In which Dr Aust considers the plight of Simon Singh, the Alice in Wonderland world of defamation law English-style, and the implications of Mr Justice Eady’s ruling.
Stop Press 18/05/09 9.30 pm: Simon Singh “hopes to appeal but cannot confirm yet” Simon says he hopes to make the final decision on whether to appeal Mr Justice Eady’s preliminary ruling by the end of next week. You can read more in a hot-off-the-press account of tonight’s meeting and announcement at the New Humanist blog here.
**Apologies, this post still has some of the links missing**
So where to go with blog commentary of the BCA vs. Simon Singh case? After all, it has been said, really. Apart from Jack of Kent’s coverage, many other Badscience and sceptical bloggers have had a go. Most recently, Andy Lewis at the Quackometer has produced a brilliant post lamenting the surreal madness of a legal system which can put precise words on trial, without addressing in any way the substance of the issue of fact that was being referred to – a system, needless to say, whose prohibitive costs make it the preferred way for the rich and powerful to suppress examination of their conduct.
Plus, in just over 21 hours we will learn what Simon Singh is actually planning to do.
For a time I thought of writing a short dissertation on the meanings, ancient and modern, and formal and more vernacular, of the much-debated word “bogus”. Hence, indeed, the title of the post.
However, the excellent – actually, in context that should be “truly most excellent!” – Language Lab has got there before me, so you can go and read theirs. Suffice it to say that the High Court judgment would strike Bill and Ted (video here – note the word 44 sec in) as “totally bogus”, strictly in one of its hacker / slacker vernacular senses of “really really bad”.
Language Lab will also introduce you, via the Jargon File, to the related concepts of bogosity, and the semi-mythical bogometer. There has even been some discussion of what to name the SI Unit of bogosity – in its hacker sense of “wrong-ness” -, with some interesting suggestions coming in (one wag suggested the ”micro-Eady”, which is kind of catchy).
I rather fancy getting hold of a bogometer, which seems to be a relative of the Bullshit Detector that my mates and I used to sing about back when we were playing Clash covers several decades ago. Anyway, if anyone knows where I can buy a, like, truly righteous bogometer, let me know.
Anyway, the real questions now for Simon Singh are self-evidently (i) what are his options, and (ii) what is he going to do? Jack of Kent has covered the first of these, and as I said above, we must wait until tomorrow (Monday) night to find out the second.
I actually posted my thoughts on these two issues a few days back to a comments thread over at Respectful Insolence, hence the silence here. But in case anyone’s not read them, I will repeat (slightly edited):
“The real problem with the ruling in the present case is that it restricts Singh’s defence to one that is untenable, first off since it would require him to prove the truth of something he never meant to say and pretty clearly does not believe. And this simply on Eady’s ruling that this meaning (to paraphrase, “you accuse them of deliberate deception”) is the only way that what Singh wrote could, and would, be interpreted by a typical citizen.
The defence [i.e. the defence Eady's judgement said Singh would have to run] would also be asking Singh to prove something pretty much unprovable, even if it were true (which, again, no one is claiming it is). How do you prove someone, or a trade body, did something “with malice aforethought”? It is a non-starter, really, unless there is a “smoking gun” memo somewhere that you can find (like, to give an example, the Big Tobacco company reports about “let’s put more nicotine in cigarettes as we know it is addictive and makes people keep smoking”). Indeed, the impossibility of proving same is another reason why I would argue Singh self-evidently did not mean the article in this sense.
As Jack of Kent makes clear, the prospects of changing Eady’s bizarre ruling are poor unless it goes to the European Court, but that would require several London-based appeal stages. Of course, the legal fee-o-meter will be running (very expensively) on both Singh’s and the BCA’s legal tabs through any and all appeal stages. Worse, if Singh ultimately loses he would likely end up liable for ALL the costs of BOTH parties. The “smart” move, absent matters of principle, would be to cut and run now, issuing a public statement clarifying the meaning he ascribes to “bogus”.
I think, myself, that Singh will be tempted to appeal Eady’s ruling. The question is how he would be able to meet the running costs of the appeal and “insure” himself against the potential further costs of possibly losing. Personally I would like to see the newspaper in which he published the article, the Guardian, step up and fund his appeal against the ruling as a matter of clear public interest. The Guardian were expressly NOT sued by the BCA, which suggests they apologised for running Singh’s article (and Ben Goldacre has said as much on his blog). But the implications of Eady’s ruling for clear speaking on contentious issues in general are so chilling that I think the paper should strap their ‘nads on, get off the bench, and into the game.”
