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Case Law: British Chiropractic Association v Singh – Success for the Defendant

The Court of Appeal today gave judgment in the high profile appeal in British Chiropractic Association v Singh ([2010] EWCA Civ 350).  The case concerned an action for libel by the British Chiropractic Association (“BCA”), in respect of an article by Mr Singh in The Guardian

In earlier posts we have discussed the background to Mr Singh’s appeal, the appeal hearing and more generally, “Simon Science, Science and Comment“.  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.”

Mr Justice Eady held, on the hearing of preliminary issues ([2009] EWHC 1101 (QB), that the words meant that the BCA knew that there was no evidence to support its claims and that it knowingly promoted bogus treatments. He described this as ”the plainest allegation of dishonesty”.  He held that, accordingly, the words were fact not comment.   The defendant’s appeal was heard by Lord Judge LCJ, Lord Neuberger MR and Sedley LJ on 23 February 2010 and judgment was given today, 1 April 2010.

Judgment

The judgment of the court was short, 37 paragraphs, and was given by Lord Judge LCJ as a judgment “to which we all have contributed”.   The many “Sedley watchers” in the legal world will, however, recognise a number of distinctive phrases and arguments in what comes next.   The Court of Appeal rejected Mr Justice Eady’s view that “comment” was the opposite of “verifiable fact” – or, in the words of the judgment “he treats “verifiable fact” as antithetical to comment, so that any assertion which ranks as the former cannot qualify as the latter” [17].

It might, at first sight, seem perfectly logical to treat the distinction between fact and comment as one between statements which can be verified (“fact”) and ones which cannot (“comment”, or in Strasbourg terms “value judgments”).     However, according to the Court of Appeal, this distinction broke down in BCA case

because the subject-matter of Dr Singh’s article was an area of epidemiology in which the relationship of primary fact to secondary fact, and of both to permissible inference, is heavily and legitimately contested. The issue posed by the judge is in reality two distinct issues: first, was there any evidence to support the material claims? and secondly, if there was not, did the BCA’s personnel know this? If, as Dr Singh has contended throughout, the first issue is one of opinion and not of fact, the second issue ceases to matter“. [18]

Dr Singh’s contention on the first issue was accepted by the Court of Appeal.    Their view was summarised as follows:

What “evidence” signifies depends heavily on context. To a literalist, any primary fact – for example, that following chiropractic intervention a patient’s condition improved – may be evidence of a secondary fact, here that chiropractic works. To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect, such primary information is as worthless as evidence of the secondary fact as its converse would be. The same may equally well be true of data considerably more complex than in the facile example we have given: whether it is or not is what scientific opinion is there to debate. 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”. [20]

If the statement that there was “not a jot of evidence” was a matter of opinion or comment then it is no longer possible to contend that the allegation made by the words complained of is one of fact.  Thus the Court of Appeal are able to conclude that

“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” [30].

As a result, the judge’s ruling was wrong: the words were comment and not fact.  The Court of Appeal ended their judgment by making the well known point that “fair comment” is a misleading term and suggesting that “honest opinion” would be a better one [36].   A “rapid response” case comment from Media and Entertainment Chambers, 5RB can be found here.

Comment

Overall, the judgment is a curious one, with strong views expressed but little discussion of the applicable basic principles.  English libel law (for better or worse) is about the reactions of “ordinary readers” – some readers are more sophisticated, others more “avid for scandal”, but the fiction of the “reasonable reader” is supposed to produce some kind of “average” reading – a mid point on the scale.   None of this is considered by the Court of Appeal who implicitly assume that the ordinary reader of an article about chiropractic would consider subtle questions as to the nature of scientific evidence.  While a sophisticated reader may well take the view that “evidence” is a “value laden” concept we suspect that this is not the “ordinary reasonable” view:  ordinary readers think “evidence is evidence” and do not distinguish, say, proving criminal charges from epidemiology.

Furthermore, the judgment does not engage the distinction between attacking the doctrines and claims of chiropractors (which Mr Singh was entitled to do and which did not engage the law of libel) and attacking the BCA (which he has never suggested has any “public health” or scientific justification).   The Court’s failure to grasp this distinction can be seen in its (obviously incorrect) assertion that

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” [11]

Public debate about chiropractic is one thing, attacks on the BCA are quite another.  In conflating the two both Mr Singh and the Court of Appeal have failed to engage with a central point in the case.

