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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Thursday, May 21, 2009

BCA v. Singh: Worrying libel ruling in British case

In the defamation case brought by the British Chiropractic Association (BCA) against science writer Simon Singh, the supposedly defamatory words are contained in this passage:

"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."

The passage goes on:

"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"

On 7 May 2009, the English High Court made a ruling that this was not comment but a factual claim, and that the phrase "happily promotes bogus treatments" imputed deliberate, conscious dishonesty to the BCA.

One might have thought that the relevant paragraph would be looked upon as a fair comment on a matter of public interest and that the case would ultimately be dismissed unceremoniously. Whether or not the treatments are "bogus" is surely a controversial matter, but one for which there is considerable scientific support. At the very least, it is a matter on which a writer should be able to express an honest and reasonable opinion. The context shows that Singh elaborated the meaning of "bogus" to be something like "ineffective" or "unevidenced by scientific investigation". Well, that's probably true, and it's certainly a matter on which opinions should be expressed publicly.

Does the BCA promote these treatments "happily"? Well, assuming that they do promote them (which is not, as far as I know, denied by anyone), is there any evidence that they promote them reluctantly or with misgivings? If anything is being asserted as a fact here, it is that the BCA freely and without reluctance promotes treatments that are, in the honest and reasonable opinion of the journalist, ineffective for the purpose and/or lacking scientific support. The BCA shouldn't even have a case.

Instead, Singh is screwed. It is doubtful that even he believes that the BCA is engaging in conscious, deliberate dishonesty. More likely, he believes that its officers and membership are self-deceived, and that they are, accordingly, engaging without reluctance in the dangerous practice of promoting ineffective treatments to the public. However, it's unlikely that he would win an appeal on a point such as this. Nor would he have much chance of defending the truth of the meaning that has been imputed to his words.

Here is a good example of defamation law being used to suppress valuable speech. Although it's a British case, and the courts in the UK are notorious for favouring plaintiffs in defamation cases, a similar ruling is possible in other jurisidictions (except, no doubt, in the US, where freedom of speech is taken seriously). Of course, Singh could have worded every phrase with utmost care so that no possible defamatory interpretation could be placed on it. That would produce very leaden prose.

When defamation law functions in this way, it chills speech that is in the public interest. This case shows why defamation law must be kept under control. It should be reserved for clear cases of damage to the reputation of an individual that could lead to that individual being widely pilloried and shunned. It should not relate to legitimate expression of opinion, but to unambiguous allegations of fact that, if widely disseminated, would destroy someone as a social being. "Russell Blackford is a [insert appropriate horrific allegation that would destroy my reputation, such as one of pedophilia, or of criminal convictions for dishonesty or violence, or whatever]" should be considered defamatory, and I should be able to sue anyone who makes such a claim. "Such and such an organisation of alternative therapists is happily promoting bogus therapies," should not be.

Defamation law should be looked upon as a narrow, but still potentially dangerous, exception to the rule of free speech. It is a necessary evil that should be confined as closely as possible without destroying its efficacy in the limited class of circumstances where we really do need it. If it can produce a result like this, in the UK or elsewhere, it needs thorough revision.


Steve Zara said...

I fully agree. The law has to be changed.

But also, I think there is an interesting (and unfortunate) problem here that I have not seen discussed. There are generational and cultural differences in the use of the word "bogus". A younger person, especially in some American cultures, may use "bogus" simply to mean "non-functional" or "useless", which is precisely the meaning that Singh intended, even though the strict English dictionary definition includes the idea of deception. To be honest, when I first heard of this case, I had forgotten the strict definition myself. I can see how Singh could have used the word with no intent to imply deception.

What a mess this is. The law has to back off.

Anonymous said...

When I read Singh's remarks I thought "bogus" an unfortunate term to use- as far as I'm concerned it means consciously false. All the same, it seems a little drastic to impose the penalties Singh has received for suggesting that a bunch of quackslaves are consciously dishonest rather than unconsciously dishonest. Nor can they continue to make these claims now that they know they are false of they are honest fools.

"...Must a man stand by what he writes
As he stands by his camp-bed or his weaponry
Or shell-shocked comrades as they sag and cry?"
the poet Geoffrey Hill asked. It seems Englich courts would answer yes.