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Simon Singh’s Libel Suit

by Steven Novella, May 11 2009

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.

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48 Responses to “Simon Singh’s Libel Suit”

  1. MadScientist says:

    Just Simon’s luck – there was a special on for exceptionally stupid judges that week. It is somewhat comical in a way – it appears as though the judge took a single phrase and attempted to analyze it as if it were a fragment of a legal text in a foreign language.

    I’ve sometimes wondered about the history of such laws in the UK; is this a remnant of laws instituted hundreds of years ago with the explicit intention of silencing the vulgar masses or perhaps allowing someone of higher social status to shut up an unpopular critic of only slightly lower status?

  2. Wrysmile says:

    skeptical lawyer Jack of Kent was at the hearing and has a good write up of the hearing and the options available.

    http://jackofkent.blogspot.com/search/label/Simon%20Singh

  3. Old Ben Kenobi says:

    What sad times for England. A once great nation being chipped away by radicals and nuts. It is situations like this that demand that those within the sceptical community with expertise in these matters step forward and help push back the tide of fraudulent claims, religious myths and superstitions

  4. TLP says:

    It’s not impossible to prove they are deceptive. It’s very easy:
    1) Show them the evidence they’re wrong.
    2) See if they change their business.
    3) If they do, you lose the battle but win the war.
    4) If they don’t, you win the battle and go on fighting.

  5. Anonymous Coward says:

    >>2
    Thanks for the link.

    I think the only way to get something positive out of this is to turn it into a book or documentary or something like that. Lone hero getting trampled by the system, evil power abusing judge, blatantly unjust system, courts protecting the crooks… people will love it.

  6. Dax says:

    This is exactly the same ruling that silenced the Dutch Anti-quackery foundation… only that was an actual ruling. The people from “Stichting Kwakzalverij” listed some crackpot idiot in their list of “Quacks of the century”. She sued, and the judge rules that, since she truly believed in the quackery she prescribes to, it is slander and libel to call her a quack!

    The world is insane…*sigh*

    At my UK university we have a Student & Employee wellness weak coming up, which includes special CAM days in which we can get free advice and treatment! Yes, I always wanted that Reiki, maybe with some nice Quantum Touch, too! The other day, in the Bioscience building (and mind you, we have a strong evolutionary based biodiversity & ecology department), some evangelic organisation hosted a lecture by Dr. Monty White, a notorious YE creationist.
    We just keep giving quacks and crackpots more and more space, and meanwhile they demand even more “respect”, i.e. us shutting up and letting them rule the world.

  7. Mike says:

    I think this represents a great opportunity to show up chiropractic for the quackery it is! I am often telling people far more bluntly what I think of them but usually in private and not in print! and England certainly doesn’t have a monopoly on idiot judges – you have some wacky ones in the US too.

    I would not write off the English Judiciary just yet(it is the High Court of England as Scotland has its own judicial system) as the Court has yet to make its decision and after all, judges are expert at weighing up the evidence and isn’t that what scepticism is all about?

  8. Claire says:

    A report from a recently concluded inquest in Dublin, Ireland, into the death of an asthmatic man receiving peanut allergy desensitisation “treatment” from a chiropractor:
    http://www.independent.ie/national-news/courts/man-died-an-hour-after-being-treated-for-peanut-allergy-1719832.html

    “Bogus” indeed.

  9. PL Hayes says:

    “If successful, this would be a disaster for free speech in Britain and for science and skepticism.”

    And for public health.

  10. Perhaps we need to invent a new derogatory term for treatments and practices that are not based upon sound science and lack evidence of efficacy. We can specifically define the term as not implying conscious fraud or inferring anything about the knowledge, intent, or motivations of the practitioner – just the unscientific status of the claim itself.

    Right now we use the term “woo” in this way, but there is also a suggestion of the paranormal with that term. We need a more all-purpose term.

    Any suggestions?