[Apologies to UK- based readers for the American vernacularisms at the end]
Now, we have no idea whether the Guardian are in any way involved, but at least some journalists, a well-known comedian, and even a politician or two are taking an interest. Private Eye ran, in the latest issue, a short column on Eady’s judgement which seemed to owe a debt to Jack of Kent’s reporting. Lib Dem MP Evan Harris has added his two penn’orth, and Observer columnist Nick Cohen is appearing with Simon Singh tomorrow when we will hear what Simon is going to do. If Singh does decide to appeal the ruling – and gossip on the internet suggests he is leaning this way – I would think he will need a legal expenses fighting fund. I would be more than happy to kick in a few quid myself, and I imagine many other sceptics will feel the same. And a few sceptical benefit evenings, or concerts, or other events, would help too. I’m sure Ben Goldacre would be available for benefit gigs, and I reckon we can also count on Dave Gorman. Wonder if Stephen Fry would like to do one too? Or Tim Minchin?
But all this must wait, of course, until tomorrow when we will know which way Simon Singh is going to jump.
Words…. don’t come easy…
One aspect of the case that has given the whole affair a surreal feel is the “libel trap-door” effect of particular words, and their imputed meanings. Hence the discussion of “bogus” above, as well as extended discussions on several blogs. Some commentators have pointed out that “bogus” seems to be a term which has especially strong and specific meaning for Mr Justice Eady when he has met it previously in the context of an allegedly defamatory statement. Others, including a libel expert commenting on Jack of Kent’s blog as “Richard Keen”, have noted that this is not clear-cut, and that other phrases Singh used may have contributed to the interpretation Eady chose to place upon his words.
Whichever it is, it still rather fries the brain cells to think that the outcome of this hearing could have hinged in large part on the use of one particular word like “bogus” – as opposed to any one of the numerous alternatives Singh might have used which are arguably harder to read as “implying deliberate deception” – such as “daft”, “unbelievable”, “discredited” “ridiculous” “wholly implausible” or “risible”, to name but a few.
Another point is the largely unfathomable – at least to the layman – nature of English defamation law. This is an issue which clearly has resonance for sceptical bloggers in general, as many commentators have made clear. There seem to be few reliable principles in defamation cases, and almost unlimited judicial discretion. An approach that works in defending one case seems not to work in defending another.
Take, for instance, an earlier defamation case familiar (at least in outline) to UK-based skeptical readers, the Matthias Rath vs. Ben Goldacre and Guardian newspapers case . This was heard by a different judge, Mr Justice Tugendhat (PDF of his ruling here). Ben G’s lawyers argued successfully at the preliminary hearing – again, as I read it, NB IANAL (disclaimer) so take with pinch of salt – that the whole of an article had to be used to give context to, and thus clarify the meaning of, contentious (i.e. argued to be defamatory) statements made within that particular article.
The judgement in the BCA vs. Singh case seems to be saying precisely the opposite. Curious. Perhaps a lawyer can explain it to me… Or are we to take it that certain “red flag” words are construed by the law of libel to have no contextual nuances whatsoever in their received meaning? Or perhaps that, going back to Jack of Kent’s pseudonymous commenting libel ninja, if one or more phrases are used in a particular way (as in Singh’s first paragraph), the law will not allow you to clarify, or set out, the meaning you thought you were giving the phrases later – even in the next paragraph?
Which raises an interesting thought. What if Singh had put the paragraph where he sets out why he regards the treatments as “bogus” before the paragraph where he talks about the BCA “promoting” them? Would that have been construed as less libellous? Or at least, would that have made the meaning Singh wanted to try to impute to the offending phrases more arguable / allowable in the Judge’s view? Some of the legal and journalistic commenters on the case (see e.g. here) have noted that earlier rulings by Mr Justice Eady had made it easier for English newspapers to mount fair comment defences of defamation actions – provided the newspaper could argue that they had clearly distinguished the known facts from the interpretation subsequently put on them. Thus the adage - “first state the established, or establish-able, facts, then give the interpretation, but do not mix the two”.
