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Simon Singh revisited part two

There were two aspects to the Singh case which were notable. The first is that, as the court noted, it is mere happenstance that the British Chiropractors Association is incorporated as a company. If it were just a members association as with many trade and professional associations, it would not anyway have had locus to sue for defamation. Moreover the approach taken by the BCA was a curious one, albeit within its legal rights. The Guardian offered an opportunity to put together a piece seeking to refute what Dr Singh had said. The BCA did not wish to take advantage of that opportunity. Nor did it sue the newspaper for libel. (When the newspaper would obviously have had the resources to properly defend any claim). It purely sued Dr Singh. The consequence of that was set out at paragraphs 11 and 12 of the judgment. " It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation. By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. Again, if that is where the current law of defamation takes us, we must apply it."

The court consequently had to decide whether what was stated by Dr Singh included an allegation or allegations of fact which were defamatory of the BCA, or whether by contrast what Dr Singh said about the BCA constituted comment (or, in the alternative value-judgment using the phraseology of the European Court of Human Rights in its cases dealing with Article 10). The court also considered that the judge erred in assuming that fact had to be distinct from comment. Therefore he ended up posing the decision as one question when it should have been two. The first issue was, was there any evidence to support the claims made by BCA, and if there was not, was this something known to the personnel at BCA? The court's view was that if, as Dr Singh had always contended the first of those issues was one of opinion not fact, then the second issue mattered not.

By reference to the pleadings the court was able to show that in fact what was going to end up happening at trial was that the court would end up going through a series of accusations and deciding whether there was credible evidence to support them or not. The court outlined the alarming consequences of this would have at paragraphs 22 and 23 of its judgment. "One has only to contemplate this prospect to conclude that something is amiss. It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. But these have been precisely cases in which the defendant has made a clear assertion of highly damaging fact, and must prove its truth or lose. The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote: "I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; ... that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought." That is a pass to which we ought not to come again."

The court then in relation to the policy position regarding scientific controversy, at paragraph 34 cited the comments of Judge Easterbrook, presently Chief Judge of the US Seventh Circuit Court of Appeals in a libel action: ""[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation... More papers, more discussion, better data, and more satisfactory models ... not larger awards of damages ... mark the path towards superior understanding of the world around us."

The appeal decision is plainly correct, but this first instance decision came perilously close to rendering expressions of opinion about scientific controversy fraught with danger of being suppressed by legal action. Not just in this case has it undoubtedly had an inhibiting effect on comment. Hopefully never again.

Michael J. Booth QC