    • Max says:

      snake oil

    • tmac57 says:

      Nonscience?

    • Max says:

      Quackery, according to Quackwatch, but not the dictionary.
      http://www.quackwatch.org/01QuackeryRelatedTopics/quackdef.html

      “Dictionaries define quack as ‘a pretender to medical skill; a charlatan’ and ‘one who talks pretentiously without sound knowledge of the subject discussed.’ These definitions suggest that the promotion of quackery involves deliberate deception, but many promoters sincerely believe in what they are doing.”

      “All things considered, I find it most useful to define quackery as the promotion of unsubstantiated methods that lack a scientifically plausible rationale. Promotion usually involves a profit motive. Unsubstantiated means either unproven or disproven. Implausible means that it either clashes with well-established facts or makes so little sense that it is not worth testing.”

      • The judge at the trial in his ‘judgement’ specifically stated that he viewed calling a treatment ‘bogus’ to be akin to calling it ‘quackery’ which he decided must involve intentional deception and fraud. So using quack wouldn’t have resolved the issue in this case :(.

    • Mike says:

      Pseudo-medical?

    • Wrysmile says:

      Lets combine them Wooquack, Quackwoo – lets just call it Wack

  11. Max says:

    “In Britain the person accused of libel or slander bears the burden of proof that their statements are true.”

    Now this is interesting. We skeptics always say that the claimant bears the burden of proof, and Simon Singh the one making a claim. But of course in a trial, the plaintiff is the claimant and as such bears the burden of proof.

    • PaulJ says:

      Although English libel laws appear skewed, I believe they are designed to protect people from having unfounded lies spread about them. If someone makes a defamatory statement about you, you have the right to call them on it. It’s up to them to show that their claim is true. Unfortunately in this case it’s easy enough to show that the BCA’s claims for chiropractic are indeed bogus – in the normally accepted definition of the word – but the judge has chosen to interpret the word in an uncommon manner.

      • Max says:

        And if there’s not enough evidence that the defendant is guilty or innocent, then he’s guilty by default because he couldn’t prove himself innocent?
        You see how that’s back-assward?

      • Max says:

        Do they have any satire left in Britain?
        Imagine. Any time you make a joke about someone, you better be able to prove that it was a joke.

  12. Dax says:

    Perhaps we need to invent a new derogatory term for treatments and practices that are not based upon sound science and lack evidence of efficacy.

    I thought we already used the word “crap” for that…

  13. Max says:

    By the way, Keith Henson’s appeal was rejected last month. That’s the engineer and futurist who was jailed for “using threats of force to interfere with another’s exercise of civil rights.” He joked about aiming a nuclear “Tom Cruise” missile at Scientologists.

    Why was he so angry at Scientology? Among other things, they sued him for copyright infringement after he posted two pages of “New Era Dianetics” online to prove that Scientology was committing medical fraud. The trial judge didn’t let him argue that copying documents for the purpose of criticism is fair use. He was found guilty, was ordered to pay $75,000, and declared bankruptcy.

    That’s in the US.
    http://www.operatingthetan.com

  14. Max says:

    Has Big Pharma or the AMA sued any quacks for the incessant libel spewed by the quacks?

    • tmac57 says:

      I wondered the same thing, only about claims made in Britain since they seem to lean toward the plaintiff.

  15. catgirl says:

    Eady is not a good judge. When I see “bogus”, I am more likely to think it means ineffective, rather than fraudulent. Most words have multiple meanings and connotations. Singh says he meant it a certain way, and Eady is telling him he actually meant it a different way.

  16. Kubrick says:

    Skeptics around the world should unite, donate money to his legal fund and help him see this through to the end.

  17. Steve,

    As a point of interest, not long after the American chiros won their lawsuit, they came up to Canada. Emboldened by their victory south of the border, they came and backed the Canadian chiros and did the same thing..and won. Legally, Canadian chiropractors are now allowed to be called “doctor” even though they don’t have to go to med school. The chiropractic schools are very loosely monitored, and only some require an undergrad degree from an accredited university.

