This blog has in the past had occasion to support Mr Justice Eady. But I was very disturbed to learn of his decision yesterday against the science writer Simon Singh. Singh - bestselling author of The Code Book - is being sued by the British Chiropractic Association, which claims that he defamed them in an article he wrote last year for the Guardian. While not a final judgement, Eady's ruling - described by legal blogger Jack of Kent (who was in court) as "astonishing and highly illiberal" - has the effect of wrecking Singh's defence before it has even begun. In the process, it not only threatens the writer with ruinous legal costs but undermines anyone who seeks to expose charlatanism and subject pseudoscientific claims to proper proof. Purveyors of superstition and exploiters of the vulnerable will now be confident that the law of defamation is on their side.
The ruling turned on the meaning of the word "bogus". In a passage that particularly riled the BCA, Singh wrote that:
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.
Eady ruled that "bogus" meant "deliberately false", and that therefore Singh could only defend the case by proving that the BCA knew their discipline was fraudulent. Which is, of course, something he never actually claimed. It's hard to see how he reached this conclusion. My dictionary (Chambers, naturally) defines bogus as "counterfeit, spurious", while noting that it is "an American cant word of very doubtful origin". A thing may be bogus even if many people believe in it. Scientology, for example (yes, I know, they have lawyers too). The Hitler Diaries were "bogus", but there was never any suggestion that Hugh Trevor-Roper was dishonest, rather than foolish, when he "authenticated" them. When Singh writes that the BCA "happily promotes bogus treatments" he does not, by any normal sense of the English language, accuse them of being deliberately dishonest. At most, he is suggesting that they are reckless about the validity of the treatment. And, to avoid all doubt, the very next paragraph spelled out what he had meant:
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.
In other words, chiropractice was bogus because there was no evidence to support it, not because its exponents were malicious. Moreover, as Jack of Kent notes, Singh's lawyer had "strongly emphasised" the passage in her oral submission. Unfortunately, "the judge did not take a single note during the oral submissions of the BCA, and he hardly took a note during Singh's submissions". He had made his mind up before the arguments even began, and the ruling appeared to go beyond even what the BCA had argued for.
The decision effectively deprives Singh, not merely of his primary defence, but of any defence. Even if he proved beyond all doubt that chiropractic treatments were worthless, he would still have libelled the BCA. He can appeal, but preliminary rulings are rarely overturned in the higher courts. There is talk of taking the case to the European Court of Human Rights, but that would be time-consuming, expensive and of uncertain result. Nor is there much prospect of Parliament coming to the rescue. This is common law, and has always belonged to judges. JoK thinks that "there would surely be no shame in settling because of this bizarre and illiberal ruling on meaning". No shame, perhaps, but the ramifications for journalism, and indeed for public interest, would be severe. It would, on the other hand, be very good news for quacks. Or perhaps it just means - precedent being precedent - that we can't say "bogus" any more, and we'll have to come up with another word for piffle. Hard to say. But Eady, I fear, is no more a lexicographer than he is a scientist.
Although a piece of journalism is not the same as peer-reviewed research, it is deeply disturbing that judges should consider themselves appropriate people to decide scientific facts - or that the archaic libel laws should be at all applicable in this area. English defamation law has always been a potential danger to free speech because it places the burden of proof on the defendant. It is only fairly recently, though, that lawyers have begun to exploit libel law to silence criticism of factual claims and exposés of pseudoscientific charlatranry. Where issues of scientific debate are concerned, in addition to the abstract principle of free speech there is a strong public interest in rigorous debate unaffected by fears or threats of libel writs. Science works by peer review, not judicial review. As "Ritbiter" puts it in the current Private Eye, "the scientific method consists of a researcher putting forward a new proposal and his or her colleagues testing the living daylights out of it without fear of the consequences".
Ratbiter highlights the case of Dr Peter Wilmshurst, a cardiologist, who "is faced with a crushing court action because he questioned the effectiveness of a procedure by the American medical company NMT to close holes in the heart". What started as a normal scientific dispute took a sinister turn when the company brought in the lawyers. In another troubling recent example, two respected phoneticians were threatened with libel proceedings by a manufacturer of lie-detectors (the sort the British government wants to use on benefits claimants) after writing - in a peer-reviewed journal! - that the devices were scientifically worthless. Likewise, Simon Singh himself has good reasons for damning chiropractic. His "banned article" (which is available here) went on:
In 2001, a systematic review of five studies revealed that roughly half of all chiropractic patients experience temporary adverse effects, such as pain, numbness, stiffness, dizziness and headaches. These are relatively minor effects, but the frequency is very high, and this has to be weighed against the limited benefit offered by chiropractors.
More worryingly, the hallmark technique of the chiropractor, known as high-velocity, low-amplitude thrust, carries much more significant risks. This involves pushing joints beyond their natural range of motion by applying a short, sharp force. Although this is a safe procedure for most patients, others can suffer dislocations and fractures.
Worse still, manipulation of the neck can damage the vertebral arteries, which supply blood to the brain. So-called vertebral dissection can ultimately cut off the blood supply, which in turn can lead to a stroke and even death. Because there is usually a delay between the vertebral dissection and the blockage of blood to the brain, the link between chiropractic and strokes went unnoticed for many years. Recently, however, it has been possible to identify cases where spinal manipulation has certainly been the cause of vertebral dissection.
Singh mentioned the case of a 20 year old Canadian waitress who died of a ruptured vertebral artery in 1998 after a chiropractor manipulated her neck. This was "not unique". Ernst, he explained, had identified 700 cases of "serious complications" from the medical literature. "This should be a major concern for health officials," he writes. It's certainly the sort of information that should be put before the public.
I'm beginning to understand why Private Eye thinks Eady is so dangerous.