In the Dark

This is an issue that I’ve been meaning to comment about for some time, but hadn’t done so because I really didn’t have a clear view on what opinion to express! I’ve now decided to chip in precisely for that reason, i.e. because I don’t think the matter is as clear as others appear to think.

The story will be familiar to many readers of the blog, so I’ll only give a quick recap of the salient points. Simon Singh is a popular science writer – a very good one, in fact – who recently  co-authored a book on alternative medicine called Trick or Treatment? with Professor Edzard Ernst of Exeter University. In that book they produced evidence showing that many “alternative” medical therapies including homeopathy, acupuncture and chiropractice  were, in fact, useless for the control of many conditions for which they are prescribed by the relevant specialists. Subsequent to the publication of this book, Singh wrote a piece in the Comment pages of the Guardian newspaper in which he specifically criticised the British Chiropractic Association (BCA) for claiming that its members could use spinal manipulation to treat children with colic, ear infections, asthma, sleeping and feeding conditions, and prolonged crying. Singh described these treatments as “bogus” and criticised the  BCA for “happily promoting” them.

The BCA decided to sue Simon Singh for libel. The Guardian removed the article from its web pages and encouraged Singh to settle out of court, offering to pay his legal expenses if he agreed to do so. He refused and decided to defend the libel action in court. At a preliminary hearing in May, the Judge, Mr Justice Eady,  ruled that the wording used by Singh implied that the BCA was being consciously dishonest. Singh has denied that he intended any such meaning.

This ruling – which is currently under appeal – effectively means that Singh has to prove that the BCA are consciously dishonest in order to win the libel case. That looks like a very tall order. He also has to pay the costs of the preliminary hearing, which amount to £23,000. If the matter goes to a full trial then he will be out of pocket to a much greater extent than this: a conservative estimate is that his legal costs alone will exceed £100,000, and there will be damages to pay on top of that.

This has become something of a cause célèbre owing, it is alleged, to the intrusion of the courts into matters of scientific debate. The organization Sense About Science has organized a petition (“to keep libel laws out of science”) which has attracted over 10,000 signatures. The issue that signatories are worried about is that the open cut-and-thrust of rational scientific debate will be stifled if a precedent is set that involves one party taking another to court. As they put it

Freedom to criticise and question in strong terms and without malice is the cornerstone of scientific argument and debate, whether in peer-reviewed journals, on websites or in newspapers, which have a right of reply for complainants. However, the libel laws and cases such as BCA v Singh have a chilling effect, which deters scientists, journalists and science writers from engaging in important disputes about the evidential base supporting products and practices. The libel laws discourage argument and debate and merely encourage the use of the courts to silence critics.

The case has also revived calls to reform Britain’s  laws on defamation, which make the defence of a libel action in the UK very difficult from a legal perspective compared to other jurisdictions because, roughly speaking, they place the burden of proof on the defendant not the plaintiff. It is also so expensive to pursue such an action through the courts that the system clearly favours the rich and powerful versus ordinary citizens.

The ruling by Sir David Eady has been singled out for disapproval in the print media and across the blogosphere as an example of how  British law stifles free speech.

So why am I unclear about this? Shouldn’t we keep libel laws out of science? Doesn’t the British law of libel need changing?

Of course I say “yes” to both of those. But it seems to me that the Simon Singh case isn’t really about those questions.

For a start, there is no way that you can regard a Comment article in a national newspaper as the proper place for scientific debate between qualified specialists. Such arguments can and do take place at scientific conferences, seminars and through the pages of learned journals. Simon Singh was not participating in this process when he wrote his article. He was doing something quite different: publicising his book.

Secondly, it is true that Simon Singh is a qualified scientist. He has a PhD in particle physics, in fact. But that does not in itself qualify him as competent to pronounce on issues relating to medical practice. I wouldn’t want to stop anyone stating their opinion about things that they’re interested in. It’s just that he doesn’t get a special ticket because he happened to get a science PhD. My point is that his article was not part of the cut-and-thrust of informed scientific debate between experts, merely an individual commenting on something. The fact that he’s a scientist should not give him a blanket exemption from having to obey the laws that apply to others, especially when he is talking about things outside his speciality. It’s also worth stating here that if what he’d said had clearly just been an opinion it would not have been subject to a libel case. The problem is that it appears to be a statement of fact from an authority on the matter.

