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Thursday, 15 April 2010

BCA v Singh Ends Not With A Bang

The British Chiropractic Association has discontinued its case.

(However, it is the substantive case which is discontinued: there may still be further court hearings if costs are not agreed.)

One major effect of the discontinuance is that the Court of Appeal decision in Singh v BCA will not face being overturned by the Supreme Court (the former House of Lords).

The appeal case is, in my view, now binding authority on the High Court that adverse but good faith statements regarding evidence must be treated as having the defence of honest opinion.

This is an real advance, for science writing and beyond.


Another effect is that City libel lawyers touting for "reputation management" work will need to fundamentally re-think their litigation models - both in terms of tactics and strategy - when there is the possibility of internet coverage of their client's case.

BCA v Singh has shown that if a client's reputation is being taken seriously (rather than being used as a pretext for closing down criticism) then the old-style and clumsy approach to libel litigation can instead undermine a client's reputation.


So Simon's victory makes a welcome dent both to the substantive law of libel and day-to-day practice of libel litigation.

But it is only a dent.

Simon's wonderful victory should not obscure how incredibly difficult it was for him to get this far: only since 1 April has he had any advantage in this case. And at times - for example, after the preliminary ruling and at the two refusals of permission to appeal - he has been very much at a very depressing disadvantage.

And the wider problems of libel remain: there is no effective public interest defence; the menace of libel tourism continues; the costs regime is nothing less than obscene; and corporations are allowed to threaten libel suits too easily.

Anyone who had an interest in Simon's case should now follow - just as avidly- the campaign for libel reform, to which Simon is passionately committed.

Visit the Libel Reform website and if you have not signed the petition, please do so - wherever you are in the world.

We are slowly making it safer for writers and publishers in England and elsewhere to make vital contributions to a range of public debates without fear of a libel threat from English lawyers.

Our next moves involve engagement with vested interests far more powerful than the hapless and discredited BCA.

There is some way to go; but, at least, we are now at the end of the beginning.


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14 comments:

Chris Kavanagh said...

Ahem...

WOHOO!

Ben Murphy said...

Three cheers for Simon, and for everyone who helped make this happen.

Shane said...

I presume this *doesn't* mean there is any comeback for people previously wronged by bogus (honest opinion, guv) decisions by certain judges in libel cases in the UK, who might have previously caved in and settled out of court?

At any rate, a superb victory for Simon Singh. But look at it this way - £100K-200K is probably a tiny price to pay for the spectacular publicity this case has received, and the unstoppable (we hope) momentum it has helped generate for reform of the libel laws.

Steve in Dublin said...

"...hapless and discredited BCA."

Watch your back, Jack. The BCA are a notoriously litigious crowd. Oh, wait...

Hooray Simon! Science and reality prevail, for once.

Steve Jones said...

This cannot be anything but good.

However, we must not forget Peter Wilmshurst. From my perspective his case has even more worrying implications. That somebody can be sued in the UK by a US company for something said at an American medical conference is surely cause for the gravest concern.

Scote said...

Gotta love the consistency of the BCA's quit and declare victory strategy. It seems pretty weaselly of them to use this wording in their press release:

"The Court of Appeal, in its recent judgment, has taken a very different view of the article. On its interpretation, the article did not make any factual allegation against the BCA at all; it was no more than an expression of ‘honest opinion’ by Simon Singh. While it still considers that the article was defamatory of the BCA, the decision provides Dr Singh with a defence such that the BCA has taken the view that it should withdraw to avoid further legal costs being incurred by either side. "

It seems to me as if the BCA is trying to use undefined pronoun "it" to make it seem like the court still considers Singh's statement to be defamatory as opposed to the BCA. AFIK the appeals court did not say Singh defamed the BCA since that is a matter that has yet to be tried, but it sure looks like the BCA wants people to think they did.

Also, this part seems extra weaselly:

"As those who have followed the publicity surrounding this case will know, Simon Singh has said
publicly that he had never intended to suggest that the BCA had been dishonest. The BCA accepts this statement, which goes some way to vindicating its position."


It seems like the BCA is trying to imply that Singh's statement of his intent was a retraction rather than merely a statement of what he actually meant when he wrote the article, and as if the BCA "won" some how by his statement that the article has never meant what the BCA said it meant. And, even if it were a retraction, if it were such a "vindication" why did the BCA continue to peruse the case long after Singh said he never meant to imply, nor did he imply, that the BCA is knowingly dishonest.

The BCA, weasels to the end, IMO.

Alice said...

Quite ridiculously happy about this. And still chuckling over a few of the things in the BCA's press release (didn't Dr Aust tell them to say "we are most gratified that Simon does not think we're liars" - only stupid, then?).

I hope the BCA cough up all Simon's costs, given that this has taken 2 years out of his life - both in terms of enjoyment and of his writing and career.

