FYI: British Chiropractic Association has dropped its legal action against

Simon Singh.

http://news.bbc.co.uk/2/hi/science/nature/8621880.stm

Cheers, Katy

> I have to agree with Andrew's suggestion.  To my mind it clearly ties in

> with

> what Lord Judge states at [24]-[26], particularly the last sentence in

> [26]:

>

> '[BCA's counsel] ... simply relies upon the phrase "there is not a jot of

> evidence" as a plain assertion of fact upon which the allegation that the

> BCA

> happily promotes bogus treatments is founded. And she paraphrases

> "happily"

> as meaning "knowingly". Unless, therefore, Dr Singh can make good the

> assertion, Ms Rogers submits, he cannot begin to defend what follows as

> fair

> comment.

>

> We respectfully reject both the premise and the conclusion.

>

> 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.'

>

> The key thing I think is that there are facts, and then there are facts.

> If

> I said that BCA was promoting chiropractic rememdies for the plague, that

> would be an false fact.  If I said they were promoting chiropractic

> remedies

> for colic, that would be a true fact.  If I said they were claiming that

> chirpractic works for the plague, I would be making a statement of

> (incorrect) fact: that fact is that they are making a value judgement

> based

> on the available evidence, that plague is cured by chiropractic.  If I

> said

> they were claiming chiropractic remedies work for colic, I would be making

> a

> statement of (correct) fact: that fact is that they are making a value

> judgement based on the available evidence, that chiropractic remedies work

> for colic.  Now what Singh was doing was making a correct fact (he noted

> that

> BCA claimed, inter alia, that chirpractic can cure colic).  What he did

> was

> question the underlying methodology and conclusions reached thereunder, of

> that claim.  This is the value judgement based on the available evidence.

> Reaching Singh's conclusion, or the BCA's conclusion, 'is as much a value

> judgement as a contrary viewpoint would be.' If Singh had said there was

> no

> evidence, as in the sense of no studies done, that would have been

> libelous.

> It would have been a statement of incorrect fact.  But he didn't: he

> acknowledged the presence of such studies, and made the value judgement

> that

> they are not worth a jot.  Which is opinion, not fact.

>

> Having enraged/bored/confused, I should give the usual caveat: I last did

> defamation in my first year of law many moons ago, and not really looked

> into

> it since.

>

> Dr Sean Thomas

> Senior Lecturer in Law

> Anglia Law School

> Anglia Ruskin University

> Cambridge Campus

>

> sean.thomas@anglia.ac.uk

> extension number: 2478

>

>

>

> -----Original Message-----

> From: Andrew Tettenborn [mailto:A.M.Tettenborn@exeter.ac.uk]

> Sent: Wed 14/04/2010 09:52

> To: Hedley, Steve

> Cc: Neil Foster; obligations@uwo.ca

> Subject: [Spam?] Re: [Spam?] RE: [Spam?] Re: ODG- Defamation, BCA v Singh

>

> On 14/04/2010 08:40, Hedley, Steve wrote:

>>

>> 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-s

> top-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/

>>

>>

>>

>>

>>

>>

>>

> I see Steve's point, which is the absolutely sound one that fair comment

> applies to opinion only. If you go around stating disreputable facts

> relating to other people you've got to prove them, and it's no defence

> as such that what you said referred to a matter of public interest

> and/or that in your opinion it was true.

>

> But there might be a way round this that leaves Singh intact. Academic

> or scientific spats of the kind in evidence here could be regarded as

> arguments, not over facts, but over inferences. In Singh, the arguments

> is thus: is it or isn't it a fair inference from the evidence in the BMJ

> etc that chiropraxy doesn't work? Put that way, there's no difficulty

> with allowing in the plea of fair comment.

>

>

> Andrew

>

> --

> Andrew M Tettenborn

> Bracton Professor of Law, University of Exeter

>

>

>

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>

>

>

> LAWYER, n.

> One skilled in circumvention of the law. (Ambrose Bierce, 1906).

>

>

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