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.

Singh wins appeal in British Chiropractic Association case

Simon Singh has won his appeal in a unanimous judgment of the Court of Appeal. Judgment is not yet available. Hence, its not yet clear what the broader ramifications of the ruling may be.

Update: the ruling in British Chiropractic Association v Singh [2010] EWCA Civ 350 is now available on the bailii site.

Update on 10% success fee order - Commons difficulties

The statutory instrument designed to implement the move to a 10% success fee recovery cap for CFA-funded libel cases, has hit a further snag. This time the difficulties have arisen in the House of Commons (see previous post re House of Lords and JR). A committee of MPs - including four Labour, three Conservative, and two Lib-Dem members - has voted 9-5 to require the matter to be considered on the floor of the House (details have been reported on the subscription news-source, Media Lawyer, but I can't find further info on the parliament.uk site - sorry! Update: but thankfully, Inforrm is better informed - see here).

The measure may well clear its Parliamentary hurdles in the 'wash-up' before Parliament is prorogued for the election - the Government is said to be looking to find time for this to take place - but it is to the credit of both Houses that they have highlighted the weaknesses in this specific proposal.

Libel-reformists have been expressing outrage on Twitter, and in particular are badgering Tom Watson MP (one of the Labour members). They would do well to read the evidence presented to the Lords Merits Committee on the inadequacy of the consultation and evidence relied upon by the MoJ (available here).

Everyone recognises the need to address the costs problem in libel actions, but this specific solution is liable to create its own difficulties. It won't significantly affect the chilling effect of threatened actions on impecunious defendants, while it will deny access to justice for all but (i) claimants with the most clear-cut of cases (which tend to be settled immediately once raised), and (ii) wealthy litigants. Indeed, the utility of CFAs for defendants as well as claimants has been highlighted in a number of recent cases involving scientists facing libel suits.

The proposed order is the proverbial 'bad law', based on political expediency and not any solid evidence base. As has been argued elsewhere, libel reform (the need for which is indeed pressing) must not be piecemeal and un(der)-principled.

Papers published on paparazzi harassment and libel reform

I've had a couple of research papers published in the last months that may be of interest to some. If that's the case, please let me know and I'll be happy to forward...

Scott (2009) Flash Flood or Slow Burn? Celebrities, Photographers and the Protection from Harassment Act. Media & Arts Law Review, 14(4), 397-424

• Abstract: In recent months, a number of female celebrities have been awarded court orders under the Protection from Harassment Act 1997 to constrain the excessive behaviour of the paparazzi. This is a novel, but unsurprising, use of the statute. Indeed, what has been most startling in this development is the fact that the statutory cause of action has never formerly been deployed in this way in the United Kingdom. The aim of this paper is to assess why this has been the case. In doing so, it reflects upon opposing perspectives on the interaction between celebrities and the media; details the origins of the 1997 Act, its requirements, and their application to the newsgathering context; reviews the jurisprudential forebears to the recent actions that suggested that the Act could be deployed in a newsgathering context come the appropriate case, and considers the operation, strengths, and putative weaknesses of alternative regulatory options (in particular, that offered in this respect by the Press Complaints Commission). The paper concludes by highlighting a combination of factors that may explain why the Act has been used only now, by musing on the ramifications for celebrities and the paparazzi, and by reflecting on the likely future interplay between the legal and regulatory avenues oriented towards combating the problem of harassment by photographers and other journalists.
  

Mullis and Scott (2010) Something rotten in the state of English libel law? A rejoinder to the clamour for reform of defamation'. Communications Law , 14(6), 173-183

• I've commented on this paper on MediaPaL previously. It has since had a fair, if often critical, run in the broader media and policy circles.

Politically motivated (?) 10% CFA success fee order gets rocky ride

In January, the Ministry of Justice opened a consultation on the imposition of a 10% cap on the recoverable success fee for CFA-funded libel claims. This consultation closed some 4 weeks later. It culminated, with what might be considered impressive rapidity, in the presentation to Parliament in early March of a statutory instrument (the Conditional Fee Agreements (Amendment) Order 2010, made under section 58(4) of the Courts and Legal Services Act 1990) designed to put the policy change into effect.

Interestingly, two weeks ago the House of Lords Merits of Statutory Instruments Committee drew 'the special attention of the House' to the measure, noting, "we regret that insufficient time has been allowed to produce a solution based on more robust evidence or on which there is broad agreement, and that might seem more likely to achieve the policy objective without the potential side effects". The Committee was worried about the haste with which the measure had been concocted, and noted that several other options on the table had been for some reason discounted.

