Partner, Head of Amsterdam Office
Out-Law News | 01 Apr 2010 | 12:47 pm | 5 min. read
In a controversial case which was seen by scientists and academics as an attempt to stifle the results of scientific research in the name of practitioners' business interests, the Court of Appeal said that the original High Court ruling had had a "chilling effect on public debate".
"It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ," said Lord Justice Judge, Lord Justice Neuberger and Lord Justicre Sedley in their ruling on the case. "Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic."
Singh had just written a book about alternative medicine in 2008 when he wrote in The Guardian about the lack of evidence backing up claims made by chiropractors that their practice could fix not just back complaints but other ailments seemingly unconnected to spinal health.
"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas," he wrote. "The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station."
"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," he said.
The High Court said that saying that the British Chiropractic Association (BCA) "happily promotes bogus treatments" was libellous because it was a statement of fact that the BCA knew that the treatments did not work and promoted them all the same.
The Court of Appeal said that the claim was an opinion and had to be treated as such because there was too much competing evidence and dispute about what was and what was not evidence to be able to treat Singh's claims as a bald statement of fact.
The Court said that in such a disputed realm of science, when both sides produced reports they claimed backed their views, a writer who backs one set of claims over another is expressing opinion.
"It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist," said the ruling. "It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim."
"The material words, however one represents or paraphrases their meaning, are in our judgment expressions of 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," it said.
The Court of Appeal said that in a debate such as those that rage over the efficacy of alternative therapies, there was fierce dispute about what can even count as evidence. Singh submitted to the Court a survey of controlled scientific studies that he said prove his view to be true. The BCA submitted studies, including one of babies crying which contained no 'control', a basic part of normal scientific research.
"If in the course of the debate the view is expressed that there is not a jot of evidence for one deduction or another, the natural meaning is that there is no worthwhile or reliable evidence for it. That is as much a value judgment as a contrary viewpoint would be," he said.
The ruling said that Courts must not be used as places where heavily disputed truths in other disciplines – such as science – are decided, and that courts should not then be used as tools to silence dissenting voices. The judges said that they hoped that the Courts would not be used as censors, as Church authorities were in Rome in Milton's day.
"Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote: 'I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.' That is a pass to which we ought not to come again," the ruling said.
The ruling also emphasised that the place where science disputes should be settled is in the scientific realm, in free and open debates between practitioners, not in court rooms.
"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'," said the judges.
The ruling said that in this context of disputed evidence, and disputes even about what did and not constitute evidence, the use of the word 'happily' no longer meant that the BCA was knowingly promoting practices it believed to be false.
"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 – a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims," the ruling said.
Scientists, academics and news publishers have grown increasingly vocal in recent years about UK libel law, which is widely seen as being more restrictive than most.
The Government has said that it wants to reform libel law to 'rebalance' it in favour of the free speech of writers, academics and scientists, but it faced opposition from within the Labour Party this week and could struggle to pass its reforms before the general election and suspension of Parliament, whose announcement is widely expected next Tuesday.
Partner, Head of Amsterdam Office