The campaign by Simon Singh and his supporters to overturn the finding of Mr Justice Eady in the British Chiropractic Association v Singh case (discussed by us here) has largely focussed on the operation of the defence of “fair comment” in English libel law. Mr Singh and his supporters have argued the problems which his case is believed to illustrate can dealt with by treating “scientific judgments” as “comment”.
This is discussed in a recent post on the “Jack of Kent” blog entitled “Science and Libel: beyond the Simon Singh case”. It seems to us that these arguments rest on a number of misconceptions about English libel law.
First, there is only a libel if defamatory words are published by a defendant and refer to an identifiable person. A criticism or discussion of a particular scientific theory or procedure cannot, without more, be defamatory. The “more” in question must be some reference to an individual who has advanced or promoted the theory or procedure. Thus it cannot be defamatory to criticise, say, homeopathy as being medically valueless. It could, however, be defamatory to suggest that the work of particular homeopaths was valueless. Going back to Mr Singh’s case, no libel action would have been possible if his remarks had been confined to chiropractic in general. The reason why there was a claim was because his remarks referred specifically to the British Chiropractic Association (“the BCA”).
Second, the law of libel distinguishes between “statements of fact” and other kinds of statement. In traditional terms the distinction is between “fact” and “comment” but these words can be misleading. “Comment” covers anything which is or can be reasonably inferred to be “a deduction, inference, conclusion, criticism, judgment, remark or observation” (see Branson v Bower  EMLR 800, para 12). This is the same distinction which the European Court of Human Rights seeks to make by dividing statements into “facts” and “value judgments”. Whereas “comments” or “value judgments” can be defamatory, a person who makes a statement of this kind honestly will have a complete defence. On the other hand, a person who makes a defamatory statement of fact is obliged to prove that it is true. Thus, in Mr Singh’s case, he would have had a complete defence if he had said that in his opinion the treatments promoted by the BCA were bogus. The difficulty which arises for him is that, on one interpretation, he was making factual allegations about the BCA (saying, in effect, that they were acting in bad faith).
In short, an honest “scientific judgment” can only be the subject of a serious defamation claim if:
- It refers to an identifiable person.
- It makes a defamatory allegation of fact about that person – for example, questioning their honesty or competence.
Let us take some examples. A scientist who says that the practice of homeopathy is dangerous to public health and a waste of public money does not face a potential libel claim – she has not “attacked” any person. A scientist who honestly states that, in her opinion the homeopathic treatments advocated by Mr X are useless, would have a complete defence to a libel claim because the “attack” on Mr X is a “comment” or a “value judgment”. The only circumstance in which the scientist will be obliged to prove the truth of her claims is if she suggests that Mr X knows that the treatments he advocates are useless – this is an allegation of bad faith, an allegation about Mr X’s state of mind, which the scientist will have to prove. It is difficult to see, at first sight, why it is oppressive for scientists to be subject to this kind of discipline. Precisely the same rules apply to any other kind of critic or commentator.
Some confusion appears to have arisen as a result of the reference to “evidence” in Mr Singh’s article about the BCA. A scientist who criticises the evidence relied to on support a particular course of treatment is not going to be exposed to libel action unless she pitches her criticism at such a level to question the honesty or competence of those who rely on such evidence. A scientist who says “there is no proper evidence” to support a particular theory is likely to be making a “comment” – a deduction, inference, conclusion, criticism, judgment, remark or observation. This is because, in most cases, what constitutes evidence for a particular theory will be a matter of assessment or evaluation. It is unlikely that there will be any serious defamation claim made. There will only be problems if the scientist goes on to suggest that proponents of the theory know that there is no evidence but have, nevertheless, carried on advancing it. This is not scientific judgment – it is personal attack.
We suggest that this is the fundamental distinction which should be made. Scientists can (like everyone else) criticise ideas, theories or evidence advanced by others. The law only gets involved where the criticism gets personal. Those who make strong criticisms need to choose their language with care – this is not a “fetter on scientific judgment” but a basic tenet of responsible social behaviour which should apply to scientists as much as to everyone else.