Third, note that the original book – which is a proper scientific work in which arguments are presented with accompanying evidence – is not the subject of the libel action, just the newspaper article. The BCA is not using the libel laws to suppress or contest scientific evidence.

Now we come to the crux. Does Mr Justice Eady’s ruling really “defy logic” as many commentators have alleged? What does the word “bogus” actually mean? It seems sensible to turn to an authoritative source, the Oxford English Dictionary. Doing so, I find that the word “bogus” is actually of American origin. The first usage found in the OED is from 1827 where it appears as a noun, meaning “an apparatus used for making counterfeit coins”. Later on it is found as an adjective, with current meanings

Counterfeit, spurious, fictitious, sham: ‘originally applied to counterfeit coin’ (Webster).

It seems to me that since the preliminary hearing was specifically intended to give a ruling on the meaning of the words that had been used in the allegedly libellous document, Mr Justic Eady actually had no choice at all in deciding that the word meant what it did. Clearly “counterfeit” implies a deliberate misrepresentation. Effectively the ruling means that Singh’s words mean that the BCA are no better than Snake Oil salesmen, a defamatory statement if ever I heard one.

Singh has claimed that this was not what he meant by “bogus” and what he intended was something more like “unproved” but I don’t see how it can be an acceptable defence to claim that one’s words mean what you think and not what everyone else thinks. It didn’t work for Humpty Dumpty and it won’t work for Simon Singh. If I write that “Jones the Dentist is incompetent” then that will be libelous (if untrue) even if I later claim I thought that the word incompetent meant something different to what it everyone else thinks.

Truth is of course an acceptable defence against libel, but the “truth” at issue has now become not whether chiropractice is effective or ineffective (a scientific issue) but whether chiropractioners are consciously fraudulent. I’d be wholeheartedly against trying to settle the first question in the courts, but nobody is trying to suggest that. The second question seems to me one that has to be settled that way.

Now let me say that I don’t know anything at all about chiropractice. I don’t know whether it works or doesn’t work, but it does seem to me that Simon Singh was very unwise to use the word “bogus” and even unwiser still to defend the action after he did.

For me, the only really significant issue in this saga is a general one: the overall matter of freedom of speech. In general, I believe strongly in freedom of speech but because we don’t have a written constitution the right to it is not stated as clearly here in the United Kingdom as it is, for example, in the United States. However, don’t forget that there are defamation laws (including libel) in America too. Among those statements considered defamatory per se under US law are statements “injurious to another in their trade, business, or profession”, which certainly would cover chiropractors. The US system is much less plaintiff-friendly than ours, in that it provides for a wider range of potential defences, and it also largely reverses the burden of proof unless there is an affirmative defence. It does not seem obvious to me, though, that Singh would have any more success in defending his case in America rather than here. But, then, I’m not a lawyer.

Even in countries like the United States where Freedom of Speech is enshrined as a constitutional right, it is necessary that it should tempered by wider considerations. It should not be legal for someone to damage another person’s reputation and livelihood by making intentionally false and defamatory assertions. Neither should it be possible to abuse and/or threaten another in such a way as to cause harassment or intimidation. There have to be laws covering such things. The real question is how to make them work in a more impartial way than they do now. To argue that one should be exempted simply by declaring oneself to be a scientist seems to me to be dangerously simplistic. The best way to keep the libel laws out of science is to for scientists not to make potentially libelous statements if they don’t possess the evidence to back them up.

I realise that many of you may think that, in not fully supporting Simon Singh, I am being overtly pro-BCA. I certainly don’t intend to be so. I think there’s blame on both sides. I think that the BCA was unnecessarily aggressive in suing him for libel. Given that they did so, though, Singh seems to me to have made an error of judgement in continuing an action he is very unlikely to win. If he continues with the case now his only hope is that he can produce enough evidence in court that damages the BCA that they drop the action. In the long run, what will probably happen is that he loses the case and the BCA wins damages, but suffers a big dent in its reputation for rather heavy-handed tactics. Along the way it might even happen that there is intense scientific evaluation of the effectiveness of chiropractics, and that might do the BCA more harm than good. Bear in mind that anything said in court under oath is privileged can’t be subject to libel actions…