiropractic.

John Collins said...

I don't think I can agree with that. The BCA withdrew many of the claims that Simon said were "Bogus" when the ASA had a go at them.

I wouldn't want some subjects not to be aired freely and people not to be able to make intelligent choices.

Claims for medical treatments must come highly here. If I or a member of my family is suffering from a medical condition my main interest is going to be having accurate diagnosis and effective treatment at the earliest opportunity. I am going to be anxious and vulnerable until those are delivered. Anyone who exploits my anxiety and vulnerability by making exaggerated claims for their treatments is not, in my opinion, a candidate for the protection of the full majesty of the law.

In my and many other people's opinion, libel should follow the US rules that it has to be malicious or with "reckless diregard" for the truth. The courts should be slow to entertain claims by organisations with advertising budgets rather than individuals. There should be a level playing field when it comes to the burden of proof. And there should be a clear "public interest" defence which includes medical or scientific matters.

On that basis the BCA should have to prove that their now withdrawn claims for their treatments are effective or just go away.

If this case is going to help alter things it might well turn out to be a favour that the BCA have done us which was my original point.

Dr Aust said...

Botogol, I disagree. There remains a real question as to whether "happily promote...bogus" has the precise meaning the BCA and Eady ascribed to it, or whether the meaning would be inferred by a reader from the context (i.e. from the article taken as a whole) - see e.g. here and here.

In addition, while the law concentrates on what a reader would take Singh's words to mean, the question of what Singh actually meant seems relevant to the question of "malicious intent", as mentioned by the Appeal Judge Lord Justice Laws.

Apart from specifically demolishing the BCA's claims about there being evidence for the therapies, the largely blog-based "quacklash" has also served to concentrate minds on the issue of public interest - as in, whether there should be a straightforward public interest defence in a libel case of this type. Given the lack of evidence for the therapies the BCA promoted, it is fairly clearly in the public interest for Singh to be able to publicly call attention to this. It is also fairly clearly not in the public interest for the BCA to be able to silence him by use of the libel law.

I rather suspect these are some of the issues the Learned Justices of the Court of Appeal may be giving thought to, given the way they have been lining up to sit on the Appeal panel.

Mike from Ottawa said...

"He's in trouble because he suggested that the BCA happily promote remedies they know to be bogus."

ISTM, had Singh's words clearly had the meaning you advance, we would not have seen in the above "they know to be".

Steve said...

@Botogol

I disagree with your comments, primarily because as ( which i am) a healthcare professional (and the chiropracters style themselves as, and want to be..) you have to know your area of expertise and be able to justify (scientically, its the only evidence based game in town) your actions.

You simply cannot claim to be in the healthcare field and not be aware of the scientific basis of your field. You would not be competent (by the standards applied to REAL healthcare professionals) to practice.

So the BCA would appear to be in a dilema, win the case but admit they don't know jack (pun intended!) all about the evidence against their "profession", which thus shows they are not competent as heathcare profesionals or lose the case and err, show they don't know jack all...

Whatever happens , they can't surely pretend they don't know that theres no evidence that their fraudelent practice actually works anymore???

Chiropracters are the "respectable" end of the wedge that primarly serves to con vulnerable people out of money on treatments that don't work. Thats pretty low in my book.

Cubik's Rube said...

Throwing in my two cents again, I've also got to disagree with Botogol. Analysing Simon's contentious statement on a word-by-word basis, I can see nothing libellous about it at all.

- Are "treatments" the matter in question? Nobody's really arguing that point.
- Are these treatments "bogus"? Well, there's no scientific evidence that they're effective beyond placebo. I don't know quite what else "bogus" could really mean in the context of a medical treatment that purportedly does have an effect beyond placebo, so this also seems like fair comment.
- Do the BCA "promote" these bogus treatments? Obviously, or there wouldn't have been of this big hoo-hah from them in the first place.
- Do they do so "happily"? Well, I don't see anybody twisting their arm about it. They don't seem to have been wringing their hands and bemoaning their lot, at what a terrible position they've been somehow coerced into, that they simply must promote these bogus treatments against their will. That's just silly. So this seems like a yes as well.

