Pages

Saturday, 20 February 2010

Simon Singh and the Court of Appeal

Simon Singh goes to the Court of Appeal on Tuesday 23 February 2010.

The Court of Appeal - with a panel comprised of three of England's most senior appeal judges - will hear Simon's appeal of the (in my view) astonishingly illiberal ruling of the High Court last May.

A great deal has happened since May: the adverse ruling ignited the current campaign for libel reform; the British Chiropractic Association has (in my view) discredited itself with the Plethora; the Quacklash has placed the promotional activities of the British chiropractic profession under anxious regulatory scrutiny; and Simon Singh has stood firm in his principled and inspirational defence, for he can do no other.

With all this activity, it is important to focus on what actually is before the Court of Appeal on Tuesday.

What are the issues which the Court of Appeal is being asked to determine?

Perhaps the easiest way to answer this is to start at the beginning.

First, the defamatory passage ("the words complained of" in legalese) in Simon's original 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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."


Lets stand back and see those two sentences in the context of the paragraph they were in and the paragraph which follows:

"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. 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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions."



Lets remind ourselves of what the British Chiropractic Association allege the words complained of mean:

"…that the [BCA]:
(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and

(b) by making those claims, knowingly promotes bogus treatments."



Now look again at this pleaded meaning, but with emphasis on the gloss which the BCA have placed on what Simon Singh actually wrote.

"…that the [BCA]:
(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and

(b) by making those claims, knowingly promotes bogus treatments."



And this is what the High Court held what the words complained of meant:

"12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

13. It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct."


What the Court of Appeal has to determine is whether the words complained of are comment or factual assertions.

To do this, it has to determine what the words complained of mean.

Simon will be urging the Court of Appeal to hold that his words were comment.

Simon's lawyers can thereby be expected to emphasise the context of the passage in the article as a whole, especially the paragraph in which the words are placed and the paragraph which follows. They will also be likely to stress that it was expressly a "comment" piece on a "comment page" in the newspaper.

If the words complained of are held by the Court of Appeal to be comment, then Simon has the defence of "fair comment" which then means he has a complete defence, unless the BCA can show he acted maliciously.

However, if the words complained of are held to be factual assertions, then Simon has to "justify" these assertions; and as the assertions go to the state of "mind" of a corporation, then this may prove very difficult.

And this will be even more onerous if the meaning held by the High Court - that is, dishonesty - is upheld by the Court of Appeal.

In granting permission to appeal, Lord Justice Laws held that such a predicament could raise human rights issues: to ask a libel defendant to prove such a thing could be a disproportionate interference with their right to free expression under Article 10 of the European Convention on Human Rights.

Overall, we can expect Simon's lawyers to argue that the correct context of the words complained of, and the effect Article 10 should have in construing the burden which a defendant has to discharge in these circumstances, mean that he should be able to use the "fair comment defence".

They will also be likely to challenge the gloss which the BCA placed on Simon's words, and which the High Court upheld.

For its part, the BCA will be seeking as far as possible to repeat the success before the High Court.

The BCA lawyers can be expected to argue that the words complained of were simple assertions of fact, even if dressed up as comment.

The BCA may not go so far as to insist that "knowingly" meant "dishonestly" - the High Court in May went further than the BCA's own oral submissions on that point - but the BCA will resist strongly any attempt to allow Simon the "fair comment" defence.

It is not yet clear how the BCA will combat the Article 10 point; it may be that their lawyers will contend that "reputation" is part of the Article 8 right of privacy, though I am not aware of any case where a company's reputation has ever benefited from Article 8.


The calibre of the Court of Appeal panel in this case suggests that any judgment will be significant. The Court of Appeal may even use this case as an opportunity to re-work the scope of a "fair comment" defence for defendants being sued by companies (where a defendant cannot really be expected to "justify" a statement of the subjective intention of a corporation).

