Robert Dougans (Simon Singh's solicitor) and I have an article in today's The Lawyer on BCA v Singh and the impact the internet had on the case - see here.
Any thoughts?
Is "wikilitigation" a useful term?
Either leave comments at The Lawyer or below.
COMMENTS MODERATION
No purely anonymous comments will be published; always use a name for ease of reference by other commenters.
Monday, 5 July 2010
Subscribe to:
Post Comments (Atom)
Posts
10 comment(s):
There was mention on the really fundamental change which was surely based on the narrow definition of the word "bogus" that Judge Eady used in his initial ruling and the determination as to whether the relevant part of the Guardian article could be considered a "statement of fact".
It was my understanding, that based on Judge Eady's ruling, that Simon Singh would have been required to prove the BCA had knowingly made fraudulent claims, and almost impossible task. Simon Singh's supported did an excellent job of demolishing the substance of the BCA's evidence, but that would not have been enough. Without the appeal court overturning Justice Eady's rulings on the applicability of the law and interpretation of the status of the passages, then I suspect this would have been to no avail. The BCA would have only needed to demonstrate they believed the evidence they referenced. Yes, they might have been humiliated in court as to their competence, but I suspect most of the media would only have considered the eventual verdict.
So, to me, an even more interesting point than Simon Singh's support community in demolishing the technical basis of the BCA's evidence, was their role in changing the entire climate of debate. I realise, to some, it's sacrilege to suggest that senior judges are swayed by public mood and media campaigns, but is this truly the case? There is a sort of democratic deficit in common law in that it is the decision of a small elite. Indeed, in some specialist areas, an elite of just one eminent judge.
Now we can never know if the ruling of the appeal judges would have been different if there had not been the media and Internet attention paid to this case, but I think it a question worth asking. I, for one, do not believe that the judicial authorities can be operating in a societal vacuum, objectively applying legal principles.
To me, this was not a case primarily decided on the evidence, but on a decision made on where it is appropriate to apply the law. Indeed the appeal court judges said as much.
Useful or not, it's an extremely ugly term; nasty on the eyes and borderline unpronounceable. Could we please have a different one?
I would argue that we had two cases running in parallel; one in the law courts, the other in the court of public opinion.
The case before the law courts engaged the attention of complainant, defendant, lawyers, advisors and judges.
At the same time bloggers, amici curiae to the court of public opinion, were submitting a stream of rational analysis and thoughtful opinion.
The BCA's case centred on a belief that what Singh had written damaged its reputation.
But what is reputation?
It is what is generally said or believed about a person's or thing's character.
In this case, that belief was not what the BCA thought about itself, but what others particularly members of the general public thought.
The problem for the BCA was that while Eady J's judgment on meaning appeared to put them on course for a famous victory, their case in the court of public opinion was steadily unravelling.
It was there that the 'plethora' blew up in their faces, even while they might have hoped to deflect attention from it in the law courts.
Once the Court of Appeal had taken from them all the advantages they had thought they had gained by Eady's judgment, they must have given them good reason to fear that their failure in the court of public opinion was about to be echoed in the courts of law.
One should never forget the lesson to be drawn from Whistler v. Ruskin. Whistler sued the critic John Ruskin for libel after the critic condemned his painting Nocturne in Black and Gold. Whistler won the case, but only got one farthing in damages.
The case damaged the victor far more than the vanquished.
The BCA's failure in the court of public opinion will have done far more damage to its reputation than anything written by Simon Singh and it is this fact alone, we hope, will place a 'chill' over those contemplating raising such matters before English courts in the future.
Crowdsource litigation?
Hmmm. 'Wikigation'? Not much better than 'wikilitigation'.
How about 'WikiLiti'?
Maybe just not have a term for it would be best.
Regarding a suitable name -
Well it's *nothing* to do with wiki.
So I suggest:-
wwwitigation - With thanks to Jonathon Woss:-)
witigation is perhaps easier on the eye.
Other suggestions:
blogsuit (as opposed to lawsuit)
wikigated (as opposed to litigated)
"Webjury"?
"Blogister"?
"Lawwwer"?
Ugh... Make that:
"Lawwwyer"
I've read your linked article, but my optimism is tempered by wondering how long it will be before claimants of the BCA's ilk find some way to hide their action behind some equivalent of the super-injunctions which have been used not only to silence the media, but to prevent any reporting that any injunction has been granted.
Bloggers cannot blog about legal actions which have been kept secret.
Post a Comment