I have been following your legal difficulties with interest and some dismay ever since Mr Justice Eady issued his notorious statement on the meaning of your suggestion that the British Chiropractic Association "happily promotes bogus treatments". Like many others, I was until that moment blissfully - indeed, happily - unaware that chiropractors claimed the ability to treat childhood ailments such as "colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying". I agree wholeheartedly with you, and your colleague Professor Edzard Ernst, that the onus should be on anyone making such (on the face of it, improbable) claims to provide sound scientific evidence, not least because chiropractic treatment is invasive and not entirely without risk.
I am however no fundamentalist on the issue of alternative medicine. I accept - indeed, assume - that chiropractors who make such claims are, in general, honest. However dubious the origins of the discipline (and in your book Trick or Treatment?, co-written with Professor Ernst, you expose in eye-popping detail chiropractic's roots in pseudoscience and quackery) modern chiropractors are motivated by a desire to make an honest living and provide high-quality care for their patients. It is not in their long-term interest to make misleading and false claims. The BCA allege that your remarks, made last year in the Guardian, suggested otherwise; but I found nothing therein which suggested to me either that they were dishonest, or that you believed that they were.
Unfortunately, Eady decided otherwise. There has been much comment, online and more recently in the mainstream media, about the narrowness of this ruling and the potential dangers it poses (along with other use and threatened use of the law of libel) for free debate on matters of important public interest. In particular, there would seem to be a clear contradiction between the principles of scientific inquiry, which require a person making a claim to provide solid evidence to back it up, and those of libel, in which the burden of proof is laid upon the defendant. The campaign group Sense About Science has as its motto "keep libel law out of science". Even Eady wrote, in his ruling, that "All of us recognize the importance of the freedom to express trenchant and even offensive opinions on matters of public interest". It must be said, however, that the effect of his decision will be to make such debate more difficult.
For this reason, you asked the Court of Appeal for leave to challenge the ruling. Unfortunately for you and for your many supporters, who urged you to continue the fight, your initial approach has been rejected. It is however open to you to submit an oral challenge, or to find another grounds for appeal. If Eady's decision stands, it will be difficult if not entirely impossible for you to make a strong case at trial. But even if it were overturned, you would still have an evidential mountain to climb. The balance of scientific evidence may well be on your side, but your contention that there was "not a jot of evidence" to support the BCA's claims would be less easy to establish.
A court of law is not the best forum to decide matters of science in any event; and even on a less narrow construction of your words it is unlikely that a trial would enable the full airing of the evidence that you may hope for. A defeat would be costly both financially and in terms of the propaganda victory it would hand to the BCA. Even a victory would probably leave you out of pocket. Max Mosley, whose action against the News of the World was much shorter than your libel defence has already been, found himself £30,000 out of pocket even after collecting his damages of £60,000 from the newspaper which had invaded his privacy. As a general rule, libel actions are the indulgence of the rich - or of those, like the "McLibel Two", who have nothing to lose.
Many people around the world share your desire to defeat a misconceived and bullying libel claim, which tellingly was made against you personally rather than against the Guardian. Like you, they are angry at the terms of Eady's ruling. A great many journalists, in particular, have a personal dislike of the judge as a result of his extension of the law of privacy, while for many supporters of science a victory for the BCA would seem like a defeat for rationality and free enquiry. There are strong feelings on both sides, and you naturally feel buoyed up by the support you have receieved. But you do not owe it to science, or to your supporters, to stake everything you own on a case which, at best, has an uncertain prospect of success. No true supporter of yours will feel let down if you bow to the almost inevitable and make some form of accommodation with the BCA. And for its part, the BCA now seems anxious to settle what has been, in PR terms, a disastrous episode.
I have previously suggested a form of words - which some have dubbed the "Heresiarch manoeuvre" - which would enable you to concede very little in terms of your actual meaning while acknowledging the defamatory nature of the meaning attributed to you by the judge:
1) My intention in the article was not to impugn the honesty or integrity of the BCA, but merely to raise questions as to the scientific validity of some well-publicised chiropractic claims, specifically with regard to the treatment of childhood conditions such as colic.
2) The judge has concluded that the words used suggested that the BCA was knowingly dishonest. Since this was never my intention, I am of course happy to withdraw those remarks in the sense in which they have been interpreted by the judge.
3) I reiterate, however, my belief that notwithstanding the bona fides of the BCA, chiropractic treatment for such conditions is not supported by the scientific evidence.
The advantage of this approach is not merely that it leaves open the question of scientific justification (which is not appropriate for a court of law to determine). It also subtly undermines the BCA's case. For if Eady's ruling offers the BCA an easy victory, it also renders that victory extremely narrow. In addition to the definitions of "bogus" and "happily" that have caused such controversy, Eady also made this important observation:
12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit.
Yet in deciding that your article accused the BCA of being "dishonest", Eady effectively took the question of their "irresponsibility" out of the equation. He concludes by saying that "What matters is whether those responsible for the claims put out by the BCA were well aware at the time that there was simply no evidence to support them." All you have to accept, it seems to me, is that at the time the claims were made the BCA were not so aware. You may continue to assert that they ought to have been.
I believe that it is also the case that the BCA are no longer making these claims: certainly, the relevant pages have been deleted from their website. That, in itself, is a signal victory.
There are drawbacks to this course of action. For one thing, you will have to pay the BCA's legal costs; and for another it would enable the BCA to boast that "a high court judge ruled that chiropractic treatments could not be described as 'bogus'". But set against that is the fact that, as a result of this case, the more contentious chiropractic treatments have been subjected to detailed and unanticipated scrutiny. Even registered chiropractors may have become aware for the first time of the lack of evidence for some of their practices. Morally, if not legally, your case has been a victory for the scientific method.
Some still want their (i.e. your) day in court - including, perhaps, Professor Ernst, who has written in the BMJ of what appear to be "curious omissions" in the BCA's presentation of evidence. But in truth, this is not even your fight. You are a physicist and mathematician by training, disciplines rooted in precision and objectivity which aspire to be "pure science". In venturing into the area of alternative medicine, you have placed yourself - perhaps without fully recognising it at the time - into an area which is far more contentious, far more "political", and far more riven by factionalism, than you were probably used to. Some scientists and science writers make it their life's work to debunk scientifically dubious claims, to be professional controversialists fighting for reason against superstition. In your career, by contrast, you have used your talents as a writer and broadcaster to entertain and enthuse the public with the beauty and power of science, to explain complex topics in simple language. You could be forgiven for wishing to withdraw from this arena entirely and turn to new and possibly more congenial projects.
Whatever you choose to do, you have my profound gratitude and respect. And I enjoyed the book.
Sunday, 2 August 2009