It is important to remember that this particular hearing is not about the efficacy of chiropractic, either in respect of the named children's ailments or more generally; it is not about whether there is either a jot - or a lot - of evidence; and it is not about whether the BCA happily promote bogus or any other form of treatments.

These issues have not yet been tried; indeed, there has not yet been any submissions made or evidence adduced on any of these questions.

The hearing is instead about what Simon has to prove in the event the case proceeds to trial: does he have to somehow prove that the BCA - as a corporation - knowingly (or even dishonestly) promoted such treatments? Or does he just have to show that he made a "fair comment" - leaving the BCA to try and rebut that defence?

This is an important case on an important subject; and that is not just my own view, but also that of Lord Justice Laws in giving permission to appeal:

"There is no dispute but that the subject matter of the piece was of genuine public interest. There is, as I understand it, no question as to the good faith of the appellant, no suggestion that he was actuated by malice. But in that case the litigation proceeds presumably on the footing that the appellant wrote what he honestly believed on a matter of public interest and for the purpose of serving the public interest."


If you want to support Simon, please come to the Support Rally on Monday, jointly held by Westminster Skeptics and Sense About Science (no need to book), and also come along to show support outside the Royal Courts of Justice at 9.45am on Tuesday.

And do sign the Libel Reform petition. Large numbers do make a difference.


COMMENTS MODERATION

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

22 comments:

BillyJoe said...

The BCA happily promotes bogus treatments.

Does this mean:

1) The BCA knowingly promotes bogus treatments.
2) The BCA ignorantly promotes bogus treatments.

People are often "happy in their ignorance", why should it be assumed that Simon was implying that they were knowingly promoting bogus treatments?

Should be a piece of cake! :)

(The second paragraph goes on to explain what he means by bogus treatments and, therefore, doesn't seem relevant to this question.)

BadlyShavedmonkey said...

A company is legally a person. Has the need to define a corporation's subjective opinion been addressed in other cases and in other circumstances or is this the first time the issue has needed to be resolved at all?

Botogol said...

the more I read it, the more it seems to me that Eady's summary is right on the money: Singh was alleging that the BCA promote treatments which are bogus, and which the BCA know have no evidence to support them.

Which (to me) seems to be exactly the truth - it's an (understandable) shame that Singh seems to have backed away slightly from that position.

@badlyshavedmonkey - yes, the words are capable of being interpreted as 'ignorantly' but that's not my interpretation.

John Collins said...

In reply to BillyJoe - isn't there at least one other option, something like:

3) The BCA promotes bogus treatments without bothering or caring whether they are bogus.

Or "it neither knows nor cares"

Suzanne said...

As always, I love reading what you write. Thanks for all your efforts to make the law understandable for us amateurs.

Anonymous said...

@Botogol

Looking at the first paragraph: "...but in fact they still possess some quite wacky ideas....", to me that gives a pretty strong impression that Singh was suggesting the BCA did believe in the treatments it promoted.

If someone was talking about a con-artist, they wouldn't normally ascribe belief in the product to them.

twaza (@wassabeee on twitter) said...

Thanks for the very detailed summary and explanation.

However, I do not understand why the Court of Appeal has to determine whether the words complained of are either comment or factual assertions. It seems to my simple brain that there are both factual assertions and comment.

Factual assertions: (i) *the BCA promotes treatments* (ii) *for which there is not a jot of evidence*.

Comments: the BCA (i) *happily* promotes (ii) *bogus* treatments.


If the ruling goes against Simon, it will be consistent with the recent judgement in the case of Ying Wu, a Chinese herbalist who poisoned a patient and was given a conditional discharge, because she did not know the pills were dangerous.

http://www.badscience.net/2010/02/how-do-you-regulate-wu/

It seems that some "professionals", if they have good intentions, need not bother to check the evidence for what they do to people.

Guidance on delegating treatment to alternative medicine practitioners given to GPs by the British Medical Association is also consistent with this "don't bother about due diligence if you believe it works" principle.

