Archive for the ‘Legal chill’ Category

Email your MP on libel laws and the libel debate – with updates

October 20, 2009

Tomorrow (Wednesday 21st) parliament will be debating the Libel Laws, specifically prompted by the Trafigura case.

Now is the time to let your MP know that this is something you take seriously.

Skeptical blogger Simon Perry has penned an example of the kind of letter you could write, though of course your own words are best. You can find Simon’s letter here.

You can email your MP in minutes via

http://www.writetothem.com/

- just enter your postcode and follow the links.

I have just emailed mine – letter below. He is a Lib Dem so I have mentioned Dr Evan Harris MP, one of a sadly small number of scientifically knowledgeable MPs now that Ian Gibson is no longer in the Commons. But please, please, write a letter to yours. Stress the reasons why you are concerned, if possible relating them to your own profession, or experiences.

But do let your elected representative know this is something that you think matters.

As Evan Harris himself noted in a comment on Jack of Kent’s blog:

“The recent publicity of the impact of libel law in science and in writing and in medical journals, has now been fuelled by the impact of libel on Parliament. There is nothing like Parliament itself being impacted to get politicians to take notice.”

I particularly hope those of my academic colleagues who read this blog – and I believe there are a few – will email their representatives. If they do, could they please include their titles? “Dr” is good – “Professor” still better. And “FRS”, if you have one, better still.

My e-mail:

————————————————————-

Dear XXXX

I understand that tomorrow there will be a debate in parliament on the subject of libel reform.

Recent events with the Trafigura case have given emphasis to the appalling effect of English libel laws in stifling the public’s right to know. As a professional scientist and writer about science, I am particularly worried about the way that English libel laws are being used to stifle scientific debate in the UK. This has reached the point where many scientists are not bothering to make their opinions heard. Those that do criticise other individuals – or more often companies or trade bodies – typically on scientific matters of clear public interest, are being heavily punished for doing so.

To give a couple of recent examples, medical doctor and journalist Ben Goldacre was involved in a lengthy libel battle following his criticism of Dr Matthias Rath, the vitamin “entreprenuer” who claimed anti-retroviral drugs were ineffective in treating AIDS and offered his vitamins as an alternative. Despite the fact that Goldacre and the Guardian won, they still ended up £ 150,000 worse off. Had Goldacre not had the full financial and legal backing of the Guardian, he likely would have had to “fold”. The scientist and author Simon Singh is going through a similar, though arguably worse, situation right now with the British Chiropractic Association. They are suing Singh personally for publicly criticising some of their treatments for which scientific evidence is slim to non-existent.

“Reputation management” by large companies in England has become a tool to suppress criticism. This has many dangers.
At the start of the 1960s, doctors in Germany and Australia publicly criticised the drug Thalidomide and implicated it in birth defects. By the time German paediatrician Widukind Lenz produced the proof of thalidomide’s actions in 1961, at least 10,000 children had been born with birth defects. Imagine if he, and all other scientists since, were unable to make their criticisms of drugs known for fear of legal action. It is all to easy to imagine, in an equivalent case in contemporary Britain, a manufacturer seeking to use the force of confidentiality or defamation law to suppress publication of such an opinion.

If we put a stop to criticism, we not only put an end to our ability to know which of our current treatments are effective and safe, but we also make it impossible to evaluate properly the treatments of the future.

I urge you to do all you can to help reform our uniquely repressive English libel system. The Liberal Democrats have a proud tradition of campaigning for freedom of speech, and your parliamantary colleague Dr Evan Harris has spoken out with distinction in support of Simon Singh in his legal struggle with the chiropractors. Please support him in his work.

The Trafigura case, by focussing parliament’s attention on the perils of English Libel Law, offers a chance to create a consensus to push through reform of the Libel Laws. This chance must not be missed. There are many ways the laws could be improved; to name but a few, it is high time we had restrictions on the costs of libel actions; a clear and unambiguous statutory public interest defence; and proper limits on the power of multi-billion pound corporations to sue individuals.

I hope you will do everything you can to get the laws – which have also, incidentally, made the UK an international laughing stock – changed.

Yours sincerely,

Dr Aust

————————————————————————————————————

Oh dear – verbose as usual.

