Simon Singh’s Bogus Journey

But this is a case which is one of The Lawyer’s Top 10 Litigation cases of 2010; the panel of the Court of Appeal will consist of the Lord Chief Justice, the Master of the Rolls, and Lord Justice Sedley; a petition mounted in response to the case was signed by over 20,000 people, including Nobel Prize Winners, the Poet Laureate, and the Astronomer Royal; and the legal reform campaign ignited by this case has so far resulted in a working group at the Ministry of Justice; and as an effect of all this, legislative reform is highly likely in the next parliament.

So in some ways this is just a normal case; but it is certainly one which is having exceptional consequences.   The case is that of British Chiropractic Association v Simon Singh and it is now perhaps the most notorious libel case since McLibel.

However, for someone coming to this case afresh, there is perhaps a puzzling question: why has this case, instead of any other, become the rallying point for libel reform?

As someone who has followed the case closely since its beginning, there appears to be four reasons to explain this outcome.

First, the facts of the case raise important issues for scientists and science writers about the relationship between free speech, libel, and public health. 

Simon Singh published an comment article in The Guardian in April 2008 where he attacked claims being made by the British Chiropractic Association for the use of chiropractic for certain children’s ailments such as asthma, colic, and frequent ear infections.  In particular, he disputed whether there was any evidence base for these treatments.  The British Chiropractic Association was, he said, “happily promoting bogus treatments”.

The British Chiropractic Association then sued Simon Singh personally for libel; they turned down the offer of a right of reply; and they did not, at that time, put forward their purported evidence base, which of course would have settled the matter in the eyes of any scientist. 

As this was an important issue about public health – the treatment of children’s ailments and the importance of evidence-based medicine – and as the underlying issue was the validity of the relevant scientific evidence, this seemed to many a singularly inappropriate way for libel law to be used. 

A science writer should be able to communicate his genuinely-held grave concerns about such things without fear of litigation.  And even two years later, it remains that the simple facts of the case are the main reason why there is so much support across the world for Simon Singh in this particular case.

This leads to the second factor for the prominence of this case: the role of the internet.  

Simon Singh is an internationally regarded science writer and communicator.  Awarded the MBE for science education, he has produced a number of books tackling the most difficult and complex topics – the Big Bang, Fermat’s Last Theorum, code breaking – in an accessible way for lay people.  He has a solid reputation for both scientific integrity and the effective popularisation of science.  He has a global fanbase, consisting mainly of those interested in science and, significantly, the technologically literate.

For almost a year after the claim form was issued, this case was not picked up by the mainstream media; but it was rapidly becoming notorious in the worldwide blogosphere.  

Many simply could not believe what was happening: that someone like Simon Singh could be sued and placed into a serious financial predicament for trenchant but (in their view) ultimately sensible criticism.  But it was not mere indignation: many also wanted to understand these seemingly weird English libel laws.  My own blog, which sought to explain libel law to those following Simon Singh’s case, started receiving thousands of hits a day.

As a result this case had an international audience – concerned and informed –anxiously following each step in this seemingly misconceived litigation.

And then, last May, came the third factor: the now infamous preliminary hearing.  The parties had agreed, undoubtedly for financial and procedural reasons, not to have a jury and to also have a preliminary ruling on meaning.  This would in turn determine which defence – fair comment or justification – would be required.

What Mr Justice Eady did next transformed the existing wide concerns of the international scientific and internet audience into sheer outrage.   He ruled that the meaning of the defamatory passage was that Singh was alleging as a fact that the British Chiropractic Association was being deliberately dishonest.   Singh would thereby have to justify his meaning by showing dishonesty in the corporate mind of the claimant.  This was not what (in my view) the article had said, and it certainly was not what Simon meant.

The ferocious reaction against this adverse and apparently illiberal ruling then propelled the case into the mainstream.  The Sense About Science charity launched a campaign to keep libel laws out of science, and their petition quickly racked up thousands of signatures.  Articles started to appear in the mainstream press; indeed, the newspapers saw this as a case with which to attack libel law generally, and to undermine Mr Justice Eady in particular.

This led to the fourth factor: the case became a symbol for any writer or publisher who has ever experienced libel chill.  The straightforward facts of the case, coupled with the attractive and inspiring example of Simon Singh himself, made it a proxy for anyone who had had an article spiked or mangled by in-house lawyers. 

Simon Singh now has a wide and growing coalition of support: scientists and science writers, journal editors and newspapers, free speech activists and supporters of evidence-based medicine.  The set back in the High Court required three attempts to get permission to appeal, which was ultimately granted in magisterial terms by Lord Justice Laws, who emphasised this was indeed a matter of genuine public interest and that Singh’s predicament as a defendant engaged Article 10 of the Convention.

Any case which becomes a cause célèbre does so in part because of certain contingencies.  It so happened that the defendant in this case was an internationally respected science writer with considerable support around the world.  And it just so happened that the High Court made a ruling in terms so seemingly illiberal and counter-intuitive that, at a stroke, it discredited English libel law to anyone who understood that the real issue was whether there was a valid evidence base for certain children’s treatments or not.

But contingencies aside: there is undoubtedly something wrong which requires a defendant in Simon Singh’s position to have to justify the “mind” of a corporation in the event of calling out on its promotion of certain treatments for children, for that is to ask the near-impossible of any libel defendant.

This has the makings of a highly-important appeal case: one which may significantly re-cast the balance between fair comment and justification for libel defendants facing corporate claimants.

However, regardless of whether Simon Singh succeeds in this appeal, or even at the eventual trial, the campaign for libel reform will continue.

Allen Green writes the Jack of Kent blog.