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'The Ugly Truth'

by Tracey Brown, director of Sense About Science

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Measuring government transparency

New framework rates use of evidence

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Simon Singh's case

By Simon Singh

simonsingh

Update: On 15th April 2010, the British Chiropractic Association dropped its libel case with Simon Singh. Read his comments here.

Simon Singh completed a BSc in physics and a PhD in particle physics at Cambridge University before becoming a director and producer in the BBC science department. He worked on Tomorrow's World and Horizon and won a BAFTA for directing a documentary on the subject of Fermat's Last Theorem. After leaving the BBC, he wrote a series of bestselling popular science books, such as "Fermat's Last Theorem", "The Code Book" and "Big Bang". He has also presented several radio and TV programmes, and his educational initiatives include the Enigma Project and the Undergraduate Ambassadors Scheme. In 2003 he received an MBE for services to science education and communication.

I have remained fairly silent over the last year, ever since I received a letter from the British Chiropractic Association threatening legal action. This essay is an attempt to explain what has been happening over the last twelve months, why I have decided to apply to the Court of Appeal and what might happen in the future. I hope that bits of it are interesting, but in general this is my straightforward attempt to clarify a few points.

Back in 2006, I investigated the way in which homeopaths were recklessly offering homeopathic remedies as protection against malaria. This triggered a deeper interest in alternative therapies and eventually led to the publication of "Trick or Treatment?", which I co-authored with Edzard Ernst, the world's first professor of complementary medicine. In hindsight, it seems ironic that this book was subtitled "Alternative Medicine on Trial".

When the book was published in April 2008, I wrote an article for The Guardian which focussed on chiropractic. The article also coincided with Chiropractic Awareness Week, which was organised by the British Chiropractic Association. The article discussed history of chiropractic and the founder's belief that manipulating the spine could treat 95% of all diseases, because disease was supposedly caused by blockages in the flow of innate energy along the spine and through the nervous system. Many modern chiropractors have moved away from this fanciful model of disease and treatment, and instead have focussed on treating back problems. However, I pointed out that some chiropractors still believe that spinal manipulation can treat problems not related to the back.

In particular, I wrote about the likely risks of chiropractic treatment and whether or not there is any evidence that it is effective for various childhood conditions, including asthma. I thought it was quite an interesting, important and well-researched article, but unfortunately the British Chiropractic Association (BCA) claimed I had defamed their reputation and threatened to sue me for libel.

Initially The Guardian newspaper tried its best to settle the matter out of court by making what seemed to be a very generous offer. There was an opportunity for the BCA to write a 500 word response to my article to be published in The Guardian, allowing the BCA to present its evidence. There was also the offer of a clarification in the "Corrections and Clarifications" column, which would have pointed out: "The British Chiropractic have told us they have substantial evidence supporting the claim they make on their website that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying. (Beware the spinal trap, page 26, April 19)."

Unfortunately, the BCA rejected these offers and moreover made it absolutely clear that it was not suing The Guardian, but rather it was suing me personally. At this point The Guardian newspaper chose to step back.

To a large extent I understand The Guardian's position and its decision. At the time it was involved in several other legal battles and it felt that it could not justify the financial risk of becoming embroiled in defending one more libel action. If The Guardian had stood by me and shared the burden then it would lose whatever the outcome. For example, if we had fought the case and won then we would still be out of pocket (perhaps by as much as £50,000) as it would be unlikely that we would recover all our costs. On the other hand, if we lost the case then we could lose £500,000 or more. In other words, a good outcome would be bad, and a bad outcome would be catastrophically bad.

This highlights the dreadful problem in the English libel system. Even large publishers are intimidated by the huge expense of fighting a legal battle. This means that articles that should be defended are dropped, and articles that should be written are shelved before they are even published because of potential libel action.

I would be lying if I said that I was not disappointed by The Guardian's decision, but I do appreciate that it is hard for it to justify becoming embroiled in a costly legal fight when first it is not the subject of the legal action and second it is having to cut costs and lay off journalists in a harsh economic climate. The Guardian has, in the past, stood up to many libel threats and has lobbied hard for reform of the libel laws. And Guardian journalists have expressed their support for my position. However, the sad conclusion is that major publishers are terrified of the English libel laws.

So, why did I fight on alone?

