Saturday, 3 April 2010

Simon says: fair comment

The Court of Appeal gave judgment on the Simon Singh defamation appeal on Thursday, just before the Easter break, a judgment given by the strongest bench that the Court of Appeal could muster (leaving out of account the excellent Lord Justice Laws1, who gave leave to appeal). The fact that such a strong bench sat on the appeal shows the importance which the court attached to the case, not surprisingly and rightly given the furore that the decision of Mr Justice Eady at first instance has caused. Eady J's decision was a ruling on a preliminary matter in defamation proceedings brought by the British Chiropractic Association against Dr Singh. The preliminary matter concerned the scope of the meaning of the defamatory words concerned and whether they comprised a statement of opinion to which the defence of fair comment could be pleaded or whether they comprised a statement of fact which would (if defamatory) require to be proved as true for Dr Singh to avoid a finding against him.

The Court of Appeal's judgment can be found here. It sets out the relevant parts of the Guardian article penned by Dr Singh as follows:
"You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station. 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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

"I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world's first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions"
The British Chiropractic Association sued Dr Singh for defamation over this. As a company limited by guarantee they were able to do so since limited companies have a notional reputation in law which is protected by the law of defamation. Dr Singh pleaded the defence of fair comment.

The defamatory words comprised Dr Singh's claim that the BCA "happily" promote "bogus" treatments. Mr Justice Eady held these words comprise an allegation of fact that the BCA promote false and ineffective treatments knowing them to be false and ineffective, something which would be very difficult for Dr Singh to prove, not least because it is most probably not true: the BCA are no doubt honest even if they may or may not be misguided. This ruling of Eady J was despite the second paragraph cited above from the Court of Appeal's judgment in which Dr Singh gave his reasons to support his statement, which it is not even clear that Eady took into account.

To see the relevance of that second paragraph, it is necessary to understand that in order for a defendant to succeed in the defence of fair comment, he or she must show that the defamatory words comprise a statement of opinion about a matter of public interest which is within the range of opinion that a reasonable and fair-minded person could hold, on the basis of stated facts which can be shown to be true, or sufficiently true to support the opinion stated. If the factual basis for the opinion is not stated, or the statement of opinion is so mixed in with statements of fact as to make it unclear to the ordinary reader that the defamatory words are mere opinion, then the defence fails and the defendant has to prove the truth of the statement(s) to avoid liability. For example, to say in the presence of others "I think X is a thief" without anything else is treated in law as a defamatory statement of fact that the person is a thief. To say "I think X is a thief because I saw him entering Mrs Jones's house by breaking a window, and leaving 5 minutes later with a bag marked 'Swag'" is a statement of opinion in relation to the characterisation of X as being a thief, for which a defence is available if it is true that the defamer saw the things which he said he saw and the comment was about a matter of public interest.

One instinctively thinks the statement complained of by the BCA isn't the kind of thing the law of defamation was intended to deal with. It is a matter of epidemiology and of public health interest which it is to be hoped could be openly discussed in an open society, albeit in this case expressed in colourful language. The Court of Appeal so held and determined that on matters of scientific or medical controversy a statement of opinion can remain a matter of opinion even if not very obviously accompanied by statements of claimed fact to support them. To that extent, the court could be said to have extended the range of things that will be considered to be statements of opinion rather than fact for the purposes of the fair comment defence.

I have three supplementary points on this case. The first (which lawyers will be interested in) is why Dr Singh did not also plead the Reynolds defence of responsible journalism. This defence relies on a different branch of the law of defamation, namely qualified privilege: it may be that it was not pleaded because before the article was published the Guardian did not seek the BCA's views, therefore not meeting Lord Nichol's indicative tests set out in the Reynolds case. However, the Court of Appeal's judgment seems to be part of a slow merger of the defences of fair comment and qualified privilege, which is likely to occur over the coming decades.

Secondly, this case will probably go down as a textbook example of when not to sue. The BCA can only come out of this with nominal damages even if they do win, which now looks difficult for them. They will portray themselves as bullies attempting to stifle dissent by penalising Dr Singh with costs, particularly as, as the Court of Appeal observed "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". Furthermore, this litigation will serve to bring Dr Singh's allegations about chiropractic's effectiveness in the areas he mentioned to public attention. People will think "If they had to try to nip this in the bud, there must be something in it". In short, the decision of the BCA to bring this case is one of lunacy when viewed in the wider picture. The BCA say they are considering applying for leave to appeal to the Supreme Court. Now he has got a national platform, Dr Singh may be thinking along Dirty Harry lines: "Go on punks, make my day".

Thirdly, one must question the way in which Mr Justice Eady held (or failed to hold) the balance between the right of the individual to reputation and privacy on the one hand (article 8 of the European Convention on Human Rights) and the right to freedom of expression on the other (article 10 of the ECHR) in this case. As I commented here, he has been the subject of some mainly unjustified attacks in the press, but on this occasion he simply went too far with an astonishingly illiberal decision at first instance.

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1 By a twist of fate, it was Laws LJ who in an earlier incarnation, as junior Treasury Counsel, acted for the government in trying to suppress publication of Peter Wright's Spycatcher book in Australia. I suspect he knew he was going to lose in a set of very difficult and trying circumstances, but no doubt it was a rounding-out experience.