I’m sure you, dear reader, can do it in less words.

But, in the overused phrase:

“Just do it”

Chances to create a parliamentary consensus for reform, building on a public campaign on something apolitical but of vital importance, do not come all that often.

Lets do our bit to push  our elected representatives in the right direction.

————————————————————————————————————
UPDATE WEDS 21st am:

You can watch the debate live from 2.30 pm – link is here.

Jack of Kent has promised to blog it – not sure if he means “as it happens”.

POST-DEBATE UPDATE – WEDS 21st    5.00 pm:

For anyone who would like a good summary of what was said, the Guardian has a useful “live blog” here (hat-tip to Zeno for tweeting it).

It was gratifying to hear MPs so genuinely offended at restrictions on “the public’s right to know” – though they were mostly talking about “the public’s right to know what goes on in parliament, a subject one would expect to be close to their hearts. The wider issue of inappropriate use of libel laws got less play – partly because in the Trafigura case it was apparently “commercial confidentiality”  rather than reputation / defamation that was the basis of the gagging injunction – though Evan Harris did mention the wider discontent about the mis-use of defamation law in his speech at the start of the debate (the speech is well worth listening to – the link has a “replay” option.

More than one MP referred to the widely quoted remarks of the Lord Chief Justice about the way that English libel law is being misused:

“We need to look closely at why [London] is called the libel capital of the world and if it is, we have to try to persuade parliament to change the law.”

It is rather piquant that the two judges whose words and rulings have, in the last week, offered some hints that there may be recognition that the English Defamation Laws are not working, are Lord Chief Justice Judge and Lord Justice (of Appeal) Laws. Laws and Judge, indeed.

Let us hope that if we can finally get some sensible defamation LAWS, there will perhaps be less tendency in future for discussion of matters of public interest to end up in front of a JUDGE.

BCA v Singh – (unexploded?) literary devices

October 14, 2009

Jack of Kent has now posted his much-awaited report, giving more details of the various parts of Lord Justice Laws’ comments in today’s excellent development in the BCA v Singh case.

One of the points Jack makes is that at the brief hearing this morning Lord Justice Laws mentioned the paragraph of Simon Singh’s original article which directly followed the paragraph that ended with the much-debated (and allegedly libellous) sentence.

This following paragraph reads:

“I can confidently label these assertions [that chiropractic could successfully treat ailments other than musculoskeletal ones] as utter nonsense because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.”

(italics and underline mine)

This paragraph has been much discussed by those on Singh’s side of the argument, since it can logically be read as clarifying why Singh regarded the claims made by the BCA as “wholly without foundation” – the sense in which he has always stated he meant the much-debated word “bogus”.

Thus:

- Edzard Ernst, the expert, read the papers critically;

- he found that they did not stand up  – a view bourne out by the analysis of the BCA’s “plethora”, links to which can be found in this summary by Petra Boynton, and by commentary in places like the British Medical Journal;

- so therefore Ernst and Singh regard the claims that chiropractic can treat such things as “utter nonsense”.

—————————————————————————————————-

In the case of Singh’s Guardian article, the inference (“bogus treatments”) is put up front as a rhetorical device, that is, at the end of the previous paragraph (the words complained of).  It is also repeated for emphasis at the start of the subsequent explanatory paragraph (“…utter nonsense…”). However, the common origin of the debated statements (and thus, by implication, the meaning that a reader would likely take from them in this context) is obvious, I would argue, from reading the two paragraphs together.

A major effect of Eady’s ruling on meaning was to throw out – or at least, to make redundant – this kind of argument where the two paragraphs should be read together. “Happily promotes… bogus”, Eady told us, meant Singh was plainly accusing the BCA of deliberate deception. No other meaning could possibly be borne by the phrase, and thus clarifying meaning from the overall context (the rest of the article) was irrevelant.

This part of the Eady ruling, it now seems, has likely been overturned (though we will need the full judgement to be sure).

Strangely, one part of me is actually little sad - for the following rather whimsical reason.

