Simon Singh and libel

Simon Singh's high wire act in appealing Mr Justice Eady's ruling on the meaning of the word "bogus" has at last been receiving the attention it deserves. As the case - brought by the British Chiropractic Association, in case you haven't been following it - finally made it into the mainstream media last week, campaigning organisation Sense about Science released a statement in his support. Signed by many distinguished scientists and public figures - including Stephen Fry, Richard Dawkins and Baroness Helena Kennedy QC - it makes the important point that:

Freedom to criticise and question in strong terms and without malice is the cornerstone of scientific argument and debate, whether in peer-reviewed journals, on websites or in newspapers, which have a right of reply for complainants. However, the libel laws and cases such as BCA v Singh have a chilling effect, which deters scientists, journalists and science writers from engaging in important disputes about the evidential base supporting products and practices. The libel laws discourage argument and debate and merely encourage the use of the courts to silence critics.

English libel laws, with their reversed burden of proof, their "no-win, no-fee" appeal to hucksterish lawyers, high costs and encouragement of libel tourism by foreign malcontents (Saudis suing Americans, Icelanders suing Danes, even Ukrainians suing other Ukrainians) have become a major national embarrassment. As one of the most notable victims of libel tourism, Rachel Ehrenfeld, writes, despite numerous campaigns and criticism from the UN it "remains a well-established and most profitable industry". American states are now racing to come up with new Declarations of Independence to free their citizens from the chilling effect of London litigators. The Sunday Times reports that Congress is now "considering a bill that will allow defendants of foreign libel suits to counter-sue for up to three times the damages sought by a claimant if their right to free speech, enshrined in the First Amendment, has been violated". Good for them. If only our lawmakers were as keen to stand up for freedom of expression - especially in so vital an area as science and medicine, where patients falling under the spell of bogus practitioners can find their health seriously put at risk.

It is true that the House of Commons culture, media and sport select committee has been considering the whole area of privacy and libel for some months now (Max Mosley was a memorable, and impressive, witness; Paul Dacre of the Mail less so). Its chairman, John Whittingdale, has expressed his concern of the effect libel writs have had on the work of NGOs who wish to criticise dictators. But there's little indication that the government is about to legislate to protect freedom of expression, although they have in the past been happy to legislate to restrict it.

Libel belongs largely to the common law - it has never been properly set out in legislation, but has been built up over the centuries by judges deciding particular cases. (Minor statutory tinkering such as the Defamation Act of 1996 have been concerned mainly with questions of procedure.) As a result it is woefully ill-adapted for the modern world. Although he has faced particular criticism in several cases, the current dire situation is not really the fault of Mr Justice Eady, however regrettable (indeed, baffling) was his decision in Simon Singh's case.

Predictably, their pursuit of Singh over an easily-overlooked article in the Guardian has backfired on the BCA and on chiropractors generally - indeed, proponents of unconnected (if equally or even more bogus) therapies such as homeopathy have been caught up in it, as the controversy draws public attention to the lack of scientific evidence for almost any alternative medicine. This in itself is a welcome change. In his book Trick or Treatment (written with Prof Edzard Ernst) Singh criticises the media for their tendency to exaggerate the benefits of alternative remedies while overplaying scare-stories about scientific medicine. The MMR scare is perhaps the most obvious example of the latter. This is perverse, of course - not least because conventional treatments are only offered to the public after undergoing rigorous clinical trials, whereas anyone can hang a sign outside their front door claiming to be some sort of "therapist". In that context, it's good to note that the Mail - perhaps the worst offender, in both respects, in Britain's print media - should have carried a largely supportive report about Simon's predicament. Perhaps they feel it advances Paul Dacre's ongoing campaign against Eady.

Martin Robbins at Lay Scientist has a great report on the backlash being experienced by the BCA and by chiropractors in general. He notes that:

Chiropractors are complaining of receiving letters from angry people across the country. Mass complaints have been sent to Trading Standards and the ASA. The General Chiropractic Council have been deluged with complaints about their members. In short, the chiropractic profession in Britain is now under siege from an aggressive grass-roots campaign, and facing a public relations nightmare that the BCA have created for themselves. What must have looked at the time like a clever response to silence a skeptic has turned into a catastrophe, as their increasingly angry and desperate press releases appear to show.

All this bears out Jack of Kent's analysis that the case is, if not (legally) weak, then misconceived. One chiropractor who dissents from the BCA's action, Richard Lanigan, writes that

It would be funny if it was not so tragic for the chiropractic profession, and the BCA leadership will not have the sense to call off their dogs. On the other hand it could turn out that the BCA council knew exactly what they were doing and their action was deliberate so chiropractic sceptics would clearly demonstrate the GCC [General Chiropractic Council] is not fit for purpose and unable to regulate the chiropractic profession.

Lanigan also has news of what he calls the "spineless" action of one chiropractic group, the McTimoney Association, which has apparently ordered its members to delete their websites and destroy any leaflets which mention the more controversial claims. Their email refers to a "witch-hunt" against chiropractors. As for the BCA itself, in its latest press release it claims it sued Simon Singh only "as a last resort" (in other words, after he declined to withdraw his comments) and, bizarrely, that the organisation is "fully supportive of scientific debate and this should be a fundamental right". Of course they are; as is Justice Eady, presumably, who made precisely the same assertion in his ruling. They also deny that the case has any bearing on freedom of speech, relating merely to "the proper censuring of individuals’ ability to publish false and defamatory material". Most strikingly, they claim that "with rights come responsibility and scientists must realise that they cannot simply publish with impunity what they know to be untrue and libellous." That reads to me like an assertion that Singh knowingly published falsehoods about the BCA - that he "happily promoted bogus smears" against them. I think that's defamatory.

Here's another thing. Simon Singh never wrote, or implied, that all chiropractic therapy was ineffectual or "bogus". Trick or Treatment goes thoroughly into the evidence, and concludes that for some types of back pain, at least, chiropractic manipulation had potential benefits - albeit no more than mainstream physiotherapy, and with attendant risks (cervical manipulation has, in some cases, proved fatal). Singh was complaining about the more far-out claims made by some chiropractors, notably that:

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 sentence led on to the phrase about the BCA "happily promoting bogus therapies".

Having carefully perused the BCA website, I note that nowhere on it are such claims made. Instead an explanatory paragraph states merely that:

Chiropractors treat problems with joints, bones and muscles, and the effects they have on the nervous system. Working on all the joints of the body, concentrating particularly on the spine, they use their hands to make often gentle, specific adjustments (the chiropractic word for manipulation) to improve the efficiency of the nervous system and release the body's natural healing ability.

The website also claims that "the effectiveness of chiropractic treatment is supported by research as well as by various UK government and medical organisations" - but the researched referenced on the site relates almost entirely to the treatment of lower back pain, which is the one area in which Singh's book concedes that chiropractic therapy might indeed be worthwhile. It is most unlikely that Singh made up the claim that the BCA was promoting scientifically implausible treatments for colic or asthma - otherwise he wouldn't be contesting the case. I can only conclude that the BCA itself now admits, tacitly at least, that such claims are indeed bogus.