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    Thursday, 1 April 2010

    Comment on the Singh case: all's well that ends well?

    As noted below, Dr Simon Singh was this morning successful in his appeal against the findings on meaning of Mr Justice Eady. In a brief judgment - as befits the narrowness of the issues - Lord Judge CJ, Lord Justice Sedley, and Lord Neuberger MR ruled that Mr Justice Eady had erred in his approach to the issues at hand (paras 19 and 33). They cited Orwell and Milton in depicting "a pass to which we ought not to come" (para 23). It is heady stuff, and a welcome rebuttal - echoing Reynolds, Simms, and many other seminal cases - to those who allege that the British courts do not adequately countenance the centrality of freedom of speech to the democratic polity.

    Three questions now remain: (1) is this the end of this particular story (will the case go back to the High Court; will the BCA appeal on to the Supreme Court?); (2) in light of the judgment, is there still a need for further reform of defences in this area, or of libel law more broadly, and (3) was the Court of Appeal right (which might well bear on the second of the sub-queries in (1) above)?

    On question 1, time will tell.

    On question 2, the views of the campaigners for libel reform is that there is still need for further reform. As stated elsewhere, I'd tend to agree on this general proposition while not concurring that changes are necessary specifically in terms of the introduction of a new statutory public interest defence.

    On question 3, I think the weight of considered opinion (as far as I've been able to discern it) is that the court was indeed correct (the more blinkered adherents of the reformist movement will no doubt think it scandalous that the question could even be raised). However, here are some preliminary - and perhaps unsettling -thoughts.

    The court identified two key questions in the case. The first was whether the view presented in Dr Singh's article (set out in para 6) on the scientific validity of the impugned treatments should be treated as a statement of fact, or as a statement of opinion / a value-judgment. Dr Singh had been somewhat categorical in his presentation of his view on this, saying there was "not a jot of evidence" supporting the efficacy of the treatments concerned. The second issue concerned the meaning of the phrase "[the BCA] happily promotes bogus treatments", and whether it amounted to a statement of fact or of opinion. Mr Justice Eady had concluded that this amounted to the "plainest allegation of dishonesty and indeed... accuses [the BCA] of thoroughly disreputable conduct" (cited in para 7).

    In their judgment, the Court of Appeal adopted the dictum of Judge Easterbrook (US - famously, he of the 'law of the horse') in asserting that "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). This must be correct. The upshot re the first issue was that the statement imputing that the treatments in question were 'bogus' was a statement of opinion, albeit an emphatic one.

    With regard to the second issue, the meaning of the statement in question hence became something like: "the BCA happily promotes treatments that on my evaluation of the evidence are bogus". The Court of Appeal asserted that its finding on the first issue had the result that the second issue falls away (para 18); that "once [the first statement] is properly characterised as a value judgment, the word 'happily', even if synonymous with 'knowingly', loses its sting" (para 30). The court also doubted that "the judge was justified in any event in attributing to the word any significance beyond, say, 'blithely'"; they certainly did not agree that an imputation of dishonesty was in play.

    It is on this second finding - almost presumed by the Court of Appeal - that I hold misgivings. It is also this point - the supposed imputation of dishonesty - that is the essential basis of the BCA's complaint (at least, so much can be inferred from their press release following the ruling this morning). Dr Singh's article was intended strongly to present his view on the legitimacy of the treatments concerned; precisely to persuade the readers of the piece of the validity of his views (and his views are indeed very persuasive). They are also given credibility by the fact that their author is Dr Simon Singh, an esteemed public scientist. Having read the piece, we are not agnostic regarding the treatments concerned; we are not indifferent to their prescription. We would of course presume that the BCA knew at least as much about the scientific research in this area as Dr Singh.

    It is in this frame of mind, then, that we read the second contested statement. The sting of the allegation is not obviously drawn. 'Happily' does not easily collapse into 'blithely'. The appreciation that Dr Singh's assertion - indeed that any assertions on a matter of scientific controversy - can only ever be a value-judgment supported by reasons is almost beside the point. The imputation regarding the claimant's state of mind (knowing, dishonest, whatever) is not a matter of scientific controversy.

    On this reading, Dr Singh's article would have been entirely defensible if it had:
    1) merely stated a view on the scientific legitimacy of the treatments and noted that the BCA promotes them (leaving the reader to infer the next step)
    2) stated a view on the scientific legitimacy of the treatments, noted that the BCA promotes them, and asserted that 'I, Dr Simon Singh, think this is outrageous',
    BUT - because of what it implies - the article is possibly not defensible given that it:
    3) stated a view on the scientific legitimacy of the treatments, and noted that the BCA 'happily' promotes them.

    The distinction between (1) and (3) is the single word, 'happily': is that enough to make the difference? I confess to being somewhat uncomfortable with the distinction between (2) and (3). It rests upon the author saying what he thinks, and the author saying what the other person thinks. There may be an out: I may be wrong, but I think in ECHR jurisprudence the latter is considered a statement of fact but one which - because it is essentially unprovable - is treated as though it were a statement of opinion (? - this was the basis on which I was expecting Singh to win).

    It may be that liability is appropriate in these circumstances (although in the circumstances of this case, I'd be perfectly happy for these musings to be ignored). Even if it were so, Dr Singh and members of the broader libel reform campaign are surely correct to express their amazement that it takes two years and hundred of thousands of pounds to get to this point.


    Anonymous said...

    There are a couple of good posts on the background law on the Inforrm blog 1 and 2.

    The whole saga does rather beg the question of why the BCA didn't take up the opportunity to reply offered by the Guardian (as noted by the Court of Appeal), but also the question of why Singh didn't just quickly correct the impression that he intended to suggest that the BCA were dishonest that can obviously be read from the original piece.

    Andrew Scott said...

    For background on Simon Singh's motivation, see here.

    Andrew Scott said...

    There is a somewhat more critical, and admirably clear, comment on the judgment to be found on the Inforrm blog.

    Andrew Scott said...

    Predictably, the BCA has now pulled out of the case - see here and here