BCA v Singh – the Story So Far

Martin Hadley is a barrister and the Treasurer of Australian Skeptics Inc. He reports on the history of the libel case brought by the British Chiropractic Association against Dr Simon Singh.

The latest news on UK scientist and journalist Simon Singh’s on-going ‘battle’ with the British Chiropractic Association (BCA) is that on April 1, 2010, the English Court of Appeal unanimously found in Simon Singh’s favour on an important preliminary point. This point had previously gone against Simon when first decided by a single judge.

This most recent result could be like the breakthrough try that puts a team ahead just before half time, but such metaphors are problematic when there is so much uncertainty about how much work lies ahead. The appeal victory could provoke a settlement within weeks. Or we could see a long trial, in which chiropractic itself becomes the accused as Singh’s team show why the expression “bogus treatments” was rightly used. How did the parties get to this point?

On April 19, 2008, the Guardian newspaper published an article by Dr Simon Singh on a page labelled “Comment and Debate”. The BCA took exception to part of it. The newspaper offered a right of reply, but instead of pointing out why Dr Singh was wrong, they sued him for defamation.

A party who alleges they have been defamed is not obliged to accept an opportunity to reply. They do not have to accept even a generous apology or retraction. They have the option of going ‘legal’ immediately, but that entails a risk of appearing unreasonable and that can lead to reduced damages in the end.

If a newspaper article is defamatory, then the author and the newspaper can both be liable. The injured party, the plaintiff, usually sues both, or sometimes the newspaper only. It is very rare to sue only the author in person.

It is common for a plaintiff to cite the nastiest bit of an article. In contrast, the publisher will say the meaning is much more balanced and fair if you look at the whole thing. The law seeks to re-create the experience of the reasonable reader, and much judgement text over the years has been devoted to explaining that simple but elusive concept.

The highlighted words are what the BCA sued on. The rest is what Dr Singh says should be read to put that passage in context:

“This is Chiropractic Awareness Week. So let’s be aware. How about some awareness that may prevent harm and help you make truly informed choices? First, you might be surprised to know that the founder of chiropractic therapy, Daniel David Palmer, wrote that ‘99% of all diseases are caused by displaced vertebrae’. In the 1860s, Palmer began to develop his theory that the spine was involved in almost every illness because the spinal cord connects the brain to the rest of the body. Therefore any misalignment could cause a problem in distant parts of the body.

“In fact, Palmer’s first chiropractic intervention supposedly cured a man who had been profoundly deaf for 17 years. His second treatment was equally strange, because he claimed that he treated a patient with heart trouble by correcting a displaced vertebra.

“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.”

A critical thinker will see a number of issues and a mixture of fact and opinion. Let’s attempt a basic classification.

  • It is Chiropractic Awareness Week – fact. During what is presumably a marketing exercise by the chiropractors, Dr Singh ironically urges us to be aware of what is really going on. That we need to engage is clearly his opinion.
  • Then there are some statements about Palmer. We hope those are true.
  • Then: chiropractors do not confine themselves to back problems – apparently a fact.
  • Some have the idea they can cure anything – possibly a fact but it sounds exaggerated – and this is a whacky idea – opinion.
  • The BCA makes various claims about what their members can “help treat” – fact.
  • “There is not a jot of evidence for this”, ie no evidence that the members can help treat those ailments. That looks like an assertion of fact, provided we have some mutual understanding about what constitutes “evidence” and what “help treat” means. Is it an assertion of fact, or is Dr Singh saying that it is his opinion that they are bogus? Does context help? The next paragraph – remember it was in the article but the plaintiff did not include it in the statement of claim – could be read as justifying an adamant insistence that the treatments are bogus. Or do we take Dr Singh’s reference to “confidently” as indicating an opinion, albeit a firm one.
  • The BCA ‘happily promotes” these treatments. Again there is room for both the ‘fact’ and ‘opinion’ schools of thought, depending on what the words mean. We will see how this led to much of the argument so far.

We see how issues can proliferate. The plaintiff alleges a meaning which is damaging and which the defendant will not be able to show is true. The defendant says: “No, the meaning is different and I can show that meaning is true, or honest opinion or something else the law allows.” Defamation trials therefore have a unique structure to filter out hopeless claims early and to refine issues to make it easier for the jury to deal with them. The judge decides whether the words are capable of being defamatory. If so, the jury later decides what they mean.

