Libel Law: Singh case to be heard by the Court of Appeal

What must be on of the most widely discussed interim rulings in British libel history comes before the Court of Appeal on Tuesday 23 February 2010.   The case of British Chiropractic Association v Singh is being heard by a Court consisting of Lord Judge LCJ, Lord Neuberger MR and Lord Justice Sedley.  This unusual combination of the two most senior Court of Appeal judges is, doubtless, a response the wide public discussion of the case.

As is well known, the case concerns a claim by the British Chiropractic Association (“the BCA”) against science journalist Simon Singh.   It arises out of an article which he wrote in the “Guardian” on19 April 2008.

Proceedings were issued on 10 July 2008.  The words complained of were as follows:

“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 organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

The claimant contended that these words bore the following natural and ordinary meanings:

“…that the [BCA]:
(a)   claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and
(b)   by making those claims, knowingly promotes bogus treatments.”

The defence was “fair comment” – in other words that the writer was giving his opinions (in Strasbourg terms “value judgments”) and not making any assertions of fact.

It was agreed that the matter would be tried by a judge alone and, on 7 May 2009 Eady J was asked to determine two issues: the meaning of the words complained of and whether they made allegations of fact or constituted comment.  In a short judgment the judge rule that words bore the claimant’s pleaded meanings and were allegations of fact, not comment.  His reasoning is contained in two paragraphs as follows:

12.  What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit. In this case these claims are expressly attributed to the claimant. It goes further. It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.
13.  It is alleged that the claimant promotes the bogus treatments “happily”. What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

It might be thought that this was a straightforward libel case:  the combination of making claims where there is “not a jot of evidence” and “happily promotes bogus treatments” strongly suggests that the BCA is deliberately misleading people (and why describe it as the “respectable face of the chiropractic profession” if the intention is not to suggest that it is not respectable at all?).

Mr Singh was refused permission to appeal by the judge and by Keene LJ on the papers.  However, on 14 October 2009, Lord Justice Laws gave him permission to appeal ([2009] EWCA Civ 1154) on the basis that it was arguable that the judge had conflated the two issues which he had to determine.   The reasoning is difficult to follow but, by this time, a considerable public campaign had been launched and on behalf of Mr Singh to challenge Eady J’s ruling.

Mr Singh’s contention appears to be that he did not intend to accuse the BCA of any wrongdoing and was attacking chiropractic in good faith.   However, in the absence of a plea of malice Mr Singh’s intentions are not legally relevant – the question is how would an ordinary reasonable reader understand his words?  It is difficult to see how, on conventional principles, they could be understood as doing anything other than making allegations of bad faith against the BCA

An account of Mr Singh’s position can be found on the blog of one of his supporters, Allen Green, who comments on these issues under the name “Jack of Kent” – his most recent post is about the forthcoming Court of Appeal hearing but he has also blogged about the first instance decision and a range of other points relating to the case.  The case has attracted the attention of many other bloggers, for example, Lucifee’s “Two Cultures” blog has a post (critical of the decision) entitled “In Defence of Mr Justice Eady”.

The huge media interest is largely the result of a campaign by the defendant himself.  His account of the case can be found here.   The charity “Sense about Science” has joined English PEN and Index on Censorship “in a coalition to campaign for libel reform” – and has launched a “National Petition for Libel Law Reform”.

It seems to us that the most interesting aspect of the case is not the legal points (which involve the straightforward application of established principles) but the apparent failure of the defendant and many of his supporters to understand what is really in issue.

In his 3 June 2009 piece Mr Singh argues that “the article was about an issue of public interest, namely childhood health and the effectiveness of particular treatments for some serious conditions” and hence he was not prepared to apologise.   The importance of the subject matter is not in doubt but it is obvious that important subject matter does not, of itself, allow defamatory statements to be made.  The question in a libel case is “what do the words mean?” and, if allegation made is one of fact, “is it true?”   Mr Singh appears to accept this:

“The meaning of my article is to some extent open to interpretation. I intended the article only to say that certain chiropractic treatments are not backed by any reliable evidence and that this was “comment”.

Three points arise from this.  First, what the article means is a not a question of what Mr Singh intended – but how most people (“ordinary reasonable readers” in the jargon) would read the article.   Second, the statement that he intended this to be “comment” is not entirely consistent with what has been said about public interest:  it appears that he was not just intending to “give his views”  but rather, on his own account, was trying to impart important information to the public.  Thirdly and most importantly, Mr Singh says nothing about the BCA in his article.  It is one thing to say that a form of treatment is useless or even positively dangerous, it is another to say that the BCA (“the respectable face of the chiropractic profession”) “happily promotes bogus treatments”.   In saying this Mr Singh is, in football parlance, “going for the man and not the ball”.  If he was, viewed, objectively making factual allegations of bad faith against the BCA then he accepts that these were not true.

It may not have been Mr Singh’s intention to attack the BCA – he says, and there is no reason to doubt it, that he did not intend to accuse them of dishonesty (although he says that he feels they are “deluded and reckless” which comes pretty close).   It is difficult to see why, in this context, Mr Singh does not offer to correct his article and to apologise for making what has been understood (at least by some) as an allegation of bad faith.

In short, the action is not about “medical treatment” but about whether the words actually used by Mr Singh amounted to an allegation of bad faith.  This is an allegation which Mr Singh says he did not intend to make and, in the end, the Singh case may be about nothing more than a poor choice of words by the writer.

We will report further on the Court of Appeal hearing later in the week.