Pages

Saturday, 19 June 2010

Does science really still have a problem with libel?

Are there really still problems being caused for scientists and science writers by the English law of libel?

On the face of it, that seems an odd question to be asked on this of all blogs.

But it is an entirely serious question, and it is not one which is intended to be unduly provocative.

Indeed, unless those of us who contend there is such a problem can answer this question in a calm, informed, reasoned, and ultimately persuasive manner, then our influence may be minimal in the upcoming debate on the legislative reform of libel.

The onus is on those of us who are urging reform to articulate and evidence the problem which requires a solution, and why the solution we propose addresses that problem.

Mere assertions of an adverse effect will not be enough.

And there is perhaps a danger that we are so accustomed to repeating the charge that libel should be kept out of science that we have lose sight of the nature of the problem.

Or it may be that we do not realise that if there was a problem, it may have already been solved by the Court of Appeal in British Chiropractic Association v Dr Singh.


The starting point for grasping the nature of any problem must be the spate of libel cases which involved science and medicine in the years running up to the Simon Singh case.

Simon was first threatened over his Guardian article on 28 May 2008 and the BCA's claim form was issued on 10 July 2008 (see here).

There was by then cause for serious concern for how libel had been impacting on science for at least three or four years before the BCA's actions.


It appears Gillian McKeith was threatening her various libel claims from at least 2004 onwards (see here), though details of these claims are currently difficult to obtain. In particular, it is not clear what is the current status of her claim against The Sun.

Andrew Wakefield issued his claim against Brian Deer and Channel Four on 31 March 2005 (see here and here).

The claim was abandoned on 2 January 2007. As to the details of the case brought by Wakefield, do see Deer's excellent account here.

In 2007, a paper co-written by Professor Francisco Lacerda on the deficiencies of certain lie detection equipment was pulled from the International Journal of Speech, Language and the Law after a libel threat from the manufacturers (see here).

And in the summer of the same year, Matthias Rath launched his claim against Ben Goldacre and the Guardian (see here). Rath dropped his case in September 2008.

On 11 October 2007, the Society of Homeopaths sought to take down a blogpost by Andy Lewis questioning their approach to claims by homeopaths that they could treat malaria (see here).

On 21 December 2007, NMT Medical Inc issued its now notorious libel claim on Dr Peter Wilmshurst (see here). The case is still ongoing.

And then in 2008, in what (for me) was the most sinister of all the recent claims for libel in a science context, General Electric Healthcare issued a claim against the radiologist Henrik Thomsen.

(All key documents on this important case are hosted here by the excellent ProPublica website for public interest journalism. Anyone interested in medicine and the law should read the original documents and see the horror unfold for themselves.)

I intend to write further on this one extremely nasty example of libel abuse. The case was dropped in February 2010, but only after Thomsen's poacher-turned-gamekeeper defence lawyers Carter-Ruck threatened to countersue.

And also in 2008, there was the libel threat against David Colquhoun and the New Zealand Medical Journal by the New Zealand chiropractors (see the the splendid editorial here).


So when Simon received the libel threats from the BCA in May to July 2008, it was against a background of a few years' use and abuse of English libel law against scientists and science writers.


But the intention of those threatening a libel claim is rarely to actually bring one.

Instead, the intention of those who use libel threats as part of so-called "reputation management" is for the potentially adverse statements not to be published in the first place, or to be quickly taken down.

For the defendant to call the bluff of the claimant, as which occurred in almost all the above cases, is exceptional.

It is not thereby a surprise that most of the claimant lawyers in the cases mentioned are not actually from the top City law firms specialising in "reputation management".

They wouldn't have been so clumsy.


For me, the greatest concern for science and medicine from libel is not the famous headline cases.

Instead, it is the ongoing, deadening effect fear of libel has on science writing and publishing.

This became most apparent in the days after the adverse ruling of the High Court in the Simon Singh libel case.

Until then I had more-or-less focused on his case, though I was slowly becoming aware of other examples of how libel was operating in the context of science and medicine.

