– Cracking the Spine of Libel

Several times this summer, science journalists in London have leaned over to me and said something along the lines of, “I was thinking of writing,” and gone on to describe an article that was going to be critical of someone. “But then,” the speaker would gloomily conclude, “I thought to myself, ‘Simon Singh,’ and I decided not to.”

Who is Simon Singh, and why is his name giving people the jitters?

First things first. Singh is a well-known writer, journalist and television producer. He received a doctorate from Cambridge University for work in experimental particle physics, and he’s the author of several best-selling popular-science books, including “Fermat’s Last Theorem” and “Big Bang.” Last year, he published his most recent book, “Trick or Treatment: Alternative Medicine on Trial,” which he wrote in collaboration with the world’s first professor of complementary medicine, Edzard Ernst. Their book is an accessible and rigorous investigation of the scientific evidence for or against the claims made about various forms of “alternative medicine,” from acupuncture to herbal remedies.

That, briefly, is the who of Singh.

Now the why. The reason his name is giving everyone the jitters is that he’s being sued for libel by the British Chiropractic Association (BCA) for an article he published in The Guardian newspaper last year. In the article, Singh argued that there is no evidence for some of the claims that the BCA makes about the health benefits of visiting a chiropractor.

He wrote, “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.”

The BCA asked for a retraction and an apology. Singh refused. The Guardian offered the BCA the opportunity to print a clarification and write a response, so they could lay out evidence supporting their claims. The BCA refused. The libel case is the result. (Note that the case is peculiar in that it has been brought against Singh personally, not against the newspaper that published the article, as is more usual.)

The case at present hinges on the meaning of “bogus.” In a preliminary hearing, the judge ruled that bogus means deliberately dishonest, rather than a lack of evidence; he also ruled that Singh had written a statement of fact, not opinion, something that will make the case much harder to defend. (The ruling encouraged me to look up “bogus”; according to my dictionary, the word originally meant a machine for making counterfeit money.)

Singh is appealing the ruling; the next hearing takes place in a few weeks’ time. Meanwhile, the case has become something of a cause célèbre: petitions to reform the libel laws have been sent to parliament, and famous people have pledged their support. And in the pages of one of Britain’s top medical journals, the vice president of the BCA, Richard Brown, and Singh’s coauthor on the book, Edzard Ernst, have jousted over the evidence that chiropractic can help the ailments of infants.

But the Singh case is not the only example of English libel laws entering into a question of scientific evidence. A year ago, for instance, Matthias Rath, a vitamins tycoon who campaigns for the use of vitamin supplements to treat HIV and AIDS in place of conventional drugs like anti-retrovirals, abandoned a libel suit against The Guardian and the writer Ben Goldacre for an article critical of Rath’s activities.

The libel laws of England and Wales are notorious. Libel cases cost little to bring — you can make a no-win-no-fee arrangement with your lawyer — but a lot to defend. According to a recent report, the average cost of defending a libel case in England and Wales is 140 times greater than it is in most of the rest of Europe.

Moreover, English libel law favors the claimant — the person who says he or she has been defamed — in several ways. For one, the range of defenses is more limited than in other jurisdictions. For another, in English libel cases, the burden of proof is effectively on the defendant. In other words, the defamatory statement is presumed to be false unless the defendant can prove it is true.

All this is a problem for journalists generally, not just for those writing about science, and not just for those in Britain. English libel law can have a global reach: there have been several high-profile examples of foreign journalists being sued for libel in the English courts over statements published on foreign websites or by foreign publishers. This has led to worries among some members of parliament that, in the context of libel, “the UK courts have become an object of ridicule,” and legislators in the United States have begun pressing their British colleagues for reform.

Arguably, however, English libel laws create particular difficulties for science journalists. Science, after all, is about evaluating evidence. Science journalism, sometimes, requires pointing out when evidence is weak or absent. This is especially important in the context of medicine and health, where misinformation or lack of information can be deadly. For example, if you have HIV, taking vitamins instead of anti-retrovirals can significantly hasten your death.

The problem the libel laws create is not so much that critical stories can’t be written, but that they won’t be. As the conversations I had this summer show, for many journalists and their employers the potential for a libel case is a powerful deterrent to criticism: the pieces aren’t worth the hassle. Singh has commented that “if I successfully defend my article, I will have had to have put my career on hold for probably two years, and it will cost me perhaps £25,000 [about $41,500] because I am unlikely to recover all my costs. And if I lose my case, then it will cost me roughly £500,000 [$800,000]. Fighting and winning is bad enough; fighting and losing is catastrophic.”

Most writers won’t take the risk. And who can blame them?

Notes:

The original Singh article has been removed from The Guardian’s website. But it can be read here.

For the British Chiropractic’s account of what has happened, see the BCA statement from June 17, 2009, which can be read here.

Singh’s account of events can be read here and here.

For the meaning of “bogus” in the Simon Singh case, go here; for the text of the ruling, go here.

For evidence that the BCA says supports its claims, see Brown, R. 2009. “Chiropractors: clarifying the issues.” BMJ 339: b2782 (it can be read here); for a vigorous rebuttal, see Ernst, E. 2009. “Chiropractic for paediatric conditions: substantial evidence?” BMJ 339: b2766 (it can be read here).

For Ben Goldacre being sued for libel by Matthias Rath, go here. For a further account of the Rath story go here.

The study showing the costs of defending libel cases in England and Wales can be read here. For some of the problems with the libel laws in England and Wales, see Harris, E. 2009. “Science in court.” BMJ 338: b2254.

For some of the libel cases involving foreigners that have been brought under English law, see this.

For members of parliament worrying that the UK has become an “object of ridicule” see Q955 here.

For American legislators applying pressure to parliament, go here.

For Singh’s account of what the case will cost him, see this.

The people I spoke to about their self-censorship didn’t want to be quoted. But one Australian journalist describes his frustration at the watering-down of an article he’d written that was critical of homeopathy.

For this column, I interviewed Simon Singh, who is personally known to me; I also spoke to Jonathan Haydn-Williams of the London-based law firm Goodman Derrick LLP about English libel law. Many thanks to them both. I attempted to reach someone at the British Chiropractic Association, but no one was available. Many thanks also to Sofia Castello y Tickell, Dan Haydon and Jonathan Swire for insights, comments and suggestions.

Olivia Judson, New York Times

__________

Full article: http://judson.blogs.nytimes.com/2009/09/15/cracking-the-spine-of-libel/

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