First of all - and I must stress this - I received excellent legal advice, initially from Robert Dougans, a solicitor at Bryan Cave, and William McCormick, a barrister at Ely Place, and later from Adrienne Page, one the country's foremost libel silks. Our conclusion and the opinion of outsiders was that we had a valid defence and stood a good chance of winning the case.

Moreover, the article was about an issue of public interest, namely childhood health and the effectiveness of particular treatments for some serious conditions. Hence, I was not prepared to apologise for an article that I still believed was important for parents to read, and which I believed was accurate and legally defensible.

The final reason for fighting on was that I knew that I was able to devote the time, money and energy required for a long legal battle. Most journalists would have been forced to back down and settle under the pressure of a libel threat, so it seemed that I had a duty to fight on in light of my privileged position. I knew when started, and I still know now, that this legal fight will be horrendously expensive and draining, but it will not destroy me.

As well as having the financial resources to fight this case, I also knew that I could rely on unwavering support from my wife, Edzard Ernst, science journalists and the science community, including skeptics and bloggers

Preparing for Trial

 

The second half of 2008 and the start of 2009 was devoted to preparing various legal documents, including a detailed defence. This involved looking at the research on chiropractic all over again - my conclusion remains that there is a lack of evidence supporting the use of chiropractic for treating various childhood conditions.

During this period a Facebook group was established by supporters (For Simon Singh and Free Speech - Against the BCA Libel Claim). The postings were a great morale booster, and it now has over 5,000 members who follow the case.

Various bloggers also commented on the case, most notably Jack of Kent, who brought a great deal of legal expertise and insight to his analysis. If you want to catch up with what happened, then Jack of Kent's website and the Facebook group both contain a wealth of resources.

As well as blogging about my case, there was also growing coverage of other cases where science and the law were clashing head on. For example, in the summer of 2008 the "New Zealand Medical Journal" received a heavy handed letter from chiropractors regarding an article written by Professor David Colquhoun. The editor, Frank Frizelle, stood up for his journal and eventually the chiropractors backed down.

More recently there is the case of Dr Peter Wilmshurst, whose is being sued for libel and who is being supported by HealthWatch: "He is now being sued for libel and slander by NMT Medical, based in the US, who are the manufacturers of a device (STARFlex). He was one of two principal co-investigators in a clinical trial to test whether using the STARFlex device to close a hole between the right and left atriums of the heart (patent foramen ovale) would reduce the incidence of migraine, particularly migraine with aura. The published results of the trial were negative. Dr Wilmshurst, who supported the idea that closing such shunts might affect migraine, later put forward several ideas why the results were negative, with which the company disagreed. He is now being sued in a British court."

HealthWatch is currently raising money to support Dr Wilmshurst, who has a track record for standing up for good medicine: "Dr Peter Wilmshurst is a previous recipient of the HealthWatch Award (in 2003) for his courage in challenging misconduct in academic medical research."

The Recent Disastrous Ruling

On 7 May 2009, there was a preliminary hearing at the Royal Courts of Justice. The idea was to have a ruling on meaning prior to the full trial, which would identify what I would have to defend in due course.

The meaning of my article is to some extent open to interpretation. I intended the article only to say that certain chiropractic treatments are not backed by any reliable evidence and that this was "comment". The classification of "comment" is important, as the law then requires only that the statement is broadly reasonable. We were optimistic that we would receive our preferred ruling on meaning, including a classification of comment, particularly as the article appeared in the comment pages of The Guardian.

There is a spectrum along which Sir David Eady, the presiding judge, could have given his ruling, but unfortunately for me he gave a ruling that was at the most extremely negative end of this spectrum. First, he decided that my article was fact (as opposed to comment). Second, he said that my article contained "the plainest allegation of dishonesty and indeed it accuses them (the BCA) of thoroughly disreputable conduct."

In other words, according to this ruling, my article accuses the British Chiropractic Association of deliberate dishonesty in promoting fake treatments as a matter of fact. This is unfortunate for various reasons.

First, although I feel that chiropractors are deluded and reckless, I was not suggesting that they are dishonest.

Second, it is very hard to defend such a meaning - showing that a treatment is not backed by evidence is one thing, but showing what was inside the mind of an association is quite another.

Also, the burden of proof is reversed in libel cases, which means I have to prove the accuracy of my statement, as opposed to the BCA proving that I am wrong, which in turn means that I am guilty until proven innocent.

At this point, faced with such an adverse ruling on meaning, I have three choices.  

