Back crack quack attack – it’s a legal matter, baby

Dr Aust finally (late as ever) tries to think of something new to say about the back-crackers vs. Simon Singh, and about British libel laws and Alt.Reality in general.

The Bad Science Blogosphere has been full, these last couple of weeks, of the Back-crackers – sorry, I should say “the chiropractors” – rushing to M’Learned Friends when people say mean things about them. (NB – for non-UK readers, “M’Learned Friends” is a British term for lawyers – usually highly-paid ones).

The first example was the New Zealand Chiropractors Association threatening to sue the New Zealand Medical Journal – who have comprehensively called their bluff by publishing the letter from the Back-crackers’ legal mouthpiece, together with an unrepentant re-statement of their main points of issue with the Back-crackers (see David Colquhoun’s blog for details and for links to the articles). More recently, in the UK, the British Chiropractic Association or BCA (who are one of several chiropractors’ professional associations in the UK, and say they represent “over 50%” of UK chiropractors) has issued legal proceedings for defamation against noted science writer Simon Singh for an article he wrote in the Guardian under the paper’s Comment is Free banner.

Singh’s comments, which can be read in Blogospace here and here, were clearly derived from Trick or treatment?, the book about Alternative Medicine he recently published together with Professor Edzard Ernst. Given all the research that went into the book, and Ernst’s many papers on the subject, Singh should be well equipped with any information he needs to argue for the accuracy of his statements in a courtroom. Gimpy’s excellent post sets out, point by point, some of the scientific references that back up what Singh wrote.

Unfortunately, in UK defamation law, the defence of “justification” – the statements complained of as defamatory were in fact true – has a reputation as rather a risky option. In contrast to most other countries, the burden of proving the truth of what was said rests wholly on the libel defendant. Furthermore, there is no general defence of “public interest”. A rather qualified “public interest” defence has recently become possible in UK libel courts – though constructed by judicial ruling and predecent, and not by legislation – the so-called ”Reynolds_Defence”. However, the press (and “citizen journalists” and internet commentators) enjoy nothing like the protection they have in the US under the Freedom of speech laws and the New York Times v. Sullivan decision.

UK Libel Law – protecting the rich and the con-men?

The Singh lawsuit thus arrives at a time when UK libel law is increasingly something of a pariah. The UK’s anomalously plaintiff-friendly law has been criticized both at home and abroad for producing the depressing phenomenon of “libel tourism”, and was recently characterized by a UN report as. “serv[ing] to discourage critical media reporting on matters of serious public interest”.

Libel tourism arises when someone invents rather thin grounds for sueing in the complainant-friendly UK courts, rather than in the jurisdiction where most people would view any offence as having actually being committed The phenomenon goes back several decades, as discussed here. Two high-profile recent cases (widely discussed in the press e.g. here) have involved books written by American authors, and published in the US, but purchased by a mere handful of UK-based readers (precisely twenty-three in one case) via the Internet. The plaintiffs did not bother suing in the US, where they would have had no chance of a judgment in their favour. Instead , they sued in the UK for the “damage to their reputation”, making the argument that the ability of UK residents to order the book, and the availability of part of the book online, proved that case could reasonably be heard in the UK. This has since led to the passing of legislation in New York State to make it legally impossible to attempt to enforce in their jurisdiction a judgment made by the overseas (UK) court in libel cases. The New York legislators clearly saw the libel tourism as an attempt to make an “end-run” around US constitutionally-guaranteed freedom of speech. Subsequently, bills essentially to replicate the New York guarantee of “no imported libel chill” have been tabled in the US House of Representatives and Senate.

Whether one views the fuss over the recent cases as being wholly concerned with free speech – and the two cases which have made this a “hot button” issue for the US legislators do relate specifically to allegations concerning terrorism – it is clearly of some concern to UK citizens when other democracies start passing laws to strike down our laws as repressive. Many UK press commentators have made this point, including Geoffrey Wheatcroft:

“For years journalists have grumbled about the [English] libel laws and no one has listened, but when a distant legislature passes a law of its own to counteract the intolerable effects of the British courts then it’s time to take notice. The most startling recent legal story comes not from the high court but from Albany, where the New York state legislature has introduced the starkly named Libel Terrorism Prevention Act, intended specifically to guard writers and publishers outside British jurisdiction from the terrors of English libel law.”