Anything beyond this, like reading "happily" to mean that the BCA knew exactly how bogus the treatments were, is not explicit in Simon's words, and is at best ambiguous. If the BCA's agenda had anything to do with the promotion of good science in medicine, then asking Simon to clarify what he meant by this point would have come way before suing for libel on their list of responses.

Not that I think it should, but if it does come to proving whether the BCA knew the treatments were bogus, the infamous "plethora" must count pretty heavily against them. Though I suppose it could be argued that they were simply too incompetent or untrained to recognise terrible and unconvincing evidence when it was right in front of them. (I'd love to hear them use that argument in their defence.)

Botogol said...

@steve and @Dr Aust - I agree precisely with you, both, and I am not sure with what you disagree with me? :-)

Dr Aust hits the point exactly

"a real question [is] whether "happily promote...bogus" has the precise meaning the BCA and Eady ascribed to it, or whether [an alternative] meaning would be inferred by a reader from the context"


This is EXACTLY the qu that the trial revolves around.

Let me summarise my analysis:
- the treatments are bogus (I think we can all agree that, and the BMJ articel will be great in court)
- the BCA happily promoted them (I think we can all agree with that)
- BUT did the BCA happily promote them knowing that they were bogus? Or did they do it in good (misguided) faith?

Ah, there's the rub....


The trouble for Singh is: it seems to me that the plain english meaning of Singh's words was exactly what Eady understood them to be: Singh said that that the BCA promoted the remedies *knowingly*

An experiment: If you have any friends/colleagues unfamililiar with the Singh case try it! Quote it (with as much context as you like) and ask them what they think it means. I have tried it. Without exception my test subjects understood happily to encompass knowingly. *indeed there is nothing else that it could mean*


I think there's a real danger that the man in the street, and the judge on the bench, will analyse the case like this.
- these remedies are bogus
- the BCA promoted them
- question is whether the BCA were crooks.... or fools
- Singh alleged that they are crooks
- but look how many people genuinely beleive in woo? even the NHS support woo now.. they probably belive in it... we have to give them the benefit of the doubt: they are fools, not crooks.

Hence they were libelled.

@Steve: you dilemma is spot on. Sooner or later the BCA are going to have to stand up in court and say 'we're not crooks... we're only fools'

Singh must be hoping they will settle rather than submitting themselves to that.

Botogol said...

@Cubik's Rube - what do you think *was* meant by 'happily'?

You could take SS's sentence and substitute for 'happily' perhaps
- innocently
- guilessly
- insouciantly
- recklessly
- disengenously
- knowingly

which word do you think is the closest synonym, to 'happily' in the context singh used it?
is your choice a perjorative, potetnially libelous word, that alleges dishonesty?

David said...

Ever since Simon Singh was taken to task for the statement he made about the BCA, there’s been a campaign to turn this into a freedom of speech issue. It is not.

The journalists, politicians and celebrities you have listed have been duped into believing that the BCA has tried to stifle scientific debate by challenging Singh. This is a straight forward misrepresentation of the situation. Singh did not give an opinion in his piece; he made an incorrect statement of fact that he refused to withdraw.

It’s nonsense to suggest that the BCA is somehow trying to hide the “truth”. The BCA simply challenged Singh when he accused them of dishonesty. This is the matter on which the case rests, or it certainly should be.

Justice Eady gave exactly the interpretation to the words Singh used in his article that would have been taken by anyone reading it. For Singh to claim, once he got into court, that he meant something different is disingenuous.

The crusade against chiropractic that has followed illuminates the matter excellently. All the activity by Alan Henness and Simon Perry has been an effort to help Singh’s cause in the case. They’ve dressed it up as a public safety issue and portrayed chiropractors as snake-oil salesmen. Between them, they’ve submitted around 600 complaints to the regulatory body and this is going to result in massive costs to investigate them all.

If any of these complaints is upheld, it can only result in some chiropractors changing slightly the way that they advertise. It will not have proved a thing about the effectiveness of chiropractic or have had any direct effect on the BCA. It will, however have cost the regulator (the GCC, not the BCA) a huge amount of time and resource going through a pile of vexatious complaints, erroneously made purely to support Simon Singh. That is not a public safety move and is also not in the least bit heroic.

Besides, Singh’s defence so far has rested on claiming that he didn’t actually mean what he said, apparently he meant something different. You can’t have it both ways.