  1. Go to trial. This option is unpleasant, as the ruling on meaning is so extreme. A trial would be very expensive, I could lose and the total bill would be £500,000.
  2. Settle now out of court. This option is almost as unpleasant, as I would have to offer an apology for an article that I still think is reasonable and important according to its intended and obvious meaning. I would also be landed for a bill of over £100,000, which would largely be the legal costs of the British Chiropractic Association.
  3. Go to the Court of Appeal. This will incur additional costs, and it is a long shot because the Court of Appeal tends not to overturn rulings on meanings. It is highly likely the Court would dismiss my application without hearing it.

I have just said that my application to the Court of Appeal will probably fail, but applying to the Court of Appeal remains the least worst option, which is why I have decide to choose this option. Let me explain further why I believe it is a path worth pursuing.

I would argue at the Court of Appeal that Mr Justice Eady did not pay enough attention to the context of the article. Elsewhere in the article I suggest that some chiropractors have ideas above their station, wacky ideas and are fundamentalists, which implies a community that has deluded and eccentric elements, rather than dishonesty.

Even if the English Court of Appeal rejects my application and will not revisit the ruling on meaning then I can take the next step and lodge an appeal at the European Court of Human Rights. This could be the place that ultimately decides on the meaning of the article.

Why continue the fight?

I still believe that my article was reasonable, fair and important in terms of informing parents about the lack of evidence relating to chiropractic treatment for some childhood conditions. While there is still the slightest chance of defending my rights as a journalist then I am determined to continue with this legal battle. Indeed, I look forward to the opportunity to discuss the evidence for chiropractic in court.

More importantly, while this case is alive there is an opportunity to raise a whole series of arguably more important issues, particularly the appalling state of English libel laws.

Obviously, I have a slightly biased view of the English libel system, because I am currently at the wrong end of an accusation of libel. Nevertheless, there are so many obvious failings with the English libel laws that I doubt that very many people would disagree with what I am about to say.

First of all, it is far too easy for anyone to launch a libel action and thereafter the burden of proof is on the defendant. As the lawyer David Allen Green wrote in New Scientist: "Once the claimant has established they have a reputation in England, and that there is a defamatory statement, they have an automatic right to bring legal proceedings without having to show any damage has been suffered. It then falls to the unfortunate defendant to prove before the court, often at considerable expense, that the statement was defensible. This is the notorious "reverse burden of proof" which, for many, discredits English libel law."

Second, the costs of English libel cases are huge. This has the effect of turning the legal system into a high stakes poker game in which having good cards is not enough if the other person can bluff, bully and put large amounts of money on the table. Going to trial can cost up to £1,000,000, and these legal costs could be 100 times greater than any damages that might be at stake.

Oddly, there is no legal aid for libel cases, so if a corporation threatens an individual journalist or a local paper with a libel suit then the defendant is effectively forced to apologise, pay damages and back down, even if the article could in theory be defended.

The situation was made worse when "no win, no fee" arrangements were brought into libel cases. This was supposed to help the David against the Goliath. However, Goliath can also adopt a "no win, no fee" approach, which can double the costs that David will eventually have to pay if he loses. This is currently happening in my case.

How could English libel laws be improved?

English libel law is notorious around the world, and the reason becomes obvious if we compare costs in different countries. Alan Rusbridger, writing in the Guardian earlier this year, pointed out: "Cost is becoming the key issue. A recent Oxford University survey demonstrated how we measure up. It found that the costs of defending defamation actions in England and Wales were - by miles - the highest in Europe. The survey found that fighting actions in London cost 140 times the average of the rest of Europe. You read that right: 140 times. We were four times more expensive than the second in the league table - Ireland. And Ireland was nearly 10 times more expensive than third-placed Italy.

What makes all of this even more shameful is that our ridiculous costs and strict libel laws can be used to attack journalists elsewhere in the world. Nick Cohen, who has campaigned extensively on this matter, recently wrote in the Observer: "For years, I have wondered what it will take to turn a neglected scandal into a public outrage. After Eady ordered the censorship of a New York author's book on terrorism, which had not even been published in Britain, the US Congress began drafting a law which will guarantee that English libel judgments have no validity in America. The United Nations has condemned the judges' practice of welcoming rich libel tourists from across the world to their hospitable courts and urged Britain to allow free speech on matters of public interest."

