A battle won for free speech and science, but the war remains

I was wrong.

I know it doesn’t happen that often, but I’m forced to admit it. I was wrong. I predicted that Simon Singh would likely lose his appeal against an astonishing illiberal ruling on his libel case by Sir David Eady. Singh, as you may recall, is the British science writer who wrote a now infamous article about chiropractic, in particular, Singh labeled claims that chiropractic could treat colic, sleeping and feeding problems, ear infections, asthma, and prolonged crying as “bogus.” Specifically, he wrote that the British Chiropractic Association “happily promotes bogus therapies.” The BCA sued him for libel, claiming that this statement implies that they knowingly and dishonestly promote therapies that don’t work. Singh countered that such was not his intent; rather, his view is that they believe in these nonsensical (i.e., “bogus”) claims and that’s why they happily promote them. Unfortunately, based on a narrow, highly legalistic interpretation of the use of the word “bogus,” Judge Eady ruled in favor of the BCA, namely that Singh meant that the BCA was knowingly promoting false claims.

This ruling put Singh in a bad situation. As I’ve pointed out numerous times before, be it discussing Singh’s case or, for example, Holocaust denier David Irving’s libel suit against Holocaust historian Deborah Lipstadt, British libel laws are hopelessly biased in favor of the plaintiff. In practice, they in essence necessitate that the defendant prove that what he wrote was true, rather than putting the burden of proof on the plaintiff to prove that what was written was either false or written with a reckless disregard for the truth. Worse, it’s possible for a plaintiff to claim jurisdiction in the U.K. if even a single book or article is sold there or even if, as is true of any website, the article can be read by people in the U.K. The odds were seriously stacked against Singh, and the BCA was trying to portray Judge Eady’s ruling as being vindication of its woo.

Indeed, at the time, I pointed out that, if it were me, I’d probably have settled. Not only were the odds long against him, given Judge Eady’s ruling, but the expense of pursuing a defense against libel in the U.K. is incredibly onerous, far more expensive than most other European Union countries. The technical ruling on the meaning of the word “bogus” had painted Singh into a corner, and no one would have blamed Singh if he had decided to try to settle. Certainly I wouldn’t have. Fortuntely, Singh is made of far sterner stuff than I am. Despite the odds, despite the expense, he decided, in essence, to appeal for the right to appeal.

And he actually won:

A science writer has won the right to rely on the defence of fair comment in a libel action, in a landmark ruling at the Court of Appeal.

Simon Singh was accused of libel by the British Chiropractic Association over an article in the Guardian in 2008.

Dr Singh questioned the claims of some chiropractors over the treatment of certain childhood conditions.

The High Court had said the words were fact not opinion – meaning Dr Singh could not use the fair comment defence.

However, the Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley ruled High Court judge Mr Justice Eady had “erred in his approach” last May, and allowed Dr Singh’s appeal.

BBC News science correspondent Pallab Ghosh says that, had Justice Eady’s ruling stood, it would have made it difficult for any scientist or science journalist to question claims made by companies or organisations without opening themselves up to a libel action that would be hard to win.

This ruling, alas, is not the end of the road. In any reasonable legal system, the BCA’s claims would never have made it past a preliminary hearing. Instead, in the U.K., it has thus far cost £200,000 “just to define the meaning of a few words,” as Singh has put it.

It is very clear that the U.K.’s libel laws are in serious need of reform. As it stands now, they are far too easily abused in order to stifle legitimate criticism of cranks of all stripes. I’m glad to see that Singh has managed to win a battle. Unfortunately the war is far from over.