Elsewhere, I’ve pointed out that good lawyers are perfectly capable of ‘doing’ science, or history, or [insert non-legal academic discipline here]. That we can do it, however, doesn’t mean we ought to do it (see what I did there?). That this may be the developing common sense of the profession is evidenced in part by yesterday’s ruling in the British Chiropractic Association v Simon Singh  EWCA Civ 350 (01 April 2010) libel case in the Court of Appeal, heard before Sedley and Judge LLJ and Neuberger MR. In brief, Simon Singh is able to use the defence of fair comment should the matter proceed to full trial. He does not have to prove that his assertions (originally made in the Guardian) are true.
For those who haven’t been following the Singh case, it’s probably fair to say that it was the Gunfight at the OK Corral between science journalism and alternative medicine, dragging in prominent skeptics and scholars in support of Simon Singh and allowing Eady J to show just how much he dislikes the ladies and gentlemen of the press. It also represents the high water mark of the chilling effects English defamation law can have on freedom of speech.
On April 19, 2008, the Guardian ran a piece by science journalist Simon Singh that included the following:
You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. 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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.
I can confidently label these treatments as bogus 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.
The piece was published in a section of the newspaper headed ‘comment and debate’ (something important to bear in mind) and was clearly designed to provoke lively discussion. Initially, the response of the British Chiropractic Association was to complain to the newspaper. A few vital facts fell out of this response. The Guardian offered the BCA an opportunity to write an article responding to the criticisms that would be published in the newspaper in a position of equal prominence. This — in Australian defamation law, which Legal Eagle and I have already outlined in detail here — is the appropriate response in these circumstances. Media organisations that make strong claims about private individuals or corporate bodies should offer them an opportunity for fair reply. This is recognised (in Australia at least) by the Media Entertainment and Arts Alliance (formerly the Australian Journalists’ Association) code of ethics, the first article of which states:
Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply. (emphasis added).
At trial in an Australian court, that the Guardian did this — quickly, cleanly and without rancour — would weigh heavily on any litigation. It also shows that strong defamation laws can be productive of a culture of civilised debate. Media organisations that traduce people are forced to allow the victims to come to their own defence. This is surely a good thing and should not simply be cast aside in analyses of defamation law that paint it always and everywhere as an enemy of free speech.
However, in the Singh case, the BCA proved unwilling to play by the rules and — eventually — this meanness proved its undoing. Relying on the fact that it is an incorporated body, not merely an association of members (who, as individuals, would lack standing), it chose not to accept the Guardian’s offer. Instead, it sued for libel using its corporate personality. And it did not sue the Guardian newspaper. It sued Simon Singh, personally. This is the legal equivalent of biting an opposition player in rugby. One doesn’t. It does not become one. And so on and so forth.
The litigation at first instance
The matter was then heard at first instance before Eady J, the judge probably best known from his ruling in the Mosley case, which introduced European jurisprudence on invasion of privacy into English law. Eady J, I think it is fair to say, does not like journalists. He thinks they are bumptious little upstarts who cause mistrials and contaminate juries. It is important, I think, to state at this point that this view is widespread in the legal profession, although not universal. I am a criminal barrister. I have occasionally felt it myself (especially during one memorable incident early in my career where irresponsible journalism meant two juries had to be discharged and a trial had to be aborted, all at taxpayers’ expense). That said, most lawyers are capable of walking and chewing gum at the same time, at seeing the difference between intelligent commentary like that of Simon Singh and pointless titillation like what was done to Max Mosley. As that linked article in The Lawyer points out, the media are on much stronger ground when they criticise defamation for its chilling effects on freedom of speech than they are when arguing for a right to invade citizens’ privacy with impunity. Eady J, however, remained unmoved by Simon Singh’s particular circumstances. He held that:
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  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.
Eady J, then, held that Singh’s article — despite its location in the newspaper, and despite its combative tone — was making statements of fact, not opinion. And, under English defamation law, if one makes assertions of fact in this way, one must then prove that they are true to the civil standard (‘on the balance of probabilities’). This would have meant — should the matter proceed to full trial — turning a courtroom into a laboratory, and the marshalling of masses of complex — and very expensive — evidence.
Now, courts have done this before. The Dover Intelligent Design case is one such instance, as is the Irving case. When called upon to rule whether something is science, or history, or whatever, good lawyers do a commendable job, something for which we deserve more credit. However, there is a serious argument to be made that this is not the job of the courts, that it is perverting of scholarship and a profligate and wasteful use of resources.