Regarding the so-called “demolition” of the evidence, it’s no surprise to find Edzard Ernst in the frame. Ernst lost his credibility as an objective observer on matters of complementary medicine long ago. He’s taken it upon himself to damn chiropractic whenever possible and, in my opinion, abuses his position as Professor of Complementary Medicine.

Let’s face it, Ernst has a vested interest in the case. One of the qualifications that Singh claims gives him the authority, is that he has co-authored a book with Ernst. Ernst now has to back him up, and I’m sure that he is more than happy to do so because he just loves to denigrate chiropractic.

That the BMJ has described Ernst’s analysis of the evidence as a “demolition” demonstrates the unfortunate fact that the BMJ uses Ernst as its only source of comment on these matters.

The GCC has commissioned its own systematic review of the evidence. Ernst has dismissed this as an attempt to shed a different slant on the evidence, but the truth is that an objective review needs to be done because those published so far (by Ernst et al) have been anything but objective.

It’s interesting that you list the legal team as heroes in this matter. To me it seems that if you need to muster such a formidable team, if that’s what it is, then it’s because you have trouble on your hands.

Considering the bloggers who have promulgated this stuff, I’m afraid that mostly they’ve enjoyed climbing on the bandwagon and finding a cause. I don’t see that as heroic either.

As for Simon Singh, I can understand why he made his comment; he needed to create attention for his book. Why he chose not to clarify his words, but wait until he was in the courtroom to give his true meaning, I don’t know. What I am sure of, is that if he had said what he now claims he meant, the BCA wouldn’t have pursued the matter at all.

Simon said...

@David

A proper reading of Singh's article in full clearly shows that he believes that the BCA were simply mistaken, not deliberately fraudulent. I am sure if the BCA had asked Singh to clarify the point of honesty, he would have obliged. I do not believe that this is the case. This clearly implies to me that they were trying to shut up his claims about efficacy.

The complaints that I made were not done to support Simon Singh's case. Simon Singh's case certainly drew my attention to the issue, but the motivation came from an opportunity to prevent a lot of people receiving unnecessary healthcare. I’ve clearly detailed the reasons on my blog at http://adventuresinnonsense.blogspot.com/2009/10/why-making-large-numbers-of-complaints.html .

The GCC is undergoing significant cost yes, but if they'd been properly regulating the profession in the first place (don't forget this organisation approves degrees full of woo from MCA even though they have stated in the past that they don't contain enough evidence-based chiropractic) then perhaps they wouldn't be in this situation. The GCC problems have been caused by their own failure to protect patients from nonsense.

If you wish to tackle Ernst's argument, tackle his argument. I am more than happy to accept a strong argument from the BCA. I would consider their bias irrelevant so long as they are right. The BMJ also published a response from the BCA.

jdc325 said...

David - I disagree with so much of what you have written that it is difficult to know what to address first.

Your comments about Edzard Ernst are, I feel, very unfair. You wrote:

"Ernst lost his credibility as an objective observer on matters of complementary medicine long ago. He’s taken it upon himself to damn chiropractic whenever possible and, in my opinion, abuses his position as Professor of Complementary Medicine."

I don't agree that Ernst "lost his credibility as an objective observer some time ago", and would be surprised if you could find anyone (other than advocates of alternative medicine) who holds this view.

I also disagree with your assertion that Prof Ernst has "taken it upon himself to damn chiropractic whenever possible" - I was at a talk* given by Ernst last year and he discussed the benefits and risks of chiropractic in an even handed manner. While Ernst stated that it was not in dispute that there were mild to moderate adverse effects of the treatment, he also told his audience that severe adverse effects of chiropractic were hotly disputed.

Ernst also said that he is not a Quackbuster, but is a scientific investigator. I think that Ernst has been performing this role in the manner one would expect - a scientific investigator holding a position as 'Professer of CAM' should conduct research of the nature that Ernst has published during his time in this position. This seems quite straightforward to me and I am surprised that you assert that Ernst "abuses his position as Professor of Complementary Medicine." I cannot see how publishing properly conducted research is at odds with working as a Professor of CAM - but perhaps you can expand on your views?

*Ernst's talk: http://www.layscience.net/node/674.

"Richard Keen" said...

David,

Firstly, I cannot agree with any argument that Ernst is biased or abuses his position. The CAM brigade seem to believe that a Professor of Alternative Medicine ought to act as an uncritical cheerleader for CAM. That would surely be an abuse of his position. What he is doing instead is to evaluate the evidence for the efficacy of CAM. Given the money spent on CAM treatments, and the claims made on its behalf, this seems like a sensible endeavour.

It is important to realise that when Ernst has found good evidence for CAM, he has said so. A good example is with St. John's Wort, which he accepts seems to be better than various attempts to market the individual ingredients.

All he and Simon want to do is to evaluate the claims made on behalf of CAM. They are not quackbusters, and would have printed a book saying CAM treatments worked if they thought they did.

As for the meaning of the article, the law (and common sense) provides that you ought to consider words used in the context of the article as a whole. Singh clearly defined the word "bogus" (as well as "happily promoting") in the rest of the article. From that article it is clear that he called chiropractic "bogus" in the light of research undertaken with Ernst, and that therefore the BCA was "happily promoting" treatments which research showed to have no evidence of benefit.

What is more, the BCA is not a trading company. It is not Tesco. Nor is it even an individual chiropractic clinic. The real effect of anything Simon said upon the BCA must have been negligible.

This is a free speech issue. It goes to the heart of what is wrong with English libel law.
1. The words complained of are, in the context of that piece and the Guardian comment page, pretty tame. This is the robust, flourishing language used in vigorous debate. Making such comments ought not to expose any journalist to a libel claim, provided one is willing to take the same medicine yourself.

2. The courts have (as is often the case) put the worst interpretation upon the words complained of, when other interpretations are valid.

3. Defending the case is, simply, difficult and expensive. A lesser man than Simon would have thrown in the towel ages ago, purely on the grounds of costs.

It is no co-incidence that foreign claimants use our courts to stifle criticism. Just as John Dillinger robbed banks because that is where the money is, London is the venue of choice for those seeking to suppress free speech. Singh is not being pursued by forum shoppers it is true, but the fact it is possible to pursue him at all shows why the English courts are so popular amongst forum shoppers.

Singapore's ruling PAP politicians have been attacked for making use of the libel writ to stifle opposition. We ought to remember that our own politicians could easily do the same to opponents and the press, and be glad that they actually show some forebearance on this.

twaza said...

David,

When you say "The BCA simply challenged Singh when he accused them of dishonesty" you assume that there is only one kind of person who would happily promote bogus treatments that haven't a jot of evidence to support them, and that is someone who is dishonest.

There is a second possiblity that you, and others such as Mr Justice Eady, have overlooked, and that is that there are people who do not care much what the evidence is, and are happy to say whatever they find convenient. The actions of the BCA (taking ages to publish a very small body of very weak evidence) would suggest that they belong to the second category.

Simon Singh's article was focussed on the paucity of evidence, not the reasons people promote treatments without considering the supporting evidence. It therefore gives no reason to believe either that this was done dishonestly, or that it was done with cavalier disregard for the facts.

Ernst's papers have convincingly shown how weak the evidence for chiropractic is. What people generally haven't noticed is that the best evidence for chiropractic (e.g. for back pain) is much weaker than supposed. This is because the evidence comes from unblinded "pragmatic" clinical trials, which have a high risk of producing biased results (from nocebo effects in the comparison group, and placebo effects in the test group).

David said...

@ Twaza

I go back to the point that Botogol correctly made. Any innocent member of the public reading Singh's article would draw the same conclusion that Eady drew.

Singh was being deliberately provocative in his article. Be honest, when promoting a book entitled "Trick or Treatment", he's going to want to make some powerful statements to support it.

He didn't say that the evidence was poor, or that more research was required, he stated that the treatments were bogus.

A quick internet search for the definition of bogus reveals: not genuine; counterfeit; spurious; sham. Synonyms given are: fraudulent, pseudo, fake, phony.

Does this not imply dishonesty?

twaza said...

David, you asked "does this not imply dishonesty?"

No. this implies 2 possibilities: dishonesty or carelessness.

A dishonest person would happily promote bogus treatments that they knew to be bogus.

A careless person would happily promote bogus treatments that they didn't bother to assess.

A dishonest person promoting bogus treatments does not have good intentions.

A careless person promoting bogus treatments probably has good intentions if they are naive, and bad intentions if they are cynical.

If think the second option is not possible, please explain why.

Steve said...

David Said:
"He didn't say that the evidence was poor, or that more research was required, he stated that the treatments were bogus."

Yes the treatments are bogus, a sham whatever. This doesn't imply that the the persons doing the treatments are aware of the bogosity, although, by the standards applied to actual healthare profesionals they should be aware of it but thats another discussion.

Theres no evidence david that chiropracty? works as advertised, so are chiropracters bogus or merely incompetent and which would be worse?

Dr Aust said...

David wrote:

"I go back to the point that Botogol correctly made. Any innocent member of the public reading Singh's article would draw the same conclusion that Eady drew."

As I noted above, this is not true, David. It is highly arguable.

Do you mean an "innocent (reading) member of the public" wouldn't read the whole thing? If so, I don't agree.

Do you mean they wouldn't understand the bit where Singh explains, in some detail, precisely what he meant by "bogus"? If so, I don't agree.

Do you think they wouldn't connect the two? If so, I don't agree.

Following which, they would be free to draw their own conclusion about what they might think of the BCA's motives.

It would seem to me that their being able to make this judgement would be squarely in the public interest.

An interesting allied point is that a member of the public would, I think, be far better informed about the treatments in question for children (i.e. they would understand they were somewhat controversial and that there was dispute about the evidence for any benefit) had they read the BCA's Happy Families leaflet AND Singh's article, than had they read Happy Families alone.

On the whole in science and especially in healthcare we consider people being better informed to be "a good thing."

The legal issues have been covered in some detail above by "Richard Keen". Since his phraseology suggests to me that he is probably a lawyer, which I am not, I won't comment further on the legalities.

As to the wider issue of re-casting the case as an issue of freedom of speech, let us recall that the BCA were offered, right at the outset, a clarification in print in the Guardian, plus 500 words prominently placed in the paper to explain their position. Plenty of space to set out their view of the evidence and why they believe in these treatments.

If they were really seeking correction - rather than a head on a pole to serve as a warning to others, as many believe - why did they turn down the offer and pursue Singh personally?

Finally, your comment that:

"I am sure...that if {Simon Singh] had said what he now claims he meant, the BCA wouldn’t have pursued the matter at all."

- begs the question: since Simon has now clarified this publicly (and in print) several times, why have the BCA not dropped the case?

It is obviously in the interests of the BCA and its friends to try and re-focus things on a narrow question of verbal meaning. But laws and their workings are creations of, and reflections of, wider society. The BCA can hardly complain if many interested people looking at the case see larger issues which they judge to be worth highlighting.

And if, as a consequence, the BCA are losing catastrophically in the wider court of public opinion -which I and many others would say they are - then they have the remedy to hand. Which is to drop the case.

Max Fyfe said...

David,

Consider this example.

Henry has a counterfeit £20 note. Henry is not aware that it is counterfeit. He has not checked it to the extent that would be required for the note to be established as counterfeit.

Henry goes out and happily spends it anyway.

Is Henry being dishonest? If I accused Henry of happily spending a counterfeit note, would I be defaming him?

What are your thoughts?

twaza said...

Max Fyfe, your analogy with spending a counterfeit £20 is very neat.

However, a more accurate analogy would be to a professional investment advisor who happily recommends a great-looking investment.

If the investment advisor knowingly recommends a dodgy investment, they are being dishonest.

If the investment advisor happily recommends a dodgy investment that they haven't bothered to check, they are being, at best, careless. You are entitled to expect better from a professional.


I believe that some prestigious investment banks that happily recommended dodgy investments are being sued by disappointed clients. I am not aware of any banks in this situation that are suing their clients.

Botogol said...

this is a sorry case on both sides.

In my judgment Singh wrote an article that, as a whole, was intended to be pugnacious and criticial, but was not intended to stray outside the bounds of what's fair in scientific debate.

However SS's is an excitable man, with a book to sell, and in the writing of the article he got carried away with himself and made an ill-advised allegation of dishonesty and bad faith, that overstepped the mark of both scientific debate and - unfortunately for him - the libel laws.