    • Some Canadian Sceptic,
      what you say is not accurate. Poor work for a self-proclaimed sceptic.
      Btw. Doctor is not a term unique to medical professionals, it is derivered from “docere” Latin for teaching. Which is very much what most healthcare should be about, and particularly healthcare which is likely to be non-urgent (i.e. don’t lecture about diet when I am having a heart attack). Hence why surgeons in the UK are called “Mr.”
      The low standard of chiropractic educational institutions you reflect here is a fabrication…
      to further your self-gratification I must surmise, although I suspect you have no clinical credentials, so maybe this is like most around things here “blog-o-tainment”
      Stefaan

  18. HHC says:

    The law in Great Britain or the Americas demands a high standard when using English. This requires skills on the part of those who criticize skeptically. Science is equally demanding in its terminology usage. The British judge is demanding a legal demonstration in the courtroom. This is possible.

  19. MadScientist says:

    This is so bizarre – so much for “only in America”. Essentially Simon is being ordered to defend a claim he never made!

    Let’s play a rhyming game: Eady rhymes with:
    greedy
    seedy
    weedy

  20. sonic says:

    Simon states “there is not a jot of evidence,” to support the statements made by the BCA.
    If this is true, Simon doesn’t have much to worry about.
    I fear that there is more than a jot of evidence to support the BCA’s statement and that Simon may be in some trouble.
    I’m not sure he shouldn’t be, if he has made false statements- and I’m thinking he has.

  21. I attended this hearing and wrote an account of it here:
    http://godknowswhat.wordpress.com/2009/05/07/singh-case-update-a-real-pain-in-the-neck/

    Oh and Sonic you really are missing the point. The evidence or lack of evidence for chiropractic treatments for childhood illnesses (including ear infections) is not going to be an issue that is examined now. The judge’s ruling on the ‘meaning’ means that were Simon to pursue the case he would have to argue that all BCA chiropractors promote treatments knowing they are false and with the intention of defrauding the public- that’s an impossible case to argue and it’s not what he said.

    Also, if you honestly think that there is any compelling evidence for chiropractic medicine treating things like ear infections I’d love to see it.

  22. Wrysmile says:

    Sonic did you read anything, what false statements did he make appart from the whole misinterpritation of the word bogus.

    Interview with Simon from Friday

    http://www.littleatoms.com/sounds/simonsingh2.mp3

  23. Gene says:

    I fully agree with Simon

    I no longer practice chiropractic and never for one moment did I buy into the nonsense claims made by chiropractors of their ability to treat non-musculoskeletal ailments.

    Colic, ear infections? Give me a break!

    • blog-o-tainment?
      what is a non-muculoskeletal ailment? I can see why you stopped practicing, you never got it in the first place!
      The fact an ageing man more than a hundred years ago says something about it really doesn’t define the way it is practiced and intended for today, really need to understand that possibilty, however intellectually challenging this may be to you… Maybe a review of the history of modern medicine might teach you something about how things evolve.
      Thing is, chiropractors are just very good at using a valuable treatment modality. Mainly because that’s all they do all day long… And it’s a treatment modality which can have substantial impact on the function of the musculo-skeletal frame-work which in turn CAN have substantial (and near-enough impossible to predict, hence why no chiropractor in the UK “treats” such conditions) effects outside of the musculo-skeletal frame-work. Call it positive fall-out. It happens all the time, but it doesn’t constitute “treatment” as for that to be the case you have to be able to predict the likelyhood of such response. This is so obvious to today’s chiropractic profession that it seems such an inane discussion to have.