Which in a weird way reminds me of an old line about how to write a scientific paper, one which to this day promotes heated, often inter-generational, arguments:
“Don’t put the interpretation in the Results Section! It belongs in the Discussion!”
So… did poor Simon Singh simply get the paragraphs the wrong way round?
Enough word-salad. Let’s talk turkey.
Now, all this discussion of nuances of phrase and the order of paragraphs may appeal to those academic professional wafflers (like Dr Aust) or amateur lawyers-manqué, (probably like Dr Aust again), who are intrigued by words and their use and meanings.
But we can all agree that it is all enough to make your head hurt.
Let alone potentially cost you the shirt off your back.
Turning to consequences, it does not take a genius – or even a libel silk – to work out that there are a number of things that are highly likely to follow, albeit indirectly, from Eady’s judgement.
- It will make defamation and “reputation management” lawyers richer, since it remains clear that navigating the baroque and Byzantine English defamation laws is not a task for a layman.
- Sceptical commentators, on any issue, will be walking a tightrope in terms of the precise words of description they use, and even of the order of their paragraphs.
- There is likely to be even more recourse to law in the future by Alternative Medicine practitioners, and bodies like Alternative Therapy professional associations, seeking to “defend their reputation”, when people point out that their offered nostrums are unproven and sometimes known to be nonsensical.
- These lawsuits will NOT, it is clear, hinge upon the validity (or not) of the scientific statements made by the Alt.Therapy types. Not if they have smart lawyers, anyway.
- Consequent upon the last, there is likely to be less open debate of the validity (or not) of such practices – at least, I would suggest, in the mainstream media.
- The UK – more specifically England, and more specifically still London’s courts – will be ever more firmly tagged with the description “the place where there is no defence of free speech against defamation claims”. This is a common view in the US in particular, as you can infer from Pal MD’s comments here.
- And as a consequence of the last, “Libel tourism” to England will not be going away.
All. Really. Rather. Tremendously. Depressing.
I don’t want to leave you on too depressing a note, though, so here is a more positive thought. A chiropractic professional association, like the BCA, can sue you. “Chiropractic” cannot. Nor, in fact, can a body established by English law like the General Chiropractic Council (GCC) which licences chiropractors in the UK.
This point was made by the libel expert commenting on Jack of Kent’s blog as “Richard Keen”:
“It is important to keep this all in perspective.
…it is perfectly possible to use the word “bogus” to describe chiropractic. Just be careful of mentioning an entity which is able to sue.”
Which reminded me of an exchange that we had back in January when I posted my update to the Singh case. In response to some interesting comments from reader Blue Wode, who is highly knowledgable about chiropractic, I wrote:
“As the General Chiropractic Council is a statutory body established by an Act of Parliament it would not, as I understand it, be able to sue someone for defamation. So I wonder what would have happened if Simon Singh had said “Chiropractic” (in general) supports treatments for which there is no evidence base, rather than saying “the BCA”. The GCC would not be able to sue, and it would probably be harder for the BCA to claim they had been libelled than with the form of words Singh actually used.”
To which Jack of Kent replied succinctly:
So to finish, I will give you one of my favourite pithy cut-to-the-chase summaries of chiropractic (in general), from American doctor-blogger PalMD, in a post entitled “Why chiropractic is patently ridiculous”:
“I am often asked my opinion of chiropractic care. My usual answer (based on evidence) is that it can be somewhat helpful in the treatment of low back pain. That’s it. Any further claims are complete and utter [expletive] …”
Which sums it up nicely for me.
Now, I have been doing some browsing round on the websites of UK chiropractic practitioners, both in my own geographical area and further afield. Thus far, every single site I have looked at makes multiple “quasi-medical” claims about how chiropractic, and chiropractors, can help with things far beyond lower back care.
I think one might reasonably infer, from the prevalence of these claims, that they are practically “boilerplate” for practitioners of chiropractic.
You may draw your own conclusions.
But – and I must make this absolutely clear – don’t ask me anything – anything at all – about the BCA.
As Manuel from Fawlty Towers would say:
“I know nothing”.
Edit 20/05/09 – Jack of Kent has reminded me that it is English defamation law, NOT “UK” – Scotland has separate laws. “Confused? You will be… “ Anyway, corrected accordingly.