I opined in one of my earlier posts on BCA v Singh that Simon Singh’s mistake was arguably to have put the sentence “happily promote…. bogusahead of the explanation. In journalism it is usual to give the things one thinks one knows first – for instance, Ernst examined all the trials, and they didn’t stand up scientifically. Then one moves on to inference: therefore these claims are nonsense, and therefore in turn it is extraordinary that the BCA was promoting them on its website. Arguably, had the offending sentence come at the end of the paragraph just quoted, the meaning of the phrases would have been even more obviously derived from the explanation. I would love to know whether the BCA would still have sued.

Of course, written that way round it would not have been as good a read.

Anyway, there would be something surreally and tragicomically ridiculous about a writer getting sued for putting his sentences the dangerous way round because it made for a better read. One would need Evelyn Waugh, perhaps, to do such an idea justice.

In my mind’s eye-vision of such a scene, Simon Singh stands in the dock before a bench of stony-faced red and black-robed justices. One of them intones:

“Simon Singh, you stand before us accused of the heinous Crime of the Reckless and Dangerous Use of Rhetorical Devices. How do you plead?”

Indeed, what would one plead?

Guilty?

Not guilty?

Literary?

Now, for some reason, this image in turn puts me in mind of a favourite cartoon of mine, drawn by the wonderful John Callahan.

A caveman and his wife are sitting in their living room (cave?) watching TV. The pre-programme admonition about what might be coming appears.

“Warning: The following program contains LANGUAGE.”

Dangerous things, words. Dangerous things.

———————————————————————————-

PS  Notwithstanding the above, in one place, at least, related to BCA v Singh, words are in short supply.
Can you guess where?
PS  Notwithstanding the above, in one place at least related to BCA v Singh, words are in short supply. Can you guess where?

Stop Press – Simon Singh granted leave to appeal

October 14, 2009

Hurrah!

According to Jack of Kent’s twitter feed (which you can update periodically like any webpage to get new “tweets”), Simon Singh’s petition for permission to appeal Sir David Eady’s ruling on meaning has been granted in an extremely brief hearing at the High Court this morning.

It is rumoured that the ruling (i.e. the new ruling that the view Eady had taken was sufficiently flawed that Singh would have reasonable grounds to appeal it) is, er, critical of the Learned Justice.

And still more startling – Singh is not just allowed to appeal the narrow point on whether the now (in)famous word “bogus” necessarily implies “something they definitely knew was untrue”.

To quote JoK’s twitter feed:

“And it will be [a] FULL appeal, [with] Simon allowed to re-argue it [i.e. the disputed phrases of the original article] was Fair Comment”

(for Dr Aust’s amateur legal take on fair comment defence see here)

Jack’s feed also suggests the British Chiropractic Association didn’t even turn up (though I don’t know if this means they didn’t turn up, or their lawyers didn’t).

I suspect the latter, actually. This rather makes me wonder if the BCA have decided to ditch the lawsuit – though I suppose they could have simply been so sure Singh was going to lose that they didn’t think it worth paying the extra lawyers’ fees for the appearance.

Anyway, wonderful news for those who have been following the case.

And more, doubtless, across the Interwebs in the next few hours.

————————————–

Quick lunch hour update @ 1.45 pm:

There is a bit more info in an article over at Index on Censorship:

In a scathing rebuttal of Mr Justice Eady’s previous judgement in the case, Lord Justice Laws said Eady had risked swinging the balance of rights too far in favour of the right to reputation and against the right to free expression. Mr Justice Laws described Eady’s judgement, centred on Singh’s use of the word “bogus” in an article published by the Guardian newspaper, as “legally erroneous”.

Laws also pointed out that Eady’s judgement had conflated two issues — the meaning of the phrases complained of, and the issue of whether the article was presented as fact or fair comment.

Laws said there was “no question” of the “good faith” of Singh in writing the article, as the matter was “clearly in the public interest”.

- “legally erroneous” – ouch.

If one can extrapolate from the legal shows – mostly American, so their relevance is arguable – then one tends to think that being a judge whose high-profile judgements get appealed, and perhaps reversed (and criticised in blunt terms) by higher courts, is not a reputation judges like to have.

Of course, some might see it as an inevitable consequence of working at the “cutting edge” of the law – “pushing the envelope”, as it were.

