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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).

Saturday, April 03, 2010

A case note on the Simon Singh appeal

Case: British Chiropractic Association v. Simon Singh

Court: Court of Appeal for England and Wales (2010)

Facts: The British Chiropractic Association (BCA) contended that it had been defamed by Simon Singh, a scientist and science writer, who'd criticised it in an op.ed. piece in The Guardian, including 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 trial judge had been asked to determine, as preliminary issues, (1) what defamatory meaning the words bore and (2) whether they constituted assertions of fact or comment. He held that the words would mean to a reasonable reader:

i) that the BCA claimed that chiropractic was effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knew that there was absolutely no evidence to support its claims, and

ii) that by making those claims the BCA knowingly promoted bogus treatments.

Further, he held that these were assertions of fact, not expressions of opinion. This meant that Singh would need to prove that they were factually true or lose the case. [Proof that the BCA knowingly promoted bogus (or "quack") treatments would have been almost impossible.]

In appealing, Singh argued that the trial judge elided the issues of meaning and comment when he used an unwarranted "verifiable fact" test to eliminate comment as a defence; overlooked the context of the words and paraphrased them damagingly; and marginalised or underrated the value placed by the law on public debate regarding issues of public concern.

Held: Appeal allowed.

The court said:

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.

The trial judge erred both in conflating the issues and in treating the first of them as one of verifiable fact. It is one thing for a court to investigate the truth of clear assertions. It is another for it 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." The material words were expressions of opinion. In the scientific context of this debate, no evidence (or "not a jot of evidence") meant no worthwhile or reliable evidence. This is an evaluative comment which a court cannot treat as one of verifiable fact. Singh was offering an opinion, backed by his reasons for it.

Once this is established, the word "happily" loses its sting, and it is in any event doubtful that happily meant more than, say, "blithely", as opposed to "knowingly". Accordingly:

The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy [which is a matter of opinion]...

Singh was entitled to a fair comment defence (the court observed that it would be better henceforth, in contemporary circumstances, to refer to this as "honest opinion"), and it was necessary to substitute the court's preferred meaning for the trial judge's. Accordingly, Singh can now use this defence in the trial. [The effect of this will make the case of the BCA far more difficult.]

Comment: The judgment purports not to create new law, despite the recommendation that the defence of "fair comment" henceforward be called "honest opinion" within its jurisdiction. It claims to apply existing law to the facts of the case before the court. Nonetheless, it gives judicial backing to the high importance of free speech on matters of public interest, and of scientific controversies being settled by the methods of science rather than by litigation. The dicta on these matters will be persuasive in future cases.

In future defamation cases in England and Wales, opinions on matters relating to the cogency of scientific evidence will be treated ... as opinions. [Edit: There needs to be some limit to this, though, as Scepticlawer worries about over here. Beyond a certain point, well-established science must simply be accepted by the courts as fact.]

Should the case proceed to trial on the basis of the appeal court's ruling, it's difficult to see how the BCA could win. Its better tactic might be to appeal, but the judgment is unanimous, comes from a very strong bench of the Court of Appeal, and is (I submit) clearly correct. Its logic appears unassailable.

If so, a further appeal by the BCA would have little prospect of success. Will the BCA now try to settle, or will it risk a further appeal hearing? Perhaps it will offer to settle all accrued causes of action between the parties on the basis that they each bear their own costs to date. But Singh is now in a good tactical position, and perhaps he can do better than that (should he push for his own costs, or at least part of them? Obviously, his lawyers will be thinking about what settlement might be realistic and acceptable...).

In all, the outcome to this point is a highly favourable one for science and for free speech. We await the next step.


Jeff D said...

As an American lawyer, I'm close to the bottom of the learning curve with respect to British libel law. But I was pleased by the Court of Appeal's opinion and its reasoning. Judge Easterbrook is my least-favorite jurist on the 7th Circuit Court of Appeals here, but I confess that I felt a little thrill in seeing one of his better opinions quoted by the British Court of Appeal.

Jeff D

Tony Lloyd said...

Simon Singh is in the unenviable position of risking huge amounts of money on this case on his own. No one has a right to give him advice on what to do next.

That being said:
- An appeal to the Supreme Court by the BCA has very little chance of success.
- A defence of "honest opinion" would be pathetically easy for Simon to run.
- Simon has grounds for his own libel action against the BCA who, in a press release, accused him of acting "maliciously".

For me to say "Simon should tell the BCA where to go with an offer of part of his costs" or "Simon should go for the jugular" or even "settle for everything you can get and then sue their arse" simply because I would enjoy the spectacle would, though, be wrong.

Russell Blackford said...

His lawyers have a duty to give him that advice, at least if he asks for it ... which of course he will. Anyone else has a right to say whatever they want, but we can really only await what happens: he should obviously be getting proper legal advice from his own lawyers, who are experts in this sort of litigation.

Shane said...

Procedural question here - suppose the BCA decide to drop the case without any further discussion - do they then become legally liable for Simon Singh's costs, or does he have to (say) launch a civil action against them for costs recovery?

After all this, Simon should write a book about the whole business - it should be a cracker...

skepticlawyer said...

Shane: The parties would need to make an application for a separate costs order, which is treated a little like a 'settlement at the door of the court'.

Shane said...

Skepticlawyer, thanks. I guess it is to be hoped that the BCA do indeed suck this up, back down and take the hit. Although they made an astonishingly stupid decision to sue, it is difficult to imagine that they remain happy or blithe at least in this matter. How can they appeal this ruling? How can they win in the face of this ruling? Unless they have a real corker up their sleeves, the game is up. No offence, but I think enough cash has been spent on your colleagues on this ;-)