Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Thursday, 18 June 2009

Libel and Science: Not Happy Bedfellows

(Yes, this is my third blog entry in as many days. You might almost think I'd finished the BVC.)

Since I proclaim this to be an IP and Technology Law blog it might seem odd to talk about Libel. True, libel tends to be seen these days as part of the wider field of Media Law, itself a close cousin to IP. Nonetheless it is not an area I have taken much interest in beyond the curiosity most of us have about an area of law that positively excels in the parties being even ruder about each other than normal.

One case has changed that, however: British Chiropractic Association v Singh. As has been extensively reported, the BCA is suing science writer Simon Singh over an article he wrote for The Guardianlast year, in which he cast doubt in the strongest terms over the BCA's claim that chiropractic - a form of 'complementary medicine' that involves manipulating the spine - could help with childhood diseases such as colic. Now, I came into law from a scientific/engineering background, and perhaps rather naively I tend to assume that they way you settle scientific disputes, as distinct from ones about negligence, contracts or badly-placed hedges, is by rational argument on the basis of the evidence. The BCA beg to differ, and have sued Singh.

Why am I interested? For one thing, I enjoy Singh's writing. For another, I was at Imperial College with Singh back in the late 1980s, and although I can't say we knew one another well I'll confess to a degree of loyalty to a fellow alumnus. Above all though I consider it profoundly wrong that defamation law is being used to substitute for scientific debate.

Much, much more detail about the case than I can go into here has been posted by Jack of Kent; see his blog for updates and links to the now very extensive coverage of this issue in the wider press. I am writing this though because BCA v Singh has been an eye-opener for me as to some of the more disturbing aspects of defamation law. It is strange enough that, unlike in most other causes of action, the burden of proof lies principally on the defendant. It is even more disconcerting when that burden is pushed to almost insurmountable levels by preliminary rulings that can define the scope of the alleged libel in terms that the defendant may be wholly unable to prove. Finally, whilst all litigation can be expensive, the costs of libel cases in England can be positively ruinous; a recent study by the University of Oxford found that a libel trial in England typically costs 140 times the average cost in the rest of Europe.

Whatever the issues with libel trials in general though, it above all remains wholly inappropriate to use this cause of action to stifle scientific debate. A positively stellar list of luminaries has signed a statement to this effect; ten thousand more readers have added their names, myself amongst them. The progress of science and medicine depends on open, frank discussion of the merits and hazards of treatments, be they conventional or complementary. Seeking to suppress such discussion helps no-one.

Singh is currently seeking leave to appeal the preliminary ruling in this case. I am sure Jack of Kent will be first with news whatever happens. In the mean time I earnestly hope for an outcome that is not only good news for Singh but also good news for everyone who writes about contentious aspects of science.

free debate

1 comment:

Anonymous said...

Oddly, the one thing I wouldn't seek to change about UK libel law is the burden of proof. My reasoning is simple: you can't, logically, prove a negative, and if the burden of proof is reversed the plaintiff has to prove that what was published is not true.

I'd like to see nearly everything else changed, though. Fact should be an absolute defence, and that should include scientific fact by the standards of the time. The size of the "reputation" should have no impact on the size of the libel (you can't quantify reputation), nor should the nature of the libel (I have no time for this business where Eady LJ arbitrarily determined that Singh had accused the BCA of dishonesty; I don't mind his making that determination, I just don't see that it should have anything to do with the libel).

And, perhaps above all, the *damages* should be drastically scaled down; I'd submit that the size of the awards has a lot to do with the scale of libel costs in the UK. Any amount of embarrassment, yes, recantations in newspapers or apologies on TV in prominence and proportion to the libel, yes, but not cash.