And I also hope this is merely a springboard to a wider libel reform campaign, and that we can now turn our attention to Peter Wilmshurst, for example.

Thanks Jack for all your clear and thoughtful posts keeping so many of us up to date!

Madam Miaow said...

Congratulations to you and Simon on this result — a very important one for continuing healthy discourse in this country.

And congrats to my fellow shortlister in the Orwell Awards. Great meeting you last night.

Mike from Ottawa said...

Scote,

There is no question Simon Singh's statement about the BCA in his comment article defamed the BCA. It did. A reasonable person reading it exactly the way Singh intended could only come away with a diminished respect for the BCA and that's enough for it to be defamatory. For example, in Irving v Lippstadt, it was conceded by the defence that Lippstadt's statements about Irving, such as him being a holocaust denier, were defamatory. The issue there was whether or not they were also true.

The question in BCA v Singh was whether or not what Singh said was either true or subject to a legal defence, such as 'fair comment' or 'honest opinion', not whether the statement was defamatory.

A pedantic lead in to wondering whether, if Irving had sued Lippstadt after this Court of Appeal decision, Lippstadt's comments would have been considered 'honest opinion' or not. If it had, it might have had the unfortunate effect of preventing a trial in which Irving lost any credibility he'd ever had in the world outside those already wanting to believe in what he was peddling.

Mike from Ottawa

Dr Aust said...

Tnanks to Alice for the mention of the, er, coincidence between my earlier predictions of the BCA's spun-line-of-retreat and the real thing. I've blogged it here.

Anyway, if the University make me redundant perhaps there is a job for me in PR...

Scote said...

"Mike from Ottawa said...

Scote,

There is no question Simon Singh's statement about the BCA in his comment article defamed the BCA."


IANAL, nor familiar with British law, but it is my impression that no court has ruled that a) defamation occurred b) that Singh's defense was/wasn't adequate regardless of whether " There is no question Simon Singh's statement about the BCA in his comment article defamed the BCA." Is my impression correct or not? Did either the preliminary hearing or the appeal rule that there was defamation? I'm not familiar with the procedure.

Dr Aust said...

My understanding is that it was only ruled that "the complained of words" COULD be defamatory ("were capable of bearing a defamatory meaning"). But that is not "DID", which is for the court/jury to decide at trial.

As any scientist arguing a reasoned conclusion would tell you (let alone any high-priced lawyer), there is a world of difference between "could mean" (even if that is then interpreted in some legal jurisdiction as "automatically assumed to mean") and "does mean".

Incidentally, somewhat pertaining to this is that the Guardian has reposted the full (original wording) version of the article back on their website.

hairyears said...

Good Sir, you need a little more cynicism:

Another effect is that City libel lawyers touting for "reputation management" work will need to fundamentally re-think their litigation models - both in terms of tactics and strategy - when there is the possibility of internet coverage of their client's case.

Scoundrels who care nothing for the public's good opinion (foreign billionaires, apply within), and sinister bodies corporate who believe that the exercise of power is by definition right, know full well that 'reputation management' is a fiction. They are known for what they are - if their names are known at all - and regard the masses with contempt; and they rightly regard the media and the body politic as a service to be rented when their own opinions are to be broadcast and imposed.

The new-and-improved service that they will receive from 'reputation management' professionals will be touted with a more careful wording, or an outright 'rebranding' of a service that is, in simple terms, the misuse of the legal process to silence and bankrupt all criticism and dissent.

I look forward, with amusement, to reading the revised publicity material.

For a small fee (by legal standards!) I will happily put pen to paper and draft advertising for the other group of 'reputation management' customers: fools whose business is dependent on public trust, who would do better to respond to criticism (or an uncomfortable truth) with honesty, polite rebuttal, and engagement with the public.

Michael said...

Scote, Dr Aust,

Whether words are or aren't defamatory is simply a matter of whether, if believed, they would damage the plaintiff's reputation among reasonable persons. It is a low threshold to meet and meeting it doesn't settle things. You are perfectly entitled to make defamatory statements about people and organizations. You're just not allowed to do it if they contain statements of fact that are not true. That last part is where the rubber hits the road.

Look at it this way. Would a reasonable person reading Simon Singh's article come away with their view of the BCA's credibility (a) enhanced; (b) unaffected; or (c) diminished? Don't assume the person goes in already convinced the BCA has no crediblity. If it's (c), then it was defamatory. The questions actually at issue were whether the article, and specifically the 'words in question' were statements of fact and if they were were they true.

Now, I see no way Singh's article was not defamatory and now way it wasn't intended to be defamatory. But, being defamatory is OK in law, if you do it right, which means offering reasonable, honest opinions or demonstrably true statements of fact.

Mike from Ottawa