See comment #25 on
http://www.badscience.net/2010/02/how-do-you-regulate-wu/

Anonymous said...

I think this case is going to be a big one. I am excited to see if BCA bring out the guns and argue that although SS justifying his statements of fact could be considered by some to be onerous it would be a breach of BCA's Art 6 right to a fair trial for SS not to justify his statements of fact. As we all know Art 10 is qualifed whereas Art 6 is absolute.

In addition I have to disagree with LJ Laws on the statement that this article was not malicious. SS clearly wrote this article to promote his new book.

I think if SS lawyers had the courage they should argue justification. Surely the scientific facts that SS relied on for his book and this article will prove that the BCA knew or ought to have known that their chiropractors were 'quacks'. And therefore his statements of fact are justified!



oh the excitement!

Anonymous said...

Jack of kent. You are a Hero. Patrick of London. ps get on with your book....

zatak said...

happily simply doesn't mean knowingly. It means happily. They were happy to promote treatments. singh thinks those treatments are bogus. Hence, he thinks they are happily promoting bogus treatments.

the BCA's view on the treatments is simply not an object in the sentence. their emotional state while they are promoting them is.

This is basic logic and language. It's also incredibly obvious.

"happily" is not an equivalence class, subset or superset of "knowingly". They are different words. They are very obviously entirely different words that represent entirely different notions.

It would take quite a special context to change that, and I can't see that context here, nor can I imagine it coming up in the course of daily life or imagine what it might be.

Or else I've got it wrong? that would imply that "unknowingly" is equivalent to "sadly". But that would imply that ignorance isn't bliss, and I think it probably is actually.

It's also a bit repellent and depressing to people who aren't ignorant, who are miserable anyway on account of knowing things, as I demonstrated with the watertight argument in the preceeding paragraph.

And here, my lord, I rest my case.

zatak said...

I would leave one small non-joke addendum:

He really never claims that they knew the treatments were bogus. I think a strong claim can be made that he asserted that they knew the treatments didn't have much evidence to support their effiacy.

But that is not to assert that they knew they were bogus.

That assertion isn't made, on any sensible reading I can come up with. He asserts that the treatments are bogus. he asserts they provided them, and that their emotional health was good while they did that. But not that they knew of the bogusnessery occuring.

BillyJoe said...

botogol,

"the more I read it, the more it seems to me that Eady's summary is right on the money"

Maybe you can't read, have you ever considered that?

"Singh was alleging that the BCA promote treatments which are bogus"

Correct so far.

"...and which the BCA know have no evidence to support them."

But where on Earth did you read that? You're reading things that simply are not there.

"Which (to me) seems to be exactly the truth"

Where's your evidence that BCA knew the treatment is bogus as opposed to not caring; or not knowing the meaning of evidence.

"it's an (understandable) shame that Singh seems to have backed away slightly from that position."

You cannot back away from a position you never held in the first place. It's quite possible that he is heading towards that position though.

"@badlyshavedmonkey"

You see, you can't read! That was not badlyshavedmonkey.

" yes, the words are capable of being interpreted as 'ignorantly' "

Of course they are.

"but that's not my interpretation."

Who really cares. It's what Simon meant that's important.

twaza (@wassabeee on twitter) said...

Zatak

I am happy now that I know ignorance is bliss.

Is ignorance a superset of happiness?

In other words, can one chiastically conclude that one who happily does something does it ignorantly?

zatak said...

twaza: what you say is possible, certainly. However please do not rely on my work when reaching conclsions regarding this matter.

I think I may have spotted some logical errors in what I wrote. I'm not certain. They are like shadows, moving across my mind.

Anyway

"ignorance is bliss" would mean not that ignorance is a superset of bliss, but that they are exactly the same thing. One word can be used in place of the other in any context.

So I have clearly proved that in happily promoting treatments, they *must* have been unknowing, so he cannot have claimed that they were knowing without contradiction. And he didn't claim that anyway.