The Court of Appeal resisted having its premises converted into a laboratory by construing Simon Singh’s words as statements of opinion, rather than assertions of fact. It outlined the usual test, which is essentially a pair of nested circles, the first drawn by the judge, the second — within it — drawn by the jury:
What the words in issue in a libel action mean is subject to two controls: a decision, reserved to the judge, as to whether the defamatory meaning alleged by the claimant falls with the range of possible meanings conveyed by the words in their context; and a decision, traditionally reserved to the jury, as to what they actually mean. The former is regarded as a question of law, the latter as one of fact, with the result that the meaning eventually decided upon by the jury is shielded from attack on appeal save where it has crossed the boundary of reasonableness.
However, the parties had agreed in this case (as they can; this also happened in the Irving trial) to have the matter proceed before a judge alone. This means Eady J’s findings (quoted above) were set aside. The upshot may well be that a judge’s findings of fact are open to challenge in a way that a jury’s are not, although that is by the by; the matter before Eady J was not a full trial on the facts, but rather a ruling on two preliminary issues, viz, what defamatory meaning the words bore and whether they constituted assertions of fact or comment.
The Court of Appeal clearly made the judgment call that construing Singh’s words as statements of opinion rather than fact was the easiest and simplest way to avoid a lengthy and messy trial. Their Lordships’ reasoning on point is worth quoting in detail:
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.
Quite apart from anything else, settling scientific controversies is not what courts are there for. Courts are there to settle legal controversies. If one must use lawyers’ forensic intellectual dissection skills, then a Royal Commission is the place, not a trial.
This is not an ideal outcome, because if nothing else it shows that at least one part of English defamation law has outlived its usefulness. Scientists (and by extension science journalists) routinely make assertions of fact in their work. I am satisfied that Eady J was correct when he held that Singh was making factual assertions. Where I part company with Eady J’s reasoning is in the effect of that ruling. In other words, the Court of Appeal has now made the right decision, but has done so on the basis of bad law. This suggests that the law of defamation in this country is in desperate need of reform.
One (tangential point): I am afraid no lawyer will be swayed by earnest philosophical arguments about ‘falsification’; courts treat established scientific findings as facts. They receive what is known in the trade as ‘judicial notice’. That is, they don’t have to be (re) proved so the course of evidence can flow smoothly. That the Court of Appeal has had to engage in some quite serious muddying of the waters on the distinction between fact and opinion is worrying, especially as it does what courts (and lawyers) routinely do and bats the difficult philosophical question away, much as a certain type of Roman intellectual would describe philosophy as ‘the second Greek vice’ (the first, of course, being homosexuality):
One error which in Ms Page’s submission affects Eady J’s decision on meaning is that in §14, quoted above, he treats “verifiable fact” as antithetical to comment, so that any assertion which ranks as the former cannot qualify as the latter. This, it is submitted, is a false dichotomy. It led the judge to postulate the resultant issue as “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”. This, he held, was “a matter of verifiable fact”.
It seems to us that there is force in Ms Page’s critique – not necessarily because fact and comment are not readily divisible (that is a philosophical question which we do not have to decide), but because the subject-matter of Dr Singh’s article was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, is heavily and legitimately contested. The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA’s personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter.
These cavils aside, there are some very good things in this judgment. Their Lordships show that they understand the scientific method, for example, along with the relationship between cause and effect, discussing both with clarity and vigour:
What “evidence” signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient’s condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be.
The judgment also demonstrates a willingness to draw upon American and Commonwealth authority, both on the general development of defamation law and on the specific question of the proper forum for the resolution of scientific controversies. It points out, for example, that Australian defamation law’s use of the phrase ‘honest opinion’ in lieu of English law’s ‘fair comment’ is a truer description of the reality of public debate. The judgment also ends with something that has become increasingly common in English law: a barely disguised appeal to parliament to reform the law and so make it more closely resemble that in various countries of the British Commonwealth.
I hope Parliament hears the appeal and does something about English defamation law. I am seldom a fan of yet more legislation, but this is a mess. When three of the country’s finest lawyers have to engage in such contorted reasoning in order to arrive at the ‘right’ outcome, we have — at least — prima facie evidence that the law is an ass.
UPDATE: Another lawblogger thinks we’re dealing with the right decision, but for the wrong reasons. More here.
UPDATE II: A truly excellent summation/links round-up post on this issue is available over at Cearta.ie.