Well, it seems to me that we are not disagreeing about much. You agree that whether chiropractic techniques can cure certain illnesses is a matter of fact, and obviously enough Simon Singh was denying that they can effect those cures. The disagreement is that you think that statements on such factual matters can sometimes fairly be treated as mere opinion. It is this that is an innovation in English law, and it is a vague one, hence the scepticism of myself and commentators I referred to. 

It is very hard to pin down why *this* factual assertion should be treated as mere opinion. Points you make: the statement was in broad terms (but it was quite precise despite it); Singh referred to sources elsewhere to back himself up (but that emphasises that it is a factual matter, surely?); and that his remarks were in the "Comment" section of the newspaper (are you serious?). The remark was factual - that chiropractic doesn't have the effects claimed for it - and this judicial innovation seems entirely discretionary in its operation. It is not enough that Lord Judge's heart is in the right place. This rule will mostly be applied by other judges, who will have a variety of views.

None of that, however, is what I and the other commentators are complaining about. It may be that, fairly applied by sensible judges, this will yield sensible results.  But that is no way to run a legal system. Free speech requires bright lines. This new rule leaves commentators such as Singh at the mercy of individual judges, who may or may not take an enlightened view. Under this rule, Singh has free speech if he comes up before Lord Judge but not if he comes up before Eady J. The chilling effect is obvious.


Steve Hedley





-----Original Message-----
From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
Sent: Wed 14/04/2010 01:28
To: Hedley, Steve
Cc: obligations@uwo.ca
Subject: [Spam?] Re: ODG- Defamation, BCA v Singh

Dear Steve;
Thanks for the very helpful links to discussions of the case. I must say I have to disagree with you on your criticism of the decision, however. I absolutely agree that the question whether chiropractic techniques work or not is indeed a question of fact which needs to be evaluated by evidence. But the question still remains whether what Simon Singh had actually said was a statement of "honest opinion" (or "fair comment") in the sense understood by defamation law. In other words, someone should be able to express their honest opinion about matters which could be verified, but in certain circumstances the law of defamation allows them to do so in way which will not attract liability, even if they cannot in the end prove that all that they said was true.
It seems to me that that, in the context of the publication, is what Mr Singh did. His comments were made in "broad terms"- "not a jot of evidence", "bogus treatments". They were made on a page in the newspaper headed "Comment and Debate". In Australian cases at any rate, the fact that the statements were made in a context where other sources of information were referred to also supports the view that these were "fair comment" and the readers could go to the specific sources and check for themselves.
Of course in a different context the remarks may have not been able to be seen as "comment" of this sort. If the remarks came in an academic publication the denial of "any" evidence to support the claims would be very serious and taken as a statement of fact. But in an avowed "opinion piece" in a newspaper it seems to me that the remarks can be taken by the reader for what they are- Mr Singh's opinion which he honestly holds. The law of fair comment is in place to allow the free discussion of issues in a way which it is apparent was probably stifled by the first instance decision.
Regards
Neil F

On 13/04/2010, at 5:11 PM, Hedley, Steve wrote:


        While all commentators agree that the result feels right, there's considerable unhappiness at the reasoning - the criticism (if I can sum up a number of points of view) is essentially that whether chiropractic works is NOT just a matter of opinion, and indeed the whole point of Simon Singh's criticism is that individual opinions, unconstrained by evidence, are not worth very much.  It seems bizarre to say that his statement is itself "opinion", even if this leads to a result we are happy with.
       
        For web-based commentary see:
        Metamagician and the Hellfire Club - http://metamagician3000.blogspot.com/2010/04/case-note-on-simon-singh-appeal.html
        Skepticlawyer - http://skepticlawyer.com.au/2010/04/02/nb-lawyers-are-not-scientists-please-stop-trying-to-recruit-us/
        Cearta - http://www.cearta.ie/2010/04/simon-singh-bogus-claims-and-finally-sense-about-libel/
        MediaPaL@LSE - http://lsemediapal.blogspot.com/2010/04/comment-on-singh-case-alls-well-that.html
       
        Some hint that we should be working towards a theory of which issues the courts should involve themselves in - lawyers should not pretend to be scientists, doctors or historians - but no such theory appears in the CA's judgment, and it's not easy to construct one. Would ODG members be happy if the Deborah Lipstat action (Irving v. Penguin Books Ltd & Lipstat [2000] EWHC QB 115) had been dismissed on the basis that it is mere "opinion" whether the holocaust happened?  I don't imagine so. But why is the holocaust "fact" but the inefficacy of chiropractic "opinion"?
       
        So it is good that Simon Singh won this stage of the action - but it is very hard to see that there was anything technically wrong with Eady J.'s original judgment against him - and it's not enough simply that the judges in the appeal court happen to have "the right values" allowing them to avoid inconvenient results - more systematic reforms are needed.
       
       
       
        Steve Hedley
       
       
        -----Original Message-----
        From: Neil Foster [mailto:Neil.Foster@newcastle.edu.au]
        Sent: Tue 13/04/2010 05:52
        To: obligations@uwo.ca
        Cc: Charles Douglas
        Subject: ODG- Defamation, BCA v Singh
       
        Dear Colleagues;
        A bit late but thought others may not have noticed yet that the EWCA overturned the trial judge's decision in the very controversial defamation case of British Chiropractic Association v Singh [2010] EWCA Civ 350 (01 April 2010) http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html. Simon Singh, well-known science writer and broadcaster, had criticised some of the more outlandish claims of chiropractors in a newspaper article, and then been sued by their professional association. A great deal of fear and angst among science writers when the first stage of the litigation was allowed to continue. This very sensible decision of the EWCA  (what seems to me to be a very impressive bench of Lord Judge, LCJ, Lord Neuberger MR and Sedley LJ) overturns the previous decision, and holds that in context what Singh had said about the BCA claims being made "with not a jot of evidence" and "bogus" claims were clearly fair comment and not just statements of fact.
        The court also made some telling comments on some of the detrimental consequences of the initial ruling:
       
        "11.              It is now nearly two years since the publication of the offending article.  It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ.  Accordingly 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.  If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved.  This would be a surprising consequence of laws designed to protect reputation. 
       
        12.              By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh's contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics.  Again, if that is where the current law of defamation takes us, we must apply it."
       
        Thankfully the CA ruled that the law did not go there, and that what had been said was a good example of "fair comment". They even concluded their judgment by suggesting that it might be a good idea in future for the English courts to adopt the description of the defence used in some overseas statutes (such as, for example, s 31 of the Defamation Act 2005 (NSW) and elsewhere in Australia under our current uniform laws) of "honest opinion".
       
        Technically the case should now go back to the trial judge for further stages, but I would suspect that there might be a settlement at this point.
       
        Regards
       
        Neil F
       
       
         Neil Foster
        Senior Lecturer, LLB Program Convenor, Newcastle Law School Faculty of Business & Law
        MC158, McMullin Building
         University of Newcastle Callaghan NSW 2308 AUSTRALIA
        ph 02 4921 7430 fax 02 4921 6931
        http://www.newcastle.edu.au/staff/profile/neil.foster.html
        http://works.bepress.com/neil_foster/
       
       
       
       
       
       
       
       
       


 Neil Foster
Senior Lecturer, LLB Program Convenor, Newcastle Law School Faculty of Business & Law
MC158, McMullin Building
 University of Newcastle Callaghan NSW 2308 AUSTRALIA
ph 02 4921 7430 fax 02 4921 6931
http://www.newcastle.edu.au/staff/profile/neil.foster.html
http://works.bepress.com/neil_foster/