Underlying much of the support for Mr Singh (and, it appears, the approach of the Court of Appeal) is a highly sceptical view about the value of chiropractic.   Although this view may command wide support the point is not relevant to the issues in the case.   A coherent libel law requires the same approach to be taken to Mr Singh’s article as would be taken to an article by the BCA making (the obviously false) claim that “Simon Singh happily promotes bogus attacks on alternative medicine when there was not a jot of evidence to support them“.   Such a claim would, it seems to us, constitute a false and defamatory allegation against Mr Singh, not an expression of opinion.

There is no doubt that the line between “fact and comment is a fine one” (as Afua Hirsch says in today’s Guardian) but it seems to us that the sensible place to draw it is between “verifiable fact” and “everything else”.   There is something odd about Mr Singh’s defence that, on the one hand he was dealing with scientific matters relevant to public health but, on the other hand, he was simply expressing his opinion.   In reality Mr Singh was seeking to make a substantial contribution to public debate by demolishing the claims of chiropractors.   He believed that he had something important to tell the public – something more important than a mere “opinion”.

In short, the judgment appears to stretch pre-existing doctrine in order to deal with a perceived injustice.   We can understand why Mr Singh’s supporters took such a strong view of his case and why the Court of Appeal approached the matter in the way it did.   We have, however, serious doubts as to whether approach taken is consistent with principle.  This is an important area of debate, and we welcome contributions on either side of the argument.

2 Comments

  1. Andrew Scott

    I agree that the judgment is long on rhetoric, and relatively short on consideration of key rules. The court’s desire to fuzz the boundary between fact and comment also certainly seems misplaced. However, its assertion (citing Easterbrook) that the courtroom should not be the forum to determine scientific questions (and implicitly that science cannot deliver ‘truths’; that it cannot give us verifiable facts – all very Popperian!) seems fair and appropriate to me.

    The issue here was not only that the article identified the BCA, but (per Judge Eady) that it accused the BCA of bad faith vis a vis customers. This, as you say is not a question of scientific controversy (that can culminate only in an evaluation based on reasons) but rather an assertion of fact speaking to the claimant’s motivation / state of mind.

    With no focused consideration, the Court of Appeal either denied that any such assertion of fact was made, or concluded that any assertion of fact involved only a non-damaging imputation. I find it very difficult to agree.

    Dr Singh may well have been offering his evaluation of (comment on) the state of the evidence, but he also used his credibility as a public scientist and the fact that he is expert on the point (ie I can say this because I have written a book on it…) to encourage the reader to agree with him, AND ON THAT BASIS to infer from the ‘respectable face… yet.. happily promotes’ language that the group is in fact deliberately misleading consumers. It doesn’t really matter whether the reader understands ‘bogus’ as a statement of fact or as the evaluation offered by the clever, esteemed and expert Dr Singh. Either way, he or she still draws an inference re the behaviour of the BCA which detrimentally affects its reputation.

    The court has jumped from distaste for regulating scientific discourse to (effective) exoneration of Dr Singh. The second issue does not fall away as the court suggested simply because we/they understand the word bogus differently to Eady J.

    The rule going forward should be that journalists/scientists are free to discuss matters of scientific controversy,
    AND to identify those who hold and/or exploit minority evaluations of the evidence,
    AND to assert that in the view of the journalist/scientist such behaviour is outrageous, irresponsible or reckless (as Singh maintains he intended to assert),
    BUT imputing knowledge/dishonesty/bad faith on the part of such persons should only be permissible where it can be justified (this being assessed by reference to the meaning that would be inferred by the ordinary reader portrayed in your post, and not the author’s intended meaning).

    I’ve posted something similarly opaque on mediapal – if you can bear it, its here.

  2. Richard Edwards

    What is difficult to follow is how the Court of Appeal can decide that the words complained of are comment without first deciding what their “natural and ordinary meaning” is. The legal fiction of “natural and ordinary meaning” may appear odd but it is quite difficult to devise a better approach to the law of libel. If the test for “comment” is that of the sophisticated analyst (as it appears to be here) then where does this leave “meaning”?

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