Simon says: part 5
The key paragraphs in the decision of Mr Justice Eady in the Singh case are as follows:
- "12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.
- 13. It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.
- 14. I therefore would uphold the claimant's pleaded meanings. It will have become apparent by now that I also classify the defendant's remarks as factual assertions rather than the mere expression of opinion. Miss Rogers reminded me, by reference to Hamilton v Clifford [2004] EWHC 1542 (QB), that one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact. Here the allegations are plainly verifiable and that is the subject of the defence of justification. What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them. That is an issue capable of resolution in the light of the evidence called. In other words, it is a matter of verifiable fact. That is despite the fact that the words complained of appear under a general heading "comment and debate". It is a question of substance rather than labelling.".
The reaction of Mr Singh was succinct and to the point. He told New Scientist, referring to how the judge interpreted the word bogus, "The judge has given us a meaning that is very extreme and that I never intended".
The first problem is that the judge has treated the assertion in the most extreme way imaginable. Mr Singh did not say that the BCA consciously knew that such matters were bogus. His point was that they were happily promoting treatments which he described as bogus because there was no evidence supporting them. It might be thought that the context demonstrated precisely that that was what bogus was intended to mean. However as a result of this ruling now in order to "justify" the alleged libel Mr Singh not only has to prove that there is no evidence to support the treatment, but that the BCA in putting this forward were consciously aware that there was no such evidence and put such treatments forward nonetheless. This will involve him in proving conscious and knowing wrongdoing on behalf of the BCA which would be extraordinarily difficult to prove (and something one would assume he would balk at trying to prove since he would say it was not what he was saying in the first place).
The second difficulty is that treating comments in that context as ones of fact not opinion risks stifling genuine debate. Interpretation of what tests mean and whether they are the right tests is not always an exact science. Different surveys can sometimes be pointed to to show rather different things. Sometimes there can be radically different interpretation of the data even from the same survey. It is obviously in the public interest that commentators feel free to say what they think. The best way to get the scientific truth is for people to feel free to comment as vigorously as possible. Responses as regards what the evidence does and does not show would perhaps be more constructively addressed in evidence and journals and responses rather than in litigation. With due deference to Mr Justice Eady, my personal opinion is that the decision is wrong. Whether it will be appealed, or if it is whether the Court of Appeal will agree that the decision is wrong, is another matter.
We have already seen why the English libel courts have such a wide ranging effect. Moreover save for those jurisdictions which refuse to recognize English libel awards (such as New York) once obtained those damages and costs awards can be enforced in many jurisdictions and the costs of unsuccessfully defending libel proceedings can be substantial. Even if you do not intend an article or a book to be distributed in England, it is going to be difficult for you to prevent that happening. Therefore the impact of English libel law can have a stifling effect on the expression of opinion in the English language worldwide (even other languages if there is a real risk that they may be distributed in England and Wales).
One of the problems emanating from the Human Rights Act has not been the decisions under the act itself but the way that institutions often erroneously interpret what the act is likely to provide. Most of the absurdities pointed to as human rights nonsense are not ones which actually arise from the law itself but from the response of people to the law. However how people respond is always an important factor in considering the effect of the law. An Act of Parliament or a decision can have undesirable consequences which arise from the likely response of people to it even if that is not what the law provides for or wishes. The reality is faced with the threat of libel proceedings, it is much easier to capitulate and withdraw the article and apologise rather fight out the point. Decisions such as this one are likely to encourage libel actions to be used as a means to stifle scientific debate, and are likely to make those with something to say ever more reluctant to risk either saying it in the first place, or persisting in it if there is a threat of a libel action. In practice therefore that will both diminish open and free scientific debate and consequently the interests of the public at large. That is why there has been such a groundswell of protest regarding the position of Mr Singh.