Up yours, BCA!

This morning the British Chiropractic Association, whose members happily promote bogus treatments for which there is not a jot of evidence, got what they deserved from the Court of Appeal: a judgment against them that was about as emphatic as it could be and it was delivered by England’s two most senior judges, the Lord Chief Justice of England and the Master of the Rolls, together with Lord Justice Sedley who is one of the most respected judges on the Court of Appeal.

Back in April 2008, Simon wrote a piece for the Guardian’s ‘Comment is Free’ colunmn entitled Beware the Spinal Tap. It appeared during the BCA’s ‘Chiropractic Awareness Week’. Here’s the relevant extract:

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.

I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.

The BCA objected to the first paragraph above, which they interpreted as an accusation of deliberate dishonesty on their part. They (still) describe it as “a serious attack on the reputation on the BCA”. Despite claiming to have a “plethora of evidence” for the claims made, they turned down the Guardian’s very reasonable offer of a right of reply and decided to sue Simon instead — a decision that the Lord Chief Justice himself said he was “baffled” by. Responding today, the BCA said they turned down the Guardian’s offer because it fell short of their expectations, “not least because the original libel would have remained uncorrected”.

But…but…surely if they had a plethora of evidence, all they needed to do was write a nice little piece pointing to it and that would have given the lie to Simon’s allegation and the BCA’s reputation would remain intact? Mais non! Apparently Simon Singh is so revered and the effect of anything he writes is so powerful that he just had to withdraw his comments and apologise — nothing less would satisfy the fragile egos in charge of the BCA. And as Simon Singh was not only right about the lack of evidence (the so-called ‘plethora’ was swiftly demolished outside the courtroom) but is also comparatively solvent, he wasn’t about to do what most people would be forced to do in such circumstances and bend right over for the BCA.

Last May, I attended the preliminary hearing of the BCA v Dr Simon Singh, held to determine the meaning of the words used in Simon’s article. There I heard Simon’s lawyers argue that the paragraph the BCA didn’t like was an opinion — a comment — rather than a statement of fact and that this was clear from the context. Mr Justice Eady dismissed this argument out of hand. He’d apparently already made up his mind and prepared his judgement before even entering the courtroom and his judgment was that the passage was a statement of fact and that the words Simon used imply a deliberate intention to deceive. Eady placed the onus on Simon to prove that the BCA were being deliberately dishonest, should the case go to full trial. In other words, the burden of proof for something he didn’t claim or intend to imply in the first place was placed on the defendant.

This was, as Jack of Kent put it, an astonishingly illiberal ruling that seemed to designed to intimidate anybody from standing up to the threat of libel even when they know they are in the right, as Simon did. The BCA said in their statement today,

It never was, and it is still not our intention, to curb freedom of speech, whether in the field of scientific research or elsewhere, although sadly we recognise that this is how it has been portrayed by Dr. Singh and his supporters.

…which is probably one of the most transparently dishonest statements they have made during the course of this whole debacle. That’s my opinion — not a statement of fact — and, unfortunately for the BCA, it’s an opinion that their Lordships would seem to share. In their judgment today, they say,

It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ….By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh’s contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. (paras 11 & 12)

The judges ruled that the passage was not, after all, a statement of fact but an opinion.

The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. (para 23)

Love it!

On the issue of the meaning of the offending words, they ruled that the use of the word ‘bogus’ is “explicitly supported by the next paragraph of the article”. In other words, it is clear from the context what Simon meant by it, which is what Simon’s lawyers argued in the first place. And the judges reject the suggestion that ‘happily’ means ‘knowingly’:

…we respectfully doubt whether the judge was justified in any event in attributing to the word any significance beyond, say, “blithely”. The natural meaning of the passage, in other words, was not that the BCA was promoting what it knew to be bogus treatments but that it was promoting what Dr Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy…(para 30)

The full judgment can be read here and, if you can understand it all, you’re either a lawyer or just a lot cleverer than I am but here’s my favourite bit:

We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel action over a scientific controversy, Underwager v Salter 22 Fed. 3d 730 (1994):

“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.” (para 34)

Amen.

