Tuesday, 11 August 2009

Simon fights on

Simon Singh, it seems, has no intention of taking my advice. Not now, and probably not ever.

He confirmed today that he is seeking to re-appeal Mr Justice Eady's finding on the meaning of his statement that the British Chiropractic Association "happily promotes bogus treatments". "I don’t think I am anywhere close to giving up and I don’t think I am behaving like a ‘damn fool’," he proclaims, defiantly. In fact, he seems to be relishing the opportunity the BCA libel case has given him, both to fight for the principle of free speech on matters of public interest and to draw renewed media attention to the often questionable claims of alternative medicine.

Of course, the initial ruling on meaning and the recent refusal of my application to appeal are hugely disappointing, but I have no regrets about the path I have chosen. My article is correct, it is about an important health issue and I believe I ought to defend it. Also, as I have said previously, I still have a chance of successfully defending the case and in the worst case scenario I will not be destroyed.

That is certainly a courageous decision.

What it means in practice is that the Court of Appeal, having already rejected a "skeleton" written argument submitted by his lawyers, will now hear an oral application. The hearing is scheduled for 14th October, which should give his legal team the opportunity to come up with some new arguments, and to strengthen those they have already put. Furthermore, Simon has announced his attention to take the case, if need be, to the European Court of Human Rights.

From a purely legal, and public-interest, perspective this is a good decision, for the point of law raised is one of considerable importance. His lawyers may wish to refer to a recent Dutch case, highlighted by Quackometer the other week, in which an appeal court found that a narrow definition of "quack" (similar in import to Eady's definition of "bogus") violated a defendant's right to free speech under Article 10 of the European Convention. Foreign precedents are not directly applicable in English courts, but in the context of human rights law this decision is obviously relevant. I would also suggest procuring an affadavit from an expert on English usage as to the natural meaning of Singh's words.

Singh writes today that "it seems obvious" that he should persist with the appeal process. I don't think that this is an unwise course - as he says, taking a second bite at the cherry at this stage will not be prohibitive in terms of cost, and it even stands a chance of success. It would be illogical, having made the original decision to contest the ruling, for him to back down now. Alea jacta est. "The potential rewards are enormous", he says, referring both to the possibility of vindicating his article (reinforcing his "concerns about the lack of evidence"), and to recouping his costs. Actually, he could still end up considerably out of pocket even if he is awarded costs. Max Mosley did - and he won £60,000 in damages. But he seems to feel that it's worth it, and it is, after all, his money.

Although I have suggested a form of settlement (the "Heresiarch manoeuvre") adhering strictly to the letter of Eady's definition -and thus not really apologising for anything - I can see why Singh and his supporters regard this as a cop-out. He should, if he so wishes, have the option of defending his comments as he, and the majority of his readers, understood them, not on Eady's narrow and frankly perverse interpretation. The natural meaning of "bogus" in the context is "ineffective" and of "happily" is "blithely", "without due regard to the facts". Singh meant, plainly, that the BCA, by repeating claims for which there was no evidence, was failing in the duty it had to members of the public who relied on it for advice. A trial based on Eady's meaning wouldn't merely be (as Jack of Kent put it), "artificial"; it would, in a real sense, be bogus.

Regardless of whether or not there was "not a jot of evidence" for the efficacy of the relevant chiropractic treatments (which could be a difficult negative to prove), what Singh would to establish - if he wins the appeal - is that, given its position as "the respectable face" of chiropractors in Britain, the BCA ought to have taken more care than it did to establish the veracity of the claims it was making. He writes that when the BCA first brought its libel action "I believed that I stood a reasonable or good chance of winning". If he is allowed to put the case, and it is heard by a jury, then I would agree. He has considerable backing from research, and the BCA has in any case withdrawn its most contentious claims. But if Eady's view stands, or if for whatever reason there is no jury, then he the case is effectively over.

The question of a jury (which so far has not come up in public discussion of the case) is potentially an important one. Usually libel suits in England are decided by a jury. However, under s69 of the Supreme Court Act 1981, if the judge decides that the case is too complex - for example, if it "requires ... any scientific or local investigation which cannot conveniently be made with a jury", he can try it alone. This happened in the McLibel case - where, in a worrying precedent, Mr Justice Bell (upheld by the Court of Appeal) decided that a jury was incapable of adjudicating on the health implications of a Big Mac. Eady will probably follow that - which would render any victory on the "bogus" meaning Pyrrhic. With a jury, a libel defendant can overcome a hostile judge - see the recent Richard Desmond case, the result of which (according to Private Eye) left Eady J "looking thunderous". Without - well, if reports are to be believed, Eady tends to take the advice of the Queen of Hearts: sentence first, verdict afterwards.

There's also another issue of substance to be decided: whether the BCA is in a position to sue at all. Singh writes:

The outstanding aspect of my defence (not covered in the May preliminary hearing) questions whether a corporation without shareholders can sue for libel. The BCA’s reputation is with its members and not the public, because it serves its members and does not trade with the public; my article was aimed at the public and would not have damaged the BCA’s reputation with its members.

This may seem a subtle point, but it's potentially very significant. On the question of the BCA's reputation being only with its members, I think that would be difficult to sustain. Yes, the BCA and similar associations exist primarily to promote the interests of their members (unlike the General Chiropractic Council, a statutory body charged with upholding standards by ensuring that chiropractors are registered with them). But one of the ways in which they discharge that function is by giving their members credibility: being a member of the BCA is something a chiropractor might want to advertise. The title "sounds" official, even if it isn't. If, as a result of SS's article, the BCA comes to be seen as a body promoting bogus treatments, chiropractors might seek to protect themselves by disassociating themselves from it. The BCA's public reputation is thus important to its members, and important for it if it wants to retain the support of its members.

The real question, for me, isn't whether a journalist writing for a general readership is capable of attacking the reputation of a membership organisation among its members. It's whether in principle such an organisation should be permitted to sue for libel. But that is probably a matter Parliament rather than the courts to decide.

There is a strong and obvious public interest in this case. Singh has found himself, almost by accident, cast as a champion of free speech and evidence-based medicine. He sees this as an "in-between-books project", and has cleared his diary (and, it seems, put off embarking on another book) until the matter is sorted. "I think this is an excellent use of my time." He also asserts that he is not deluded

If I ever get to the point of becoming blinkered and quixotic, then I know that these same friends and wise folk will tell me that I am being crazy. At that point I will be ready to back down and settle the case.

In a strictly non-legal sense, spinning things out for as long as possible, even with little prospect of ultimate success, may be the best strategy. If the case drags on for years in the ECHR, the law of libel might be reformed or Eady might even retire. The BCA might lose its stomach for the fight (its most recent statement [pdf] was suprisingly conciliatory).

I still think that the Heresiarch manoeuvre may one day need to be taken out of the bottom drawer. As Singh seems to acknowledge, this is a high-stakes gamble, and the dice are loaded against him. In the court of public opinion, though, he has already won: the case has ensured that the claims made by chiropractors have been subjected to new scrutiny, as has the creeping official acceptance of alternative medicine; and the parlous condition of the English libel laws has once again been highlighted. The grassroots campaign which has sprung up to support him is a hopeful sign for the future, and demonstrates once more the positive potential of blogging and social networking to move opinion, perhaps even to effect change. If Simon ultimately has to settle for that, he will still achieved great things.