Of course, the use of UK libel law by our own rich and powerful to suppress adverse comment is already well known to UK readers – one need only name Jeffrey Archer, Jonathan Aitken, and perhaps most egregiously of all the late Robert Maxwell, famous (infamous?) in life for his frequent recourse to M’Learned Friends.

In the context of English libel law reform, the UN’s comments last week, already noted above, were particularly interesting since the information they had studied had apparently been provided to them by the UK Government, or at least by its civil servants. This might lead one to hope that the issue of libel law reform is under discussion in high places in the UK, though as yet there seems no sniff of new legislation. More on this, and on libel tourism and UK free speech in general, in two recent Guardian articles by Tim Luckhurst and Duncan Campbell

Bad medicine, Alt.Reality and the public interest

Anyway, after that long and probably multiply inaccurate digression, back to Simon Singh and the back-crackers. Singh’s comments about the Chiropractors could serve as an obvious example of “critical media reporting on matters of serious public interest”. Although his easiest defence to the libel action might actually be to argue that the column was to be read as an “Opinion” rather than “authoritative reporting”, as I will explain later.

Unfortunately for us ordinary citizens (bloggers included), law is a minefield of obscure meanings and verbal convolutions, and UK libel law is no exception. However, ”Jack of Kent”, a blogger who is both a skeptic and a media and communications lawyer, has done some nice de-convoluting for us over on his blog. From his On Simon Singh and the chiropractors:

“First, the BCA is able to sue because it is a “legal person”, that is, a company. If it were a public authority, like the statutory General Chiropractic Council [who license all UK chiropractors – Dr Aust] it would not be able to sue under the “Derbyshire Rule” preventing such bodies from suing for defamation. It would be good if the High Court used this case to extend the Derbyshire Rule to such representative bodies: a nice gunshot wound to the BCA’s own foot…”

And in a post specifically on English Libel Law – A Brief Guide for the Perplexed, he explains the process that occurs in a libel action:

”1. The “claimant” (in this case the BCA) will first need to show that they have been defamed. This is a common law test and it usually means that the claimant’s reputation has suffered. A defamatory statement in permanent form is called a “libel” (in transient form, it is a “slander”).”

On this first point alone, it would seem the chiropractors would have little difficulty in demonstrating that Singh’s remarks would tend to make an average person think worse of chiropractic than they did before they read the article. That was pretty much the point.

However, it is not quite that simple: J of K goes on to make a crucial distinction that I had not properly appreciated:

”The claim form [detailing the alleged libelous contents] issued by the BCA has not been published, but one must presume that they are complaining that a direct (or implied) statement about the BCA by Simon Singh has the effect of lowering their reputation (rather than say the reputation of Chiropractic generally).”

This is quite interesting. The BCA can sue Singh because they are a professional association and thus a company / charity, which gives them a right to protect their reputation. However, most of Singh’s article (links above), refers to chiropractic in general, and not to the BCA in particular. The offending remarks they are complaining of must therefore be wholly, or at least primarily, the two sentences in Singh’s article (in the third paragraph) that refer directly to the BCA:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

(italics mine).

The indefatigable Gimpy has traced the probable source of these statement to a document on the BCA’s website. This document is entitled

”Happy families”

and subtitled:

Chiropractic – the natural health choice for the whole family

This document contains the following section (yellow highlighting for the notable bit):

“Birth trauma

Although a natural process, birth is sometimes traumatic for both mother and baby, Chiropractic may help you and your baby recover from any birth trauma. Treatment aims to relieve the stress that can affect your baby’s neck and head, especially if forceps or other medical assistance was involved, or if it was a breech birth.