However, being allowed to re-argue the defence of “fair comment” is clearly excellent news for Singh, as this means all the work previously done by his defence team will be relevant in a full appeal hearing.

As, presumably, will be the work by the bloggers and commentators de-constructing the BCA’s “plethora” of evidence.

Index on Censorship also clarify the bit about the BCA not being there:

“The BCA was not represented at this morning’s hearing.”

Which means “their lawyers were not present”.

I shall be interested to see what Jack of Kent has to say about that last fact, and whether he thinks it has any implications for how, and indeed whether, the case will continue.

EDIT: Ah – a prosaic explanation. According to Tessa, who attended the Court representing the National Secular Society and has blogged about it over at The Lay Scientist, the BCA and its lawyers were informed about the decision in advance. So that’s it for that bit of tea-leaf reading.

————————————————

Update 2 – More at 4:

Jack also tells us via a tweet that Lord Justice Laws – as Jack says, rather a splendid name for a judge – held that Sir David Eady’s ruling  (or at least some part thereof) was contrary to Article 10 of the European Convention on Human Rights.

This is, of course, the article that guarantees freedom of expression:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

And Update 2a: wholly amateur legal musing:

I find this last point about Article 10 particularly interesting. If we look, Article 10 part 2 says:

“The exercise of these freedoms [i.e. freedom of speech], since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, …for the protection of the reputation or rights of others”…

- i.e. it is clear that Article 10 accepts that there have to be some limits to what you can say about somebody, and that laws are how those limits are made enforceable.

What I am curious about is how Sir David Eady’s ruling has now been held to be contrary to Article 10. I presume the Rt Hon Lord Justice L means that Sir David’s interpretation of the law in his ruling in BCA v Singh is incorrect, and that, if interpreted in this incorrect way, the law would run contrary to Article 10.

The alternative, which seems less likely, would be that English defamation law as we now have it, and as shaped by judicial ruling and precedent, is contrary to Article 10.

Err… he surely can’t be saying that… can he?

———————————————————–

PS A discussion of the possible implications for Simon Singh is already under way over at the Bad Science Forums – UPDATE: It now seems to have migrated to its own thread here.

And the Nature “Great Beyond” blog has also briefly covered the story.

As has the New Statesman.

And now the Times, in an article penned by one of the most reliably rational of the newspaper science writers, Anjana Ahuja.

Cretaceous mud slinging

August 5, 2009

In which we ponder whether extinct prehistoric reptiles can sue for libel in the English courts. After all, everybody else can.

Via Frank the Science Punk’s mini-blog, I have just read this shocking story about the well-known dinosaur Tyrannosaurus Rex:

T rex offended

T. rex “mostly ate babies”

(see also the original story in the Independent by noted science journalist Steve “lofty medics” Connor)

Frank suggests that T. rex is clearly in urgent need of a PR agency.

I have a slightly different suggestion.

Since the allegation that T. rex ate babies is clearly injurious to the dinosaur’s reputation, T. rex should engage a good reputation management law firm – a couple of options are  here and here, the latter lot being Matthias Rath’s libel lawyers of choice, though there are plenty of other options too – and file a libel suit in the English courts with all haste.

With any luck, the case will be heard by an eminent legal mind, and this shameful slander upon the reputation of one of our best loved prehistoric carnivores can be shown for the premeditated attempt at (Cretaceous) mud-slinging that it is.

A spokesman for the popular dinosaur and family favourite assured Dr Aust that “sales of T. rex soft toys and other branded merchandise have not been damaged” and that “movie tie-ins are not in danger”, but also said that the dinosaur was “looking into” the question of defending its reputation, if necessary through legal action. Reading a prepared statement, the spokesman added:

“With rights come responsibility and scientists must realise that they cannot simply publish with impunity what they know to be untrue and libellous”

T. rex itself was unavailable for comment.

——————————————————————————————————————-

PS  The paper from which the Independent story derives is in a paleontology journal called Lethaia. The abstract of the paper is here, and here is some background on the debate about what T. rex might have eaten.  I shall look forward to seeing  in due course if blogger and Nature “fossils editor” Henry Gee has anything to say about the “T. rex was a babykiller” story.


Follow

Get every new post delivered to your Inbox.

Join 1,991 other followers