Simon Singh today won in the Court of Appeal.
The Court of Appeal held he was expressing "honest opinion".
It is a stunning judgment, quoting Milton and expressly adopting a US legal maxim that: "Scientific controversies must be settled by the methods of science rather than by the methods of litigation".
You can read the judgment in full here.
And so the British Chiropractic Association - which happily promotes bogus treatments even though there is not a jot of evidence - lost.
The BCA - discredited since the plethora - has announced that it is "disappointed" and that it is "considering its position" in respect of what has always been a staggeringly misconceived libel claim.
The judgment is packed with interesting things and will repay careful study.
So I will blog in detail over the weekend, once I have fully digested the case report.
But so far, on a quick read-through, the following elements seem particularly significant:
[On the BCA's conduct]
"By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics." [from para. 18]
[On the fundamental free speech implications of the case, probably penned by Sir Stephen Sedley]
"...the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:
""I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."
"That is a pass to which we ought not to come again." [from para. 23]
"What "evidence" signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient's condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be." [para. 26]
[On the meaning of the words complained of]
"Once the allegation that there is "not a jot of evidence" to support the claims is properly characterised as a value judgment, the word "happily", even if synonymous with "knowingly", loses its sting. But we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, "blithely". The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims." [para 30]
[On libel and scientific controversy, and note the strong word "adopt", rather than just "note" or "refer to"]
"We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):
""[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."" [para. 34, emphasis added]
[And the stress which needs to be placed on free expression on the now renamed "honest opinion" defence]
"The law of defamation surely requires that language should not be used which obscures the true import of a defence to an action for damages. Recent legislation in a number of common law jurisdictions - New Zealand, Australia, and the Republic of Ireland - now describes the defence of fair comment as "honest opinion". It is not open to us to alter or add to or indeed for that matter reduce the essential elements of this defence, but to describe the defence for what it is would lend greater emphasis to its importance as an essential ingredient of the right to free expression. Fair comment may have come to "decay with … imprecision". 'Honest opinion' better reflects the realities." [From para. 36]
And there is a lot more besides.
One must pay the highest possible tribute to Simon Singh, whose determination not to be bullied, led to this most pleasing of judgments.
Full case analysis over the weekend.
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