Simon SinghIf there’s one thing I’ve learned in my years promoting skepticism and science in medicine and writing critically about various forms of unscientific medical practices and outright quackery, it’s that there will always be pushback. Much, if not most, of the time, it’s just insults online. However, occasionally, the pushback enters into the realm of real life. I can remember the very first time this happened to me. It was in 2005, and a man by the name of William P. O’Neill of the Canadian Cancer Research Group sent legal threats to my Department Chairman, my Division Chief, and my Cancer Center Director. The legal threat was clearly vacuous, as Mr. O’Neill seemed upset mainly that I had praised his arch-nemesis, Australian skeptic Peter Bowditch (who even keeps a running tally of threats he receives from Mr. O’Neill under the heading The GAL Chronicles, where GAL stands for “gutless anonymous liar”). I must admit, at the time it scared the crap out of me, but the reaction of my Chairman at the time, Dr. Stephen Lowry, was classic in that he said he did not care what I did in my spare time and referred to Mr. O’Neill as a “cowardly bully.” From then on, every time Mr. O’Neill tried something similar, I simply replied that I was forwarding his e-mail to Dr. Lowry (who was amused by all this) and thanked him for his concern.

More recently, J.B. Handley wrote a rather ugly screed (one of two, actually) about me. Somehow, this screed was e-mailed to my cancer center director. Whether Mr. Handley, one of the crew at Age of Autism, or an AoA reader did it, I don’t know. However, it is typical behavior of the anti-vaccine movement. Based on this history, I’ve concluded that, if you’re going to be a skeptic you’d better be prepared for this sort of thing, and if you’re going to blog under a pseudonym you’d better expect that sooner or later someone will try very, very hard indeed to “out” you and use that against you–which is of course blogging at SBM is in a way liberating in that it removes that threat.

However, whatever obnoxiousness or attempts to harass me at my job I may on occasion have to worry about, one thing I don’t have to worry about (much) is legal threats, at least as long as I keep all my ducks in a row, so to speak. In the U.S., libel is a very difficult charge to prove. The First Amendment gives wide latitude to free speech, and that places the burden of proof on the plaintiff to show that a statement is defamatory, with libel being in essence written defamation. In general, this is what constitutes defamation in the U.S.:

In order for the person about whom a statement is made to recover for libel, the false statement must be defamatory, meaning that it actually harms the reputation of the other person, as opposed to being merely insulting or offensive.

The statement(s) alleged to be defamatory must also have been published to at least one other person (other than the subject of the statement) and must be “of and concerning” the plaintiff. That is, those hearing or reading the statement must identify it specifically with the plaintiff.

The statement(s) alleged to be defamatory must also be a false statement of fact. That which is name-calling, hyperbole, or, however characterized, cannot be proven true or false, cannot be the subject of a libel or slander claim.

The defamatory statement must also have been made with fault. The extent of the fault depends primarily on the status of the plaintiff. Public figures, such as government officials, celebrities, well-known individuals, and people involved in specific public controversies, are required to prove actual malice, a legal term which means the defendant knew his statement was false or recklessly disregarded the truth or falsity of his statement. In most jurisdictions, private individuals must show only that the defendant was negligent: that he failed to act with due care in the situation.

A defamation claim — at least one based upon statements about issues that are matters of public interest — will likely fail if any of these elements are not met.

As you can see, it is a high bar of evidence to overcome to prove libel. Of course, that is a two-edged sword in that it allows J.B. Handley to slime me whenever he wishes, with little I can do about it, but I am also allowed, as I see fit, to respond or not to such attacks. I can also continue to criticize anti-vaccine propagandists like Mr. Handley as I see fit. Unfortunately, for my U.K. colleagues, the same is most assuredly not true in British courts, where the rules are very much weighted against the defendant. Witness this travesty of a ruling on the libel case against Simon Singh, coauthor with Edzard Ernst of Trick or Treatment: The Undeniable Facts about Alternative Medicine (which Harriet Hall reviewed last year) by the British Chiropractic Association, as related by Jack of Kent. This ruling came about because the BCA did not like an article that Singh wrote for The Guardian entitled Beware the spinal trap.

I first learned about the UK’s exceedingly plaintiff-friendly libel laws when, shortly after I first became interested in Holocaust denial, I followed the libel case against Holocaust historian Professor Deborah Lipstadt brought by Holocaust denier David Irving for, well, quite properly calling him a Holocaust denier in one of her books. Although the definition of libel and defamation are similar in British law to what they are in U.S. law, what makes British libel laws so plaintiff-friendly is that the burden of proof is very low for the plaintiff compared to the United States. Indeed, in practice it is not generally necessary for the plaintiff to show that what was written by the defendant about him is untrue (or written with a “reckless disregard for the truth”), only that it might damage his reputation (i.e., is potentially defamatory). Thus, far more than in the U.S., the burden of proof falls largely on the defendant to demonstrate that what he or she wrote about the plaintiff is true. Professor Lipstadt describes her reaction to being notified of Irving’s lawsuit in her book describing her ordeal, History On Trial: My Day in Court with David Irving:

Now, sitting in my Emory office, I wondered who could possibly take David Irving’s claims that he was not a denier seriously. Certainly this had to be just a ploy to intimidate me. Over coffee, I told some colleagues about the letter and predicted it would go nowhere.

As it turned out, I was wrong on all counts. Irving would take this very seriously, as would the British courts. The fact that my sources were all documented did not protect me in the United Kingdom, as it would have in the United States. In fact, I was at a decided disadvantage. British law placed the burden of proof on me as the defendant. It was a mirror image of American law. In the United States, Irving would have to prove I lied. In the United Kingdom, I had to prove I told the truth.

She writes later:

During Anthony’s [Anthony Julius, Lipstadt’s defense attorney] visit, I received a crash course in British libel law. It presumes defamatory words to be untrue until the author proves them true. The burden of proof is, therefore, on the defