Sunday, 28 February 2010

Science and Libel: Beyond the Simon Singh case

English libel law operates on the basis that statements can be divided between comments and assertions of fact.

Of course, this seems odd to the layperson, and anyone thoughtful can immediately see that this is a problematic distinction.

So it is important to understand why English libel law does this.

The characterisation of a statement as a comment or an assertion of fact goes to the defence which the defendant has to show.

With a comment, the defendant has to show it was a "fair comment" (or "honest comment" as it is increasingly called). What this can mean is that the defendant has a complete defence, unless the claimant can show malice.

However, with an assertion of fact the defendant has to "justify" the statement, that is to show it is true.

Many of the injustices and counter-intuitive cases in English libel law come from the defendant having to show something as a fact. This is the current predicament of Simon Singh.

In the Court of Appeal hearing last week, the judges showed their awareness of the problems this approach has in respect of scientific judgments.

"There is no evidence" and "there is not a jot of evidence" may seem positive statements capable of simple yes/no verification; but what if the word evidence - in the context of scientific debate - itself carries an evaluative meaning?

For example: to say "that's not evidence" to another is not to factually deny that something has just been offered as evidence.

It may be that one result of the Singh hearing is that judges extend the "fair comment" defence to scientific judgments.

But would such an approach really work?

Would scientists saying there is no evidence (or that there is evidence) be content with the law treating them as mere pundits with opinions?

Or would this be worth the price of being free of the threat of a libel claim in an English court, unless the claimant can also show malice?


No purely anonymous comments will be published; always use a name for ease of reference by other commenters.


gyg3s said...

A large part of the problem is that we do not have any Daubert criteria which would allow us to determine what is scientific and what is not.

This is tragic in cases such as R v Hoey, especially when one reads Mr Justice Wear's judgment about the disregard of the Science Select Committee's report of 2005.

It is pathetic in civil law cases such as the one that you mention.

Mark Pack said...

Not sure I agree that people find the distinction between fact and comment odd. I think most people have a pretty strong instinctive understanding of the difference between me saying to them "You murdered someone" and "You are a fool".

The problem isn't with the idea of the distinction; it's with trying to codify that particular (as you rightly point out) in scientific cases.

twaza (@wassabeee on twitter) said...

Thanks for the explanation. I now almost understand the legal distinction between matters of fact and opinion.

I think that grammar can give us some insights about the nature of evidence that are relevant to Simon Singh's case.

Evidence is a mass noun; it is not countable. You can't have (in English at least) two evidences. You can only have not a jot, or some, or a lot of evidence.

Although evidence cannot be counted, it can (and ought to be) weighed for its reliability and relevance.

When a scientist says that there is not a jot of evidence, what they mean is that, if anthing has been presented as evidence, it is unreliable or irrelevant or both. Bogus evidence is not evidence.

I would hope that this also holds for evidence in a court of law.

Botogol said...

'not a jot' certainly increased in significance last week when the appeal court focussed on it. Previously the phrase hadn't had much scrutiny: comment focussing on the other problematic words in Singh's article (bogus,happily)

'not a jot' was another unfortunate phrasing for SS, for of course there are 'jots' of evidence. Every anecdote and half-baked study probably amounts to exactly that: a jot.

Of course there is no good evidence, no reliable evidence. Which is what SS should have said.

on the face of it 'not a jot of evidence' = looks dangerously like a wrong statement of fact.

In court SS's lawyers were saying the 'not a jot' was actually a comment on the quality of the evidence. ie the 'evidence' seen doesn't amount to a jot. That interpretation may be good enough.

spamman said...

Extending fair comment to scientific judgements is not a good solution. It would leave the chilling effect of libel laws on reporting of corruption, fraud and crime committed by wealthy individuals.

It would create the problem of what is scientific. This may seem obvious but there are plently of unreasonable scientists and crackpots who claim to be scientific.

The defence of fair comment is what is required but fair comment should be extended. If the alleged libel is against a public figure and the subject is a matter of legitimate public concern then it should be sufficent to show that opinions epxressed are reasonable not that they can be proved to be true.

D. Fendant said...

From geocentricity to aspects of global warming, the history of science is littered with fallacies that were once facts. My own experience is one of facts forged by a combination of commercial, cultural and ideological pressures. Such facts as chimed with political fashion formed the backcloth to my being sued when alternative facts existed but didn’t carry the same high authority. Tinkering with semantics or the rules of evidence or even the Daubert criteria may not have counteracted state science that supported commercial protectionism. I succeeded less by legal points-scoring than by a technical knockout resulting from continued public debate, a change in fashion, political intervention and then scientific progress that produced new facts. Without the public debate the science would have remained stuck and I subjugated. The recent remarks of the Lord Chief Justice, which retrospectively advocated a non-judicial playing field at the outset of the BCA’s challenge to Simon Singh, rekindled my feeling that, without going as far as pre-moderation, the court could be influential as a gatekeeper - guiding opposing parties towards a productive means of arbitration rather than setting them on a scientifically stultifying collision course. I certainly viewed the court as heavy-handed in summarily sanctioning a financially one-sided action against me when the issue needed stimulating rather than suppressing.

Jon said...

Surely one solution would be to abandon the presumption that all defamatory claims are false. This would create the possibility of a test similar to that required for malicious falsehood claims to be introduced. I accept that an approach like this would require a great deal of fine tuning but as a possible approach I believe it has merit.