There is evidence to show that chiropractic care has helped children with the following symptoms:

Asthma …Colic

Prolonged crying …Sleep and feeding problems

Breathing difficulties … Hyperactivity

Bedwetting …Frequent infections, especially in the ears”

The list of conditions is identical to those in Singh’s disappeared article. It would thus seem that the only thing in Singh’s article that can be construed as directly defamatory to the BCA are the two sentences / phrases which imply that the BCA are promoting treatments for which there is no scientific evidence (see above).

The law at work

Jack of Kent also explains, in his post summarizing the workings of English libel law, what happens once the plaintiff has set out precisely how they feel they have been libeled:

“2. Once the claimant has established that the statement is defamatory, the onus [for proving the statement were not libelous] then shifts to the “defendant” (here, Simon Singh). This “reverse burden” of proof means that English libel law is regarded as unfair to defendants and too advantageous to the claimant.

3. There are three common defences: privilege, fair comment, justification. The defence adopted will depend mainly on what the claimant says is the defamatory meaning of the alleged libel.”

Now, as I understand it (based on my new Jenny McCarthy-style ”University of Google” two-hour-degree in British defamation law), all three of these defences would be feasible in an action of this type.

Justification – the statements are true

“Justification” at first sight seems the obvious one, but this is slightly two-edged in the context of British libel law since one might conceivably have to justify the exact choice of wording, and debate its possible meanings..

To explain this, consider the following hypothetical scenario.

Let’s say that a charity called the “Breath Foundation” promotes special breathing exercises as a cure-all for all sorts of childhood ailments. Let’s say I have written an article in which I say that the Foundation and its therapist members promote these therapies “even though there is not a jot of evidence” that they work. And let’s say that they have then sued me for defamation.

Next, let’s imagine that there are ten studies published in the medical literature assessing breathing exercises for one of these conditions in particular, say childhood asthma. Let’s imagine that nine studies, find that the therapy is useless. The tenth study is rather equivocal, and technically of poor quality, but finds some weak evidence of benefit.

The question is, can I summarize this as there being “not a jot of evidence” [that breathing exercises help childhood asthma]? I could, have written something less blunt: for, instance, instead of “even though there is not a jot of evidence.”, I could have put “even though the scientific evidence overwhelmingly contradicts this claim”. Do these phrases carry the same meaning? Using a “justification” defence when the Breath Foundation sues me effectively argues that they do. The argument could certainly be made – nine studies to one would probably equate in a systematic review or meta-analysis to “essentially no evidence”, but it could perhaps be argued the other way by a plaintiff’s libel lawyer. If we analogize this to Simon Singh and the BCA, the BCA’s lawyer might be going to argue that Singh overstated the evidence to make his words carry the implication that the BCA were lying.

One can also concoct slightly different versions of this argument, and one in particular is interesting as it carries a wider implication for CAM therapies and their advocates, and the way they promote and justify what they do.

In this modified scenario, suppose that the scientific and medical literature all points one way – to the therapies being without effect – but the CAM professional association’s members’ testimonials – “what my patients have told me” – are all positive (as it is quite possible they would be – the satisfied customers write the nice letters, while the dissatisfied ones commonly don’t come back).

The CAM professional association might then argue, including through their lawyers, that this constitutes the “evidence” on which they, in good faith, base their claims about their therapy. As I understand the law – and I’m hoping Jack of Kent, or some other legal eagle, will be by to correct me if I have it wrong – it then falls to the debunker – e.g. Singh and his lawyers in the BCA vs. Singh suit – to convince the court that this does not constitute “evidence” in a way that a normal reader reading the BCA’s website, or Singh’s article, would understand it. Again, possible, but not altogether straightforward.

Finally, in the light of the above arguments, consider in my hypothetical example what would happen if I had also written that the Breath Foundation “happily promotes bogus treatments”. Again, how easy is it to demonstrate that this precise wording is true, as a judge would understand it? Could my hypothetical Breath Foundation argue that the treatment is not “bogus” if they sincerely believe in it, even if the scientific and medical consensus is wholly against it? This question, in turn, might hinge on whether the Breath Foundation’s own documents imply that the treatments are backed by scientific evidence.

