Britain has insane libel laws – that is, if you care at all about freedom of speech. In Britain the person accused of libel or slander bears the burden of proof that their statements are true. In the US the person bringing the suit has the burden of proof that the statements are false, that the accused kn0wingly lied and their lie resulted in demonstrable harm. Therefore in Britain it is far easier to use the threat of suit to silence critiques, because they are put immediately on the defensive (the concept of innocent until proven guilty does not apply).
Simon Singh is learning the harsh truth of British libel laws first hand. He is the co-author, with Edzard Ernst, of Trick or Treatment – a devastating criticism of so-called complementary and alternative medicine (CAM). He, like the authors of this blog, is an activist skeptic who takes it upon himself to shine the harsh light of science and reason onto bogus and harmful claims. We all put ourselves at risk in doing this, but far more so those doing so in Britain.
Simon Singh wrote an opinion piece about the British Chiropractic Association, which included the following paragraph.
“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.”
This is actually mild criticism for a skeptical comment on the chiropractic profession. But the BCA decided to sue Singh over this passage. Last week a British high court made an initial ruling on the case.
The judge, Sir David Eady, had to first decide if the statement was comment or a statement of fact. He also had to decide what the meaning of the passage was. This will set the stage for the full trial, because it will determine what Singh will have to prove. Singh’s original article was published as commentary on the comment page. Never-the-less, the judge decided the passage was a statement of fact.
This is a much tougher standard. If it were ruled a comment than Singh would only have to prove that it is reasonable. Since it was ruled a fact, Singh has to prove that the statement is factually true. This in itself was not a disaster, as I believe Singh could probably do just that, but it was a disaster when coupled with the judge’s next ruling.
Sir Eady further ruled that the term “bogus” implied that the BCA and its members know that their treatments do not work and are being deliberately deceptive. Now Singh has to prove that the BCA does not believe their own claims, which will be impossible and probably not even an ethical defense.
What rubbish. It seems as if Sir Eady simply looked the word “bogus” up in a dictionary, saw the word “fraudulent” as a possible definition (along with not genuine, fake, and imitative) and decided that it what it meant. But context is everthing. The term “bogus treatment” is used commonly to simply mean a treatment that does not work. It is obvious from Singh’s other writings that he does not believe every practitioner of “bogus” treatments is consciously lying.
In fact the next paragraph of the same article clarifies this:
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.
He can label them “bogus” because he knows that there is no evidence to show that they work. He does not say that they are bogus because he knows the BCA is lying. It appears Sir Eady either did not read or understand this following paragraph.
Simon Singh cannot possibly defend himself under this ruling. So his only options at this point are to settle or to appeal, which he must decide within three weeks. I certainly hope he appeals, if it is legally viable.
This case has implications that go beyond just Simon Singh and the BCA. Skeptical bloggers and commenters live under the constant threat that those we criticize will try to silence us with law suits. This happens with a distressing regularity. Whether they are con-artists or true believers (a distinction about which we rarely speculate), the promoters of various forms of CAM generally do not want critical analysis of their claims. They appear to prefer operating in the dark, and react very negatively to those shining a light on their shenanigans.
Within academia they have justified advancing their agenda under the radar because, they claim, they will be persecuted by the closed-minded. By “persecuted”, they mean critical analysis of their scientific claims, and by “closed minded” they mean those not already true believers in their ideology.
In the 1980’s in the US a consortium of chiropractors successfully sued the American Medical Association for restraint of trade – for telling their members not to refer to chiropractors. The AMA lost this case with a narrow ruling that they cannot do this – although it was expressly stated in the ruling that the AMA is free to criticize chiropractic all they want. Despite this the law suit has successfully silenced the AMA, who now makes no effort to stem the tide of unscientific medicine. Chiropractors also use this judgement to attack their critics. I was once “informed” that I am not “allowed” to criticize chiropractic – in direct contradiction to the actual ruling.
The BCA is now trying to replicate this victory for quackery in Britain. Rather than providing evidence that their treatments work, they apparently prefer to silence their critics with law suits. If successful, this would be a disaster for free speech in Britain and for science and skepticism. Science requires open and transparent criticism of all claims. Libel laws should be used to defend onself against a deliberate attack on one’s character and reputation, not as a method for shielding claims from public scrutiny.