Did he.

But see the lengthy legal dsicussions in the US regarding the meaning of the very enigmatic word "is", from the clinton era.

BillyJoe said...

twaza asked:
"can one chiastically conclude that one who happily does something does it ignorantly?"

I think we're looking at a neural network rather than a chaismus.

The ignorant can be happy or sad.
The happy can be ignorant or wise.

There is no justice.
Just happenstance.

GoodOldBoy said...

Isn’t it all a little ironic?

As I understand it, Simon Singh has apparently accused the BCA of a lack of meaningful, scientifically solid evidence, and yet he (the eminent scientist) has written something so ambiguous that a whole debate (and court proceedings) has since developed to try to determine what his piece actually meant…….priceless!

A.D.Macrae said...

There are two types of issue at stake; legal and factual.
Today, the legal will be addressed.
This concerns me less than the factual issues.

I would prefer to see Simon's comments treated as what I take them to be - and what I think he meant them to be; simple statements of fact. He is a rather clear writer.

"Knowingly" means "Knowingly".
"Bogus" means "Bogus".

Was what he wrote "plainly defamatory"?
Yes.
As it should be.

The issue of changing the libel law is important.
The truth is more important.

Shane said...

Any update on what happened at court today?

im_michael_young said...

I am agreed with the above commentator that, as a purely conceptual matter, the "fact" / "comment" distinction fails. (Like the supposed "opinion" / "fact" or "theory" / "fact" distinctions.) There can be true opinions, or true theories, and those would indicate facts.

Weird distinction to put much legal weight on, although maybe this is just a legal system trying its best to temper a harsh libel law? (The "opinion" fiction gives some wiggle room.)

Marci said...

Update: http://www.indexoncensorship.org/2010/02/simon-singh-chiropractic-bca-libel-appeal/

amie said...

This masterly review of the day much appreciated. On the way to the pub Nick Cohen kept telling me he must introduce me to a wonderful person called David who I think must mean you, but he got distracted- I would like to have met you. Anyway I hope you can help with these gaps in my notes This is a bit of a cheek to ask you this.I do occasional posts on Harry's Place and am thinking on a post making a few observations, (rather than direct reportage)- but want to be sure my observations are based on having heard aright as I am a little hard of hearing and the judges do speak so softly.

During Page's argument, it was established that by evidence the Defence meant scientifically reliable evidence. The Reply to the Defence had been that the defendant's approach to evidence is wrong in principle and misguided. The proposition that evidence is meaningful only if based on RCTs is wrong. At that stage, Sedley said If a court pronounces on that, it ceases to be a free country and no one could have an opinion.
Question: Do you recall a propos what Sedley made this statement? What is the “that” which a court would be pronouncing on? Was it regarding the preceding statement re RCT?

Q2: Did I correctly hear Rogers state that the proposition that only RCT is evidence is out of line with every accepted medical opinion? She was discussing whether to have one or two experts as to what is evidence.
Q3: just after the CJ's slip of the tongue when he asked whether the statement that homeopathy works is a verifiable statement, he said something about if Gallileo were tried in court, according to the facts as they were then. Can you recall any more detail about the context of the Galileo statement?

Thank you

zatak said...

GoodOlBoy:

Please read what Simon Singh wrote, and decide for yourself whether or not it is ambiguous. That is, if you have the ability to do so. I do wonder about your choice of moniker.

There is no irony here at all, in any way. The point is not that what he wrote was ambiguous; the point is that anything anyone writes can be picked apart and made to appear something that it is not. It's called postmodernism. And it really shouldn't be the foundation of libel law, as it seems to be on our island these days.

The debate is about libel law in the UK, and what should be the absolute freedom to place scientific evidence in public fora without fear of spurious illformed attacks destroying your life savings or brankrupting you.

Read what he wrote. Read some Dickens too while you're at it, that has relevance. "Great Expectations" would be a good place to start.