The BCA, stung by the article delightedly seized on this ill-advised allegation, this mistake, and - ill-advisedly - sued for libel.

(aaarrgh)

At that moment both sides should have taken 24 hours to cool down, and settled it - apology/clarification of the sentence and space in the guardian as compensation. But neither side budged. [the twitterstorm that engulfed them in the first 24 hours is relevant here, it was probably hard for everyone to cool down after that].

Singh is now left saying, uncomfortably, 'well that sentence may look bad on it's own... but read it in the context of all the science stuff in the article'

The BCA is saying 'forget the science stuff in the article - which is wrong anyway BTW - it's that sentence you wrote that we're suing over'

This is a sorry mess. Not a test-case for the British libel system and the scientific method.

It's never too late to settle, somehow. I think the 'malice' press release may help. Both sides have now made silly accusations of bad faith and thereofre both sides could mutually apologise to eachother for those ill-advised remarks without losing much face, and we could all heave a sigh of relief.

Neuroskeptic said...

You missed yourself. Your writings on this case have been the best anywhere. An example of all that's great about blogging.

David said...

@ Botogol

You are EXACTLY right and I agree with every word of your analysis. I suspect that that is precisely how this matter has arrived at this ludicrous position and one can only hope that common sense can still prevail.

However, with so much pride now at stake, and with so many others attaching themselves to the issue, morphing it into a test case for libel law reform/free speech etc., it's hard to see how that can happen.

Dr Aust said...

Botogol and David: Botogol wrote:

"[Simon Singh] got carried away with himself and made an ill-advised allegation of dishonesty and bad faith, that overstepped the mark of both scientific debate and - unfortunately for him - the libel laws."

*sigh* One more time:

"[Simon Singh] got carried away with himself and chose a slightly unfortunate wording that could be interpreted as an... allegation of dishonesty and bad faith, that - taking this one particular reading of the words as the only one possible - overstepped the mark of both scientific debate and - unfortunately for him - the libel laws."

Bits in italics mine.

The question I ask again is - if the difference between these two versions comes to be the difference between "no case" and "facing a defamation judgement including a million pounds of costs", what does that tell you about the wider state of the English law on defamation and how it works?

It tells you that the law is broken.

Given which, I can't see why the discussion of the wider issues raised by the case is getting the BCA and their friends in such a lather.

Except, of course, that it shows them in a poor light.

And finally, the case can end tomorrow. It is easy. All the BCA have to do is issue a statement saying:

"Since Dr Singh has clarified the meaning of his original words, and has stated unambiguously that he was not seeking to imply conscious or deliberate dishonesty by us or our members, we have decided to drop the libel case."

David said...

@ Dr Aust

Or, Simon Singh could still quite easily apologise for overstepping the mark and agree that the BCA does not behave dishonestly. I'm sure that the BC would then feel much more encouraged to drop the case.

BillyJoe said...

Cubic's Rube,

"...reading "happily" to mean that the BCA knew exactly how bogus the treatments were, is not explicit in Simon's words..."

In fact there is a common association between "happy" and "ignorance" as in "happy in their ignorance"

Quoted in Google "happy in their ignorance" gets nearly 800,000 hits!

BillyJoe said...

Just to add:

Googling the following phrases to compare the number of hits gives the following results:

"happily dishonest": 189
"happily ignorant": 32,700

"happy in their dishonesty": 0
"happy in their ignorance": 795,000

And this is exactly what Simon Singh meant all along when he used that combination of words.
This is evidenced by the fact that he has never, prior to this article, or since, accused Chiropractors of dishonesty.

And I challenge Botogol to come up with a counterexample in support of his opinion that Simon made an "allegation of dishonesty".

Anonymous said...

@David

Please reply to this single question:

Did you read this: "[...]let us recall that the BCA were offered, right at the outset, a clarification in print in the Guardian, plus 500 words prominently placed in the paper to explain their position. Plenty of space to set out their view of the evidence and why they believe in these treatments." in Dr Aust's post at 07JAN2010 13:33

Because if you did, your call for an apology appears rather disengenuous - and if you didn't, the same call appears to be ill informed.

Which is it?

Kind Regards,
Jessica