But at the support meeting for Simon which was organised at the Penderel's Oak on 18 May 2009, it was the attendance of countless working science journalists and editors which was the most revealing.

The real impact of libel on science seemed not to be about the rare cases where the defendant fought back.

Rather, the impact was a chronic "libel chill" - the everyday practice of not publishing, or not even writing, because of the anticipation of a libel case.


Of course, it is difficult to quantify the effect of such a "libel chill".

However, in February 2009 Sense About Science* placed evidence before the Culture, Media and Sport select committee on the extent of the adverse effect libel was having on everyday science writing.

I urge you to read it.


But does this evidence, when combined with the above examples of the use and abuse of libel, really substantiate the contention that there is a problem caused to science by libel?

And, if not, what evidence could substantiate such a contention?


These are difficult questions.

And a further difficult question is the extent to which there still needs to be a campaign to keep libel out of science in view of the Court of Appeal judgment in British Chiropractic Association v Dr Singh.

That judgment, to my mind, establishes that it is "fair comment" (or "honest opinion") to make statements about the value of evidence. Accordingly, for Simon to say "not a jot of evidence" was an expression of opinion, and he was entitled to say this, unless he was being malicious.

The panel of the Court of Appeal in that case (the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sedley) was the strongest one conceivable and, unless overturned or limited in its scope by a future Court of Appeal or the new Supreme Court (both of which are unlikely, but theoretically possible), the Court of Appeal judgment is now binding on the High Court.

So libel law is now to be kept out of good faith disputes over evidence, whether in a scientific context or not.

That is a step forward.


It is also perhaps significant that since the claim against Simon, there has not yet been another publicly-known libel claim brought against a scientist or science writer.

That is another step forward.


However, neither the Court of Appeal judgment nor the role of the internet in countering misconceived libel claims will mean that "libel chill" has gone away for science or other evidence-based writers.

It is still straightforward to threaten or bring a libel claim pitched in terms other than in respect of the evaluation of evidence (for example: the BCA said Simon had accused them of dishonesty; General Electric Healthcare accused Thomsen of malice).

And the impact of the internet will always be contingent on bloggers and others volunteering to spend time and energy on cases which may or may not come to light.


So, in my opinion, libel chill still remains for scientists and science writers.


For me, the best way of removing libel chill would be for a statutory general public interest defence to be introduced into English libel law.

This defence would not be limited to scientists and science writers; nor - as is the case with the Reynolds defence, would it be a defence limited just to well-organized and "lawyered" newsrooms on a good day, with a fair wind, and with a sensible judge.


It would be a public interest defence which would go to the subject matter of the statement made without malice.

The new Lord Lester Bill, on which I intend to do a series of blogposts, seeks to introduce such a defence.

Would such a reform work work?

And are any of the other reforms in the Bill of any help?


The tests for me in answering these questions are:

- whether the proposed reform would have deterred or prevented any of the libel cases to which I refer to above; and

- whether the proposed reform will tend to remove the "libel chill" which currently affects so many scientists and science writers.

These are hard tests, and we should be rigorous in applying them.


Free discourse is crucial for progress in science, medicine, public health, and public safety.

No right to private reputation should hinder such discourse, unless malice or bad faith can be shown.

Lord Lester's Bill will have its second reading on 9 July 2010 - the essential website for following its progress is here.

In my view, everyone who followed Simon Singh's case, on this blog and elsewhere, should follow the progress of this Bill just as avidly.

But it should not be followed uncritically.

At every step, and with every amendment, we should ask whether the Bill will protect writers and publishers seeking to contribute on matters of public interest, including science and medicine.

And perhaps any legislative change will not only mean that the likes of Brian Deer and Ben Goldacre, Henrik Thomsen and Peter Wilmshurst, and of course Simon Singh, will never have to face the ordeal of a libel suit again; it will mean that "libel chill" in matters of public interest will be banished at last.