As a journalist, I have always been aware of the libel laws, but I don't think I ever fully appreciated the chilling effect they have on journalism - important articles are withdrawn and other stories are simply not commissioned because of the fear of libel. Perhaps it is only recently that this has affected scientists and science journalists, so perhaps this is why I am only now becoming embroiled in the debate over the libel laws.

I should stress that I am not arguing that the libel laws should be abandoned, but it is clear that the costs should be reduced, the process should be accelerated, the burden of proof should be reversed and it should be harder to launch a libel action in the first place. Possible improvements would be rapid enforced mediation or a "libel small claims court model", as either approach would reduce the disproportionate cost of libel cases compared to the potential damages.

It is just possible that now is the time for major reform. The Culture Media and Sport Select Committee is currently reviewing libel laws and if my case can help highlight he problems inherent in the system then I am happy to keep it going for as long as possible.

I hope that everybody in Britain who cares about good journalism, science and freedom of speech will sign the statement of support and lobby for a change in the law. If nothing changes and if I lose my case, then it will only further discourage other journalists from writing articles that criticise individuals and organisations in relation to matters of public interest.

Fighting Fund

I have been overwhelmed by offers of financial support. Hundreds of people have got in touch and so far I have been confused about what to do.

The reason that I have been able to fight this case is that I have the financial resources to do so. Three international bestsellers have provided a very comfortable cushion for trouble indirectly caused by 'Trick or Treatment?'. If I lose, then it will be a major financial blow, but my wife and I will be able to cope. Hence, I have asked myself if supporters should donate money to a more need cause, one that this will also help the cause of free speech and science journalism. I currently have two suggestions.

First, Sense About Science deserves your support, because it will be running the Keep Libel Laws Out of Science Campaign, which will be highlighting issues surrounding my case and English libel more generally. Campaigning requires a great deal of effort, time and resources, and additional financial support will help the campaign to have a major influence.

Second, and this is a longer term goal, I am working with others to establish a fighting fund that will help the next science journalist who faces a libel action to get proper legal advice and to be in a position to defend against the action. Sense About Science needs donations now, but this fighting fund will require donations in the future.  

And finally...

Lots of people have asked me how I have remained so cheerful during the libel case. Is the smiling a sign of contentment or is it maniacal?

Fortunately there have been plenty of things to keep me smiling. The top five, in no particular order, are:  

  1. Facebook Group The messages of support have been a daily tonic. One of my favourite postings was via Quentin Cooper, who pointed out that an anagram of chiropractic is "Critic - oh, crap!"
  2. Jack of Kent, Nick Cohen, Private Eye and every other blogger, journalist and publication that has covered my case has cheered me up. Also, thanks to everyone who has followed the coverage online and offered advice, insight, support or humour. My favourite comment was from Dustmite: “I think it was Alan Coren (admittedly not a scientist) who quipped that Chiropractic therapy was equivalent to thumping the side of faulty television as remedy a defective picture."
  3. The Penderel's Oak meeting on May 18 was a memorably evening, because 250 people came to show their support. I am particularly grateful to Chris French, Nick Cohen, Brian Cox, Evan Harris and Dave Gorman, who all spoke out in favour of my article and against the state of English libel laws.
  4. I was delighted by the Advertising Standards Authority's decision to uphold a complaint against an advert that promoted chiropractic for the treatment of colic - this was one of the childhood conditions that I had written about in my article.
  5. It is perhaps appropriate that a libel suit brought against an article written by me during Chiropractic Awareness Week in 2008 has inadvertently led to many others working hard to turn 2009 into Chiropractic Awareness Year.

And finally, finally...  

This was supposed to be just a quick 500 word summary, so I apologise for rambling. If there is one crucial point among the 3,500 words above, it is fact that the English libel system is open to abuse simply because the libel process is so horrendously expensive. The best way to illustrate this is with a bar chart from an Oxford University report published earlier this year. "A Comparative Study of Costs in Defamation Proceedings Across Europe" demonstrates that English libel laws are preposterously out of step with the rest of Europe.

 Oxford libel costs study 

 

When Frank Frizelle, the editor of the "New Zealand Medical Journal", was intimidated by chiropractors because of an article he published he responded with the line: "Let's hear your evidence not your legal muscle." Unfortunately, while the costs of English libel remain so extortionate, those with a large bank balance will always be tempted to enter into a legal fight rather than reasoned debate. Therefore, scientists and journalists will become increasingly reluctant to challenge organisations and individuals, and the public will never get to read the full story.