It’s a chilling thought that if almost anyone else had written that article, they would have had no option but to give in to the intimidation and withdraw it. How many of us can afford to take the financial risk of defending a libel action under England’s draconian libel laws? (Cue to rush off and sign the petition for libel reform if you haven’t already.)

Simon could’ve given up after Eady’s ruling but didn’t. Further opportunities to give up were afforded when two of his three applications to appeal against Eady’s decision were refused. Having followed the case closely, I can’t help but notice just how easy our ‘justice system’ — for want of a better term — makes it for people to give up fighting for justice and how difficult it is to continue. Having taken two years out of the defendant’s life and with some £200,000 in costs run up since the launch of the litigation, this case is far from over but, as Simon said at the press conference after the hearing, he now “relishes” the prospect of seeing the BCA in court to defend what he actually wrote rather than what they wrongly inferred from it.

And where are the BCA at now? If you can’t be bothered to read their weaselly statement, I’ll sum it up for you in three words:

Their lawyers suck.

(I should stress that’s the BCA’s opinion. Personally, I wouldn’t dream of publicly criticising libel lawyers.) Will they risk more of their members’ money by continuing this debacle, which — irony of ironies — has served only to damage their reputation while enhancing that of Simon Singh, or will they throw in the towel?

I don’t care. Whatever happens now, the moral victory is Simon’s and quite right too.

Jack of Kent’s blog about today’s ruling is here.

2/2/10 Simon writes in the Guardian about it here.

4/4/10 Jack of Kent’s detailed explanation of the judgment and its implications is here.

15 thoughts on “Up yours, BCA!”

  1. Thanks for the comments, guys.

    “I wonder whether the BCA’s statement was one they prepared earlier?”

    A bit like a nominee for a BAFTA award? 😉

    Well, the pdf containing their statement was created the day before the judgment but was amended about half an hour after it. I reckon they would have had two statements prepared.

  2. Excellent work the Cat.

    There is one extra thing that troubles me about this case which is that – as you say – it took 3 applications to get the appeal (Eady refused leave, the CofA refused leave, and only direct application worked).

    That can’t be right when the eventual judgement was such a reversal.

  3. Fiat

    Simon won the appeal yesterday.

    There is still the actual libel action to be heard and I think he will be looking forward to defending that – if the BCA are man enough to not drop the case.

  4. @IainD

    “There is still the actual libel action to be heard and I think he will be looking forward to defending that..”

    As I say in the article, he is relishing the prospect of having his day in court, when he will finally be able to expose those bogus therapies for what they are. That is what he wanted when he decided to stand up to the bullies in the first place.

    @Fiat

    God, how deeply in denial are you? Three top judges with a wealth of case law at their disposal couldn’t have made it clearer that they thought the action was crap. Get over it.

  5. I can’t see how the BCA can possibly win now.

    Simon Singh has been given leave to proceed on the basis that he wrote was fair comment.

    The BCA are going to have to prove that what he wrote was not fair comment and there is definitely a substantial body of evidence that chiropractic can be used to treat asthma etc. That will involve them getting expert witnesses in. Can’t really say who will testify in their favour.

  6. @LeeT: “Can’t really say who will testify in their favour”
    I hear that Andrew Wakefield will soon be looking for another job.

  7. In some countries you can pull time in the gaol for libel. Someone in Malaysia earned a few months recently for insulting a VIP. Irreverence against the king in Thailand can earn one a rough time. In the novel, “The Girl with the Dragon Tattoo”, the protagonist gets a 3 month sentence after losing a libel suit brought by an industrialist. I do not know if that is really Swedish law, but from the above you can see how serious wrong it is to let people with high self esteem write laws that seriously damage naysayers.

  8. I think Evan Harris is dead right. Not only did Justice Eady make a terrible ruling, but two applications to appeal were refused. Simon nearly lost the case because of:

    1) an unreasonable unwillingness of Justice Eady to look at the paragraph in which Simon explains “bogus” [and Justice Eady is generally considered England’s most senior and legally most skilled libel judge!] and

    2) the rejections of his applications to appeal [which may have been reasonable in law, but that would just show one of the flaws in the legal system]

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