The Committee received a number of persuasive contributions questioning the legitimacy of the order - included in an appendix to their report - from such figures as Nicholas Green QC (Chairman of the Bar Council), Carter Ruck Solicitors, the Law Society, Professor Richard Moorhead of Cardiff University (who has conducted an important scoping review of CFAs in the defamation and other contexts for the MoJ), and Which? (welcoming the change).

The Carter Ruck submission noted the "widespread concern within the legal profession that the proposed reduction in success fees would seriously reduce - if not eliminate altogether - the rights of ordinary individuals without substantial means to obtain access to justice in defamationa nd privacy cases". Professor Moorhead concurred: "I am aware of no objective evidence base from which the Government could draw its calculations for the 10% fee beyond that provided by those lobbying for one side or the other in the debate... without persuasive evidence to support it the basic economics of conditional fee agreements would suggest that at a level of 10% uplift would prevent all but the most meritorious cases from proceeding on a conditional fee. For rich litigants, this presents no problem, for poorer litigants this presents a major impediment to access to justice".

In light of all these representations, a motion of regret was subsequently raised by Lord Martin (the former Speaker of the House of Commons), requiring the Order to be debated on the floor of the House of Lords. This was duly done last week, with the result that Lord Martin withdrew his motion. The debate was very noteworthy, however, for the contributions offered by Lords Martin, Woolf, Scott and Pannick.

By way of aside, a lawyers' group has threatened to seek judicial review of the government's decision to introduce the new 10% cap on the basis, inter alia, that insufficient time was allowed for consultation, and that the government failed properly to take account of the impact on access to justice

The most excellent Inforrm Blog

Normally, new blogs of note just get posted up on the blogroll. That launched recently by Inforrm, however, is worthy of a more substantial trail. Its truly insightful, clear, and authoritative on matters concerning media law. Recent postings have focused on libel, privacy, harassment, freedom of expression and more. It will become essential reading - for me, it already is.

Find it here

Lord Hoffman beats-up on the libel reform campaign

In a speech made earlier this week, Lord Hoffman questioned at length and in persuasive depth a number of the bases of the current libel reform campaign. In doing so he echoed much of the critique offered in the report published recently by Alastair Mullis and myself. Or rather, he was somewhat more brutal.

I haven't yet been able to find the speech online, although for LSE students a transcript is available on the LL295, LL4H2 and LL407 Moodle pages (others are welcome to contact me for a copy). Interestingly, you will find no coverage of the speech - or the Mullis-Scott report - in the mainstream newspapers who have been campaigning for reform, or on the pages of Index on Censorship, English PEN or the Libel Reform Campaign pages. So what has happened to the much-vaunted commitment to openness and democratic debate?

The speech itself deconstructed the 'libel tourism' complaint, and in particular exposed the Ehrenfeld bandwagon. Ultimately, Lord Hoffman concluded that the complaint is essentially American in nature, and is borne of the over-weened value accorded - uniquely - to freedom of speech relative to other social values in that jurisdiction. He quoted a Canadian judge to emphasise the cost of the American approach: "an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy". He was corruscating on the trend for US states to introduce libel blocking statutes. He was bemused by elements of the Index on Censorship / English PEN report. Notably, he drew a comparison between the sums that newspapers are willing to pay their sources for salacious stories - note the purported 250k pound price tag on Vanessa Perroncel's side of the JT affair - with the proposed cap on libel damages of a mere 10k. Its an important rejoinder to the one-sided media campaign on reform, and demands to be read by the assorted lovies who have added their undiscriminating ballast to that movement.

That all said, for me, Lord Hoffman went a bit too far on the libel tourism issue. As highlighted in the Index / PEN report, there certainly is a chilling effect of English libel law on speech elsewhere - they cite noted instances from Eastern Europe for example - that does need to be addressed. Like them, we would be particularly concerned where this chill falls upon relatively impecunious defendants (human rights NGOs; local media in developing countries etc). It is uncertain quite how significant this problem is in fact (that is, once one moves past the easy rhetoric and bombast). Lord Hoffman asked for more data on this point.

In our report, Alastair Mullis and I suggested that addressing the costs issue would go some way to alleviating the problem, and we note that the Government is seized of this issue. We doubt that in the more worrying cases that only addressing costs would quell the chilling effect completely. Hence, we suggested that it may be reasonable to introduce the opportunity for defendants to counter-sue in cases where the motivation of the claimant was manifestly just to silence critical comment.