Archive for October 14th, 2009

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”.

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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.

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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?
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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.

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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.

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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?

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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.