In contrast to the preliminary hearing of the British Chiropractic Association v Simon Singh back in May, a good time was had by all of us in the public gallery at today’s hearing at the Royal Courts of Justice. All the more so because, given the illiberal judicial decisions made thus far in the case, there’d been a cloud of pessimism hanging over us at the start of the proceedings. We didn’t really expect it to go our way.
If we were surprised that nobody from the other side had turned up to the hearing, our surprise was short-lived. It took about a minute from entering the courtroom for the judge to tell us that he’d decided to allow a full appeal. This is catastrophic news for the BCA, who would have had advance notice of it. They probably didn’t feel like turning up and who can blame them?
I hope that all those defenders of quackery who’ve been spreading nonsense about this case will now do what they’ve been desperately trying to make their critics do and shut the fuck up! That so many don’t bother to research the facts before posting erroneous accounts all over the web about what happened in a court of law is irresponsible — nasty, in fact — and it gets wearisome having to constantly correct that misinformation.
In the feverish imagination of some of these people, this is what has happened: The BCA sued Simon Singh and won. That’s it. A lot of them seem to have the idea that the BCA’s “victory” at the preliminary hearing in front of Mr Justice Eady meant they’d effectively won the libel case against Simon Singh. No doubt the BCA’s first triumphalist press release, in which they claimed to have been “vindicated”, has something to do with it. (Compare that press release to their terse comment after today’s hearing. Sweet! (Edit: looks like they’ve removed it now. I wonder why?)
To give a couple of examples: Simon “was found against in the action brought against him…because his comments were defamatory and libelous. They were not an expression of opinion, but a statement of fact that was untrue and which he refused to withdraw.” This appeared as a comment on Zeno’s blog. Then there was the preposterous claim made by Lady Medea that, “a certain doctor who was taken to court by the chiropractors has lost his case because in the opinion of the Judge, they are not bogus which means they are deliberately setting out to defraud the public”. Much as one might relish the thought of Mr Justice Eady launching an erudite defence of the use of chiropractic to treat infant bedwetting, it didn’t happen, obviously, because His Lordship wasn’t there to give an opinion on whether chiropractic is bogus or not!
I’ve seen countless similarly daft comments in the last five months. In fact, all that has happened so far is that at a preliminary hearing held to get a ruling on the meaning of the words complained of prior to the full trial and thereby identify what Simon would exactly have to defend, Eady decided, firstly, that the allegations in Simon’s article to which the BCA objected (that there was “not a jot of evidence” that chiropractic is an effective treatment for asthma, colic and bedwetting and that the BCA was “happily promoting bogus treatments”) were presented as a statement of fact; secondly, that “happily promoting bogus treatments” implies deliberate dishonesty on the part of the BCA and that — bizarrely — Simon had to provide evidence for the allegation (which he had neither made nor intended to imply) that the BCA were deliberately promoting treatments they knew to be false.
This placed Simon in a position that was pretty much untenable. As he puts it,
…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.
Mr Justice Eady, having delivered the disastrous ruling, promptly rejected an application for permission to appeal against his decision. A second application to the Court of Appeal in July was also turned down flat, which was why nobody was particularly optimistic that today’s third application to an English court would be successful. But we knew that Simon had to “exhaust all domestic remedies”, as Jack of Kent puts it, before he could take his case to the European Court of Human Rights.
However, Lord Justice Laws — said to be one of the “savviest” High Court judges on human rights issues — not only granted the application but he was much more emphatic about it than he needed to be, apparently. He explained his decision at some length using polite legalese but the message was clear: Eady had cocked up. He’d “arguably” conflated two issues, said the judge. The article held “no suggestion that it has been motivated by malice”. He also said something intelligent and articulate about the right to reputation as opposed to freedom of speech and how Eady’s decision had weighed disproportionately in favour of the former. Simon was given permission for a full appeal i.e. both on the meaning determined by Eady and on his judgement that it was a statement of fact.
The appeal hearing is likely to be six months away and the BCA should be crapping themselves. If Simon Singh wins the appeal it’s likely to cost them a serious amount of money, so I’m told.