*Declaration of interest. I am delighted to have just been invited on to the advisory council of Sense About Science.


COMMENTS MODERATION

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

8 comments:

teekblog said...

this may be a simple-minded view, but to me it isn't the cases that reach court that are the problem any more, following Singh vs BCA. Trouble is without a robust public interest defence, cases will still be threatened, which is more than enough to silence scientific comment - which makes Lord Lester's bill all the more important...

Dr. Brian Blood said...

Like many areas of the law, the law of libel exists to recognise an inescapable reality; that in the law, as in life, we meet competing rights. Libel law attempts to regulate what we can publish in the exercise of 'freedom of expression' in particular where that publication might infringe the proper rights of others.

Since libel actions, by their very nature, take place after the event, there is, IMO, nothing particularly wrong with some degree of 'chill' as a way of limiting the potential for litigation. But the 'chill' must exist in an environment where the law functions predictably, rationally and openly.

From our narrow viewpoint we see the law of libel as being a problem for science, but, in truth, it is a problem in many other areas too.

for example, see: http://www.spectator.co.uk/coffeehouse/5922458/how-whelan-and-co-exploit-britains-libel-laws.thtml

It can impinge even on the writings of serious authors as was evidenced when earlier we were discussing George Orwell, his publishers and several of Orwell's books.

One can assume too that newspaper companies retain 'in-house lawyers', whose job it is to clear copy before it appears in print, because libel is not to be taken lightly even by those with far deeper pockets than the average GP, medical researcher or science journalist.

The BCA v Singh case has, in my opinion, greatly strengthened the hands of those who choose to comment honestly on matters of science and where there is a clear public interest.

The difficulty that remains, however, is that it may still fall to a court to determine whether a comment is honest, fact or expressed opinion, properly fits within the definition of 'scientific journalism' and that there is genuine 'public interest'.

Singh was fortunate because in his case the position was quite clear as was confirmed once he had the benefit of a rational judgment.

There needs to be an inexpensive quasi-judicial process that examines 'the words complained of' in the light of any available defence and decides well before large sums have been expended whether the case has any merit.

The bar to proceed to law should be set reasonably high, but not impossibly so. Certainly, at that stage, an opportunity to settle should be available, again supervised as part of the same quasi-judicial process.

In the case of material appearing in the print media, where a complainant refuses an offer to publish a retraction or correction he should be barred from making any claim for costs.

I do feel strongly that to 'protect' all comment of a scientific nature from the law of libel, particularly where that comment has been negligent or malicious, is to encourage the worst type of 'churnalism' and 'gratuitous puffery' that we find so often passed off as 'scientific journalism' in the press today.

Certainly, there should be an absolute bar to the use of the law of libel in matters of scientific dispute that rely significantly on an examination and evaluation of science-based evidence.

It is not for the law to decide the 'truth' in evidence, otherwise we find ourselves back when Milton visited Italy and '... found and visited the famous Galileo, grown old, a prisoner to the Inquisition for thinking in Astronomy otherwise than the Franciscan and Dominican licencers thought'.

twaza (@wassabeee on twitter) said...

I think the libel chill may be thawing.

A couple of weeks ago the Sunday Sun in Newcastle asked for, and printed almost verbatim, my opinion on pycnogenol, which was being promoted for hay fever and lots of other conditions. I briefly summarised the absence of evidence, and concluded that pycnogenol looked like a treatment in search of a disease.

I resisted the temptation to test the limits by talking about jots of evidence and bogus treatments.

That the Sunday Sun thought to ask for an opinion on the evidence, I suspect is the result of Ben Goldacre's campaigning for health and science journalists to report facts rather than fantasy.

That the Sunday Sun felt able to publish my comments, I am sure is the result of Simon Singh, you and others campaigning for freedom of expression.

Thank you very much!