  24. HHC says:

    Listened and read all the good links. Simon Singh stated he is interested in promoting the new book, Trick or Treatment and as a skeptic he stated he has a large bank account to back up his statements. Now this trial will be great public relations for him regardless of the outcome. By the way, Ben Goldacre was found not guilty of libel by this same judge with regards to criticism. So the judge is concerned with the use of the word “Bogus”. In the eleventh edition of the Oxford English Dictionary, bogus is defined as an adjective meaning not geniune or true. I don’t think its useful to argue like Singh’s barrister that the placement of the word bogus in a sentence makes a difference in interpretation. The judgment seems fair and I doubt that Singh can make a strong case for an appeal in 21 days.

    • The Goldacre case was a bit different though given just how villainous Matthias Rath is. He actually looks like a baddie and has a very well documented history of fraud. The fact that Eady would find in his favour really wasn’t that suprising. I’ve looked into this in some detail and Justice Eady overall has a terrible reputation for his judgements in libel cases.

      As far as the ‘placement of the word bogus’ changing the meaning. That wasn’t the argument of Singh’s barrister. The argument was that ‘bogus’ was defined in the following paragraph and was clearly Simon’s judgement from his research not the position of the BCA.

      Using your definition Singh’s case would have been just fine. He did mean that the BCA promoted treatments which do not help the illnesses they claim to thus they are promoted treatments which are ‘not true’. The judge defined bogus as meaning that you intended to intentionally deceive. That is the issue. As that is not an argument Simon made.

  25. HHC says:

    Chris Kavanagh, In American law fraud is positive and intentional. It is a perversion of the truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or surrender a legal right. Under British law, BCA has been accused by Singh of promoting bogus treatments, these treatment are false treatments, i.e. not true or not genuine as the Brits would say.

  26. HHC says:

    American litigation does not normally consider mere opinion as actionable. But if a false statement is rendered by an expert on a matter within the scope of his/her expertise, it may be actionable as fraud or negligent misrepresentation.

  27. Stewart says:

    I have yet to see any reasons to give him respect, but to give him the benefit of the doubt until demonstrated otherwise, Sir David Eady should be referred to as “Sir David”, not “Sir Eady”.

  28. Anonymous Coward says:

    I think that to pin the blame solely on British libel law is in this case not warranted. What makes this particular case so problematic is that the judge is deliberately reading something in the text that it manifestly doesn’t say. Picking on the word bogus, assigning it a meaning that was not intended and is contradicted by the very next paragraph, is just an excuse or cover. When judges start ignoring reality, justice is pretty much fucked; when they start making up their own facts it doesn’t really matter what the law says, as they can make you have transgressed it no matter what. Maybe British libel law is partly at fault in this case for making it easier to pull this, and maybe it is at fault more generically for being unjust, but that is not the primary cause of this particular miscarriage of justice. It is the abhorrent behaviour of the judge and the society that lets him get away with it.

  29. Beatis says:

    @ Dax & anyone else who might be interested:

    The Dutch Society against Quackery appealed the verdict. The appeal was brought before the Dutch Supreme Court, who ruled in favour of the Society against Quackery and quashed the earlier judgment.

    The ruling of the supreme court and the conclusion (advice) of the advocate-general can be downloaded here:
    http://www.kwakzalverij.nl/1051/Opgelucht_over_arrest_Hoge_Raad

  30. Beatis says:

    Sorry, forgot to mention: it is of course an English translation.

  31. Camilla says:

    In this debate over “bogus”, I am reminded of the philosopher Harry Frankfurt’s musings in his short book “On Bullshit”. Frankfurt argues, fairly persuasively, that bullshit statements are different than lies – lies imply that their speaker knows the truth of the statement and deliberately chooses to state the opposite. Speakers of bullshit statements, on the other hand, are completely disinterested in the truth (or falsity) of their statements. Perhaps Singh would have been better off referring to the BCA’s claims as bullshit (which it seems to me that they are) rather than bogus.

  32. Robert Smith says:

    We totally agree with Simon.
    http://lexfamilychiro.com/