A defamation plaintiff does not have to prove that the words are false. They must be damaging – and there are many judgements that develop that concept – but truth is there as a possible defence for the other side to use, if they can. It would have been excellent to see the BCA show why the treatments that Dr Singh mentioned are not bogus. Unfortunately, the law requires Dr Singh to show they are bogus. Bloggers have loudly condemned this ‘reverse burden of proof’. It seems incredible that the individual bears an onus of proof against the well resourced industry body.

The power balance is usually the opposite. The ‘victim’ is one person suffering at the hands of a media empire. However, a better reason is the logic of the situation. The victim will complain: “They have accused me of [some positive statement]. How can I prove the contrary?” For example, “Martin Hadley has been a practising scientologist since his teens and his infiltration into the Australian Skeptics to committee level represents one of the most successful exercises of its kind.” How can I disprove that?

By agreement of the parties, the judge posed the initial questions of whether the words could be defamatory and whether the BCA was complaining about statements of fact or opinion. The outcome would determine whether the trial continued and what defences were open to Dr Singh.

Dr Singh argued that his words meant: “Since there is no evidence for the treatments, I think they are bogus. The BCA is happily promoting treatments which I think are bogus.”

The BCA argued that the words meant: “It is a fact that the treatments are bogus, ie ineffective. The BCA knows this but continues to promote these treatments. That is irresponsible if not dishonest.”

The trial judge accepted the BCA’s argument and therefore found that the article was capable of carrying a defamatory statement of fact. Since Dr Singh had made a factual claim that the treatments were bogus, he would have to prove that was true to make out a defence of justification. It would not be a sufficient defence to show that it was his honest opinion that the treatments were bogus.

The Court of Appeal disagreed with the judge below and instead adopted Simon’s description of what the words conveyed. The main reason for that view might offend some scientists – that there is so much difference of opinion about what is or what is not scientific evidence, that any statement about the state of the evidence necessarily incorporated an opinion. “Not a jot” of evidence was like saying “nothing that I would call evidence”.

A consequence is that Dr Singh may still decide to prove that the treatments are bogus, or something more precise than that colourful term; but he can probably get out of the woods with the lighter burden of showing an honest opinion.

Among skeptics there is huge support for Dr Singh but this should not blind us to the interests at stake in a defamation case – a fair balance between freedom of speech and the protection of reputation. For any of us, the boot could be on the other foot one day. Most skeptics I know are not wealthy. Their integrity is their prized possession. If any of us were attacked for something like scientific fraud or plagiarism, we would value a system that offers some legal redress. We should not let the merits of Dr Singh’s situation distract us from the even temperament that we need to consider the wider reform issues.

Many of Dr Singh’s supporters are keenly engaged with the wider agenda of how UK libel laws must be reformed to avoid repetitions of this case. The UK is a common law jurisdiction where much law derives from statements of principle in earlier judgements. Reformers want action in Parliament but should be pleased right now at a number of comments by the three law Lords on matters of principle which are intended to resonate in the minds of other judges and defamation lawyers for years to come. Among Dr Singh’s supporters, a realisation will spread that a kind of reform has already occurred.

It is common for judges to make comments that go beyond what is necessary to decide that individual case. Such “obiter dicta” are coded to vary in intensity and significance from gracious bon mots to thunderbolts as from angry ancient gods. Here are the rumblings:

  • A need to protect reputation has not been served by public debate being chilled for two years. The questions raised by Dr Singh have a direct resonance for patients but they are unresolved – paragraph 11.
  • The current law has allowed the BCA to sue Dr Singh only and not the Guardian. This creates the unhappy impression that the BCA wanted to silence one of its critics, rather than refute his contentions or put them in a proper perspective – paragraph 12.
  • There are times when the Court will have to act as historian or investigative journalist in determining the truth of an asserted fact, when the assertion is highly damaging and truth is relied on as the defence. The Court will only go to that trouble when a fact is asserted, not an opinion – paragraph 22.
  • If the Court required a defendant to prove their assertion of opinion, then the Court has become like Orwell’s Ministry or Truth (a reference to 1984) – paragraph 23.
  • The conclusions to be drawn from data are a matter of scientific debate and value judgements. To say there is no evidence for something is therefore an expression of opinion – paragraph 26.
  • The judges adopted this quote from a US Appeals Court: “[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.”

Australian Skeptics will continue to monitor this case. We hope you will join us later this year to hear from Dr Singh in person when he will address the Skeptics’ convention TAM Australia in Sydney, November 26-28.