Dr. Brian Blood said...

twasa might like to review this survey of various 'alternative' hay-feaver treatments written by the 'former BBC science correspondent' Dr. Toby Murcott

http://women.timesonline.co.uk/tol/life_and_style/women/body_and_soul/article2070013.ece

The relevent section reads:

"Pycnogenol (pine bark extract) In hay fever sufferers, the immune system reacts to pollen by releasing histamine, the hormone that causes the swelling and itchiness of the nose and eyes, and the sneezing. It’s claimed that pycnogenol, an extract from the bark of the French maritime pine, lessens these symptoms by reducing the effect of histamine. Adults should take one to three 30mg capsules daily.

Any evidence? Pycnogenol contains a number of biologically active chemicals. It has been shown to have antiinflammatory properties in animal studies so it is possible that it might relieve hay fever symptoms but there are no studies looking at this directly. £10.79 for 30 capsules from www.hollandandbarret. co.uk"

I had a feeling I had come across Dr. Toby Murcott somewhere before and then I turned up Ben Goldacre writing about the nonsense called Cranial osteopathy.

http://www.badscience.net/2004/09/

Murcott gets a mention or two and none is particularly flattering.

I believe that Murcott is (or was) a biochemist, not a medical doctor.

Stephen Moss said...

Murcott should at least know that histamine is not a hormone! Guess Biochemistry degrees ain't what they used to be.

Jack of Kent said...

Please try not to veer any further off topic...

Dr. Brian Blood said...

Dr. Toby Murcott has written at some length about the 'problems' caused by his use of the title 'Dr.' when he is writing or speaking on health issues.

ref: http://www.firstscience.com/home/blog/123.html

This problem has been flagged up too by Ben Goldacre:

ref: http://www.badscience.net/2004/09/

"When I see a box labelled “What’s the evidence?” next to a health article by a Dr Toby Murcott, call me naive, but I assume he’s a medical doctor, rather than a science journalist with a PhD."

A short biography appears on the University of Glamorgan 'Science Communication Research Unit'

ref: http://scicomm.research.glam.ac.uk/staff/

(there is more here: http://www.battleofideas.org.uk/index.php/site/speaker_detail/45/)

"Tony writes regularly for The Times, teaches on the University’s associated MSc programme in Communicating Science, and speaks to anyone who’ll have him and has a particular interest in how scientific research is used and abused when it reaches the public domain"

I have already pointed to Ben Goldacre's assessment of the Murcott's involvement in promoting the unscientific ideas of 'Dr Gillian McKeith (PhD)' and one does wonder if Muurcott's self-professed interest in "how scientific research is used and abused when it reaches the public domain" is evidenced in his various published writings.

As a provider of 'expert help' to the website 'goodtoknow.co.uk', Toby Murcott passes on advice from Colitis UK on the management of ulcerative colitis or Crohn's disease. The title, written in a font several sizes larger than the advice, reads "Dr Toby Murcott, chair of the Association of British Science Writers, on ulcerative colitis"

His book "The Whole Story" - a survey of complementary medicine - was reviewed in the Guardian by Phil Whitaker.

http://www.guardian.co.uk/books/2005/feb/05/featuresreviews.guardianreview1

Murcott's book is not in any way a robust critique of complementary medicine such as we find in Simon Singh and Edzard Ernst's 'Trick or Treatment' - more an anodyne apologia.

Bearing in mind Murcott's apparently uncritical contributions to the The Times newspaper's health and lifestyle columns on topics related to 'alternative treatment' it comes as some surprise to read a report of a lecture he gave at Cardiff University.

ref: http://caerdydd.ac.uk/jomec/newsandevents/news/10tobymurcottlecture.html

"Dr Murcott also talked of the need for science journalists to do more than simply convey information handed down to them from scientists, and urged them to play more of a watchdog role."

"Science journalists need to play the role of intelligent critics as well as relays of scientific findings or they risk becoming an uncritical "priesthood" to science, he argued."

Surely, one must 'walk the walk', not just 'talk the talk'.

twaza (@wassabeee on twitter) said...

@Dr Brian Blood

Thanks for warning about Murcott. I had not heard of him.