As I have already noted, what, exactly, do we take the statement “There is evidence” in any Alternative Therapy organizations promotional or information leaflet to imply? What kind of evidence? Scientific? One positive study? A broad consensus? A meta-analysis? Patient testimonials?

[In fact, one possible outcome of a case like the BCA vs. Simon Singh is that we will get a precedent in this regard. Personally, I would have said that, if the claim is made for a ”medical therapy”, then the word “evidence” should be taken to mean “evidence of the type and standard routinely applied to conventional medical therapies”]

Now, while lawyers and especially judges are very smart people, and well-equipped to see through a load of flim-flam or a “legal filibuster” (see e.g. Mr Justice Eady’s interim ruling in Andrew “MMR” Wakefield’s ultimately abandoned delaying libel action against journalist Brian Deer), it is easy to see how an argument of this kind could be a long and involved argument. And also how, in certain cases, it might give quacks a way to defend their purported “reputation” without having to engage too closely with the real scientific truth.

Fair Comment

Given all the above arguments, a “fair comment” defence is likely to be Singh’s safest bet in law. As one legal website puts it:

“The defence of “fair comment” may be available to a defendant who can show that the defamatory statement amounted to an opinion which was honestly held and based on facts which were true.”

Here, what Singh has written could clearly be regarded as his (and Edzard Ernst’s) honestly held opinion, based on (i) the claims made in the BCA document, and (ii) Singh’s and Ernst’s knowledge of the actual published medical evidence that relates to these particular claims. This “opinion based on the facts, which are these”, would seem to me to be the clearest and most straightforward defence. – though (disclaimer) I am not a lawyer.

Of course, it could be argued that defending the action this way does not have quite the “moral force” of defending it based on saying “every statement I made was demonstrably true”. But it could be rather less work.

Qualified privilege

The final defence would be one of “qualified privilege”. The specific kind of qualified privilege can be described as follows (taken from www.website-law.co.uk):

“The third (and most interesting) kind [of qualified privilege defence] is sometimes called “Reynolds-style qualified privilege”. This protects certain public interest stories published in the media, providing they adhere to the standards of responsible journalism”

Now, the public interest in the BCA vs. Singh lawsuit is absolutely clear. As Jack of Kent pithily puts it:

“The extent of the efficacy of Chiropractic is an important area for a public debate about public health. And such a debate should not be subject to the veto of vested commercial interests.”

However, the slight snag is what “responsible journalism” is taken to mean in the Reynolds context. As I read it (and again, corrections from those better-informed are welcome), it usually covers a series of standard checklist things, including “contacting the person likely to be offended (here the BCA) before the story goes out and offering them a right of response” – think of all those articles you have read, watched or listened to that say “we tried to contact XYZ to comment on what we have said about them, but no-one was available to speak to us”.

Partly for libel lawsuit avoidance reasons, newspapers tend to badge “Comment” pieces very clearly and deliberately as “Comment” or “Opinion”. This differentiates opinion pieces (including columns) from articles on the news pages (where wording is more neutral, editorializing is curtailed, quotes are sourced to those making them, and responses are sought – think Woodward and Bernstein). This makes it less likely that the newspaper will be sued for defamation for anything published in a “Comment” article – it is being, in effect, pre-emptively labeled as “sincerely held opinion based on the facts”, with the prospect of a fair comment defence to any defamation claim. Since Singh’s piece was published under the Comment is Free banner, it is clearly labeled as “Opinion”.

Behind the scenes…?

On balance, then, I would imagine in my legally uninformed way that Singh’s simplest defence to the BCA’s claims is going to be “Fair Comment”, rather than (Reynolds) privilege or the more balls-out justification. Indeed, one would have thought “fair comment” was so obvious and sufficient a defence that there was little point in the BCA bringing the action at all.

