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?
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