There surely can be no doubt now that the BCA regret ever bringing this action and some quacks are still worrying their little brains over why in the name of sanity the BCA ever did so, instead of accepting the Guardian‘s offer of a 500-word response to Simon’s article. As one comment spotted on a private forum recently said, “if the BCA had issued a press release with some research and a rebuttal, this would be yesterday’s chip paper. However they started hitting the hornets’ nest with sharpened sticks by taking out a libel case, and like McDonalds they have won, but at what cost?”
Yeah, I know, another one who thinks the BCA have won. How sadly delusional. Maybe today’s decision will enlighten them. But what is really sad is their apparent ignorance — an ignorance shared by many other quackish commentators, it seems — of probably the best bit of this whole debacle, which is that the BCA claimed there was a plethora of evidence in support of their claims, took some 15 months to produce it only to see it completely demolished, in the opinion of British Medical Journal editor, Fiona Godlee, as well as numerous other suitably qualified people. If they’d included that ‘evidence’ in any response appearing in the Guardian, it would have been demolished a lot quicker. As things stand, the BCA are now faced with the prospect of possibly going to full trial one day, not only with the burden of proof that they acted dishonestly having been lifted from Simon’s shoulders but also knowing their so-called “evidence” has already been publicly demolished by an expert. Yep, they’re crapping themselves. (But no doubt a bit of spinal adjustment will sort that problem out.)
With hindsight, the best thing the BCA could have done in response to Simon’s article is nothing. At least, nothing public. In private it should have hastened to advise its members to remove any unsupportable claims made on their websites and made sure any promotional material of its own didn’t tell outright lies. Instead it tried to teach Simon Singh — and anyone else who might be thinking of publicly challenging what they they know to be scientifically unsupportable claims — a lesson: “Put up and shut up. We can say what we like and don’t you dare say we shouldn’t.” As the BBC reporter said on Newsnight last night,
Simon Singh is being sued by the BCA for having the temerity to question in print whether the practice is the cure-all it is claimed. He faces financial ruin.
The Newsnight reporter was at the launch meeting of Westminster Skeptics last night, where Ben Goldacre confirmed that, indeed, the only thing unscrupulous quacks have to say to anyone who dares to publicly criticise them is, “Just shut up!” And they use this country’s ludicrous libel laws to make sure we do. At the same meeting, Simon Singh pointed out the cost of a typical libel trial in England was over 100 times more than anywhere else in Europe. In the USA they are having to forge new legislation to limit the impact of England’s libel laws in their country. Most people simply don’t have the resources to defend what they have written and end up apologising and backing down even if, to the best of their knowledge, what they have written is true and even if it is arguably in the public interest, as all health-related matters are.
Also, at the meeting was Nick Cohen of the Observer who assured us that nobody was arguing was for free rein to say what they like. What is needed is an American-style libel law where if something “totally unwarranted” is said about somone, they can still sue. He added:
We are the country that invented freedom of speech, yet we don’t have it in our own land…Everybody comes to London to sue for libel. You can’t move in the High Court without bumping into Russian oligarch or a Saudi petrol billionaire.
Well, it’s getting increasingly hard to move anywhere without bumping into a supporter of Simon Singh. His campaign has been spectacularly successful in a number of ways: it’s raised awareness of just what chiropractic is and what it isn’t in a way that the BCA couldn’t have imagined in their worst nightmares; it’s resulting in a groundswell of opposition to the libel laws from people who’ve never given them a second thought before; and, it has raised awareness of just how bitterly opposed those who happily promote bogus treatments are to being challenged.
Not one promoter of alternative medicine, so far as I’m aware, has come out and stated publicly that it really isn’t OK to make claims about health-related therapies that are not backed up by good scientific evidence and that in a free society people should be question these claims publicly without fear of being forced to either shut up or face financial ruin. All I’ve seen them do is spread falsehoods, make petulant, mendacious comments on skeptic blogs and generally try to get anyone who dares to point out either the lack of scientific evidence or the biological implausibility of their claims to just shut up.
Shame on them.
Urgent update 15.10.09
See Jack of Kent for the latest “shocking and serious (and indeed defamatory) accusation”:
BCA now alleging malice by Simon Singh
Related posts by other bloggers:
I’m sure plenty will be appearing over the next few days but in the meantime, for an explanation of the legal stuff see Jack of Kent and if you just want a concise (and hilarious) explanation of what happened in court, see Crispian Jago’s blog.
Related posts by Skepticat:
BCA v Singh Pt 2: The nerds are revolting