The original news story quotes a member of the BCA governing council as saying: “It wasn’t a decision taken lightly [to sue Singh]…I know that a lot of thought went into this.”

I can’t help being curious as to what these thoughts were.

I suppose it could be that the BCA are taking the action specifically in the hope that Singh will file a “fair comment defence”, the idea being that they can then issue a ringing public statement arguing that Singh has admitted his comments about the BCA are “opinions rather than facts, by his own admission”. Of course, that would not dispute the facts on which the opinions are based.

In addition, or alternatively, it could be that the point was simply to get Singh’s article removed from the Guardian website in the meantime. In which case, the BCA have probably shot themselves in the foot spectacularly, as the ”Spartacus effect”, a.k.a. the “Streisand effect” (or even ”Obi Wan Effect”) will mean that the Singh article is likely to be intensively discussed in the Blogosphere, not to mention being rapidly republished on tens or even hundreds of online sites –think The Quackometer vs. The Society of Homeopaths, or The Quackometer and gutless webhosts Netcetera.

Defending Alt Therapies: Evidence and publications? Or law courts and M’learned Friends?

The wider point for skeptical people interested in CAM Therapies and how they are promoted is precisely what the BCA have not done.

They have not produced any kind of statement explaining why they think what Singh wrote is inaccurate.

Not in a newspaper – although I cannot believe there would not have been many happy to print a statement. Not in a press release. Not in any broadcast I have heard. And not even in the ”Latest News” Section on their own website.

Instead, they have gone straight for M’Learned Friends and the gagging effect of a Libel Writ. Precisely the same can be said of the New Zealand Chiropractors Association.

The response of the New Zealand Medical Journal’s editor, Prof Frank Frizelle, to the NZCA’s legal threats, has received wide publicity around the bad science blogosphere. As noted at the start of this article, he has challenged the NZCA, publicly, to make their argument based on published science. He has even offered them a forum.

The phrase he used, which Holfordwatch have dubbed “an instant classic” is:

“Let’s see your evidence. Not your legal muscle”.

The law is… an ass?

Lastly, back to the law. Regardless of the view we take of the BCA’s (and NZCA’s) actions as an appropriate way (or not) to respond to criticism, and whatever the easiest defence under current English law of the BCA’s idiotic action, it is hard not to feel that the defamation law as it stands is an ass.

There has been much discussion in the UK over the last few years of ways in which libel laws might be modified to place less burden on those defending defamation cases. One suggestion that has been repeatedly advanced is to modify the law so that “public figures” – under which heading one might reasonably class a large and wealthy professional association – would have to demonstrate specifically that the allegations had been made recklessly, and/or maliciously. This idea follows the US model. Another related idea is to give media comments on public interest matters special privilege.

As currently stands, it seems crystal clear that the public interest is emphatically not served by the chiropractors being able to block people from going public criticizing them To quote Jack of Kent once again:

“The article was by Britain’s leading science writer, in the comment section of a quality newspaper, discussing concerns about an important aspect of public health, that is, the treatment of sick children. If Article 10 of the European Convention on Human Rights, which protects freedom of expression, does not apply here, then we may as well not have a Human Rights Act.”

Basically, the need for some sensible new legislation is clear. Unfortunately, it seems that British Governments are historically reluctant to do anything legislative that curtails libel lawyers’ ability to trouser huge fees. Those of truly cynical mind might wonder whether this is because so many British politicians are lawyers.

Which prompts a final thought:

Perhaps this is a chance for the highly erudite and forensically intelligent ex-journalist* (with history Ph.D. from Edinburgh) who occupies No. 10 Downing Street to show us what he is made of.

After all, it seems a perfect chance; a big issue to take the focus off economic gloom; something that goes beyond petty self-interest; free speech, open debate, and a public right of fair criticism; the rich and powerful de-fanged in their attempts to control what can be said about them.

What could be more stirring than that?

Over to you, Gordon.

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*Thanks to Jack of Kent for pointing out my mistake in originally suggesting that our Prime Minister trained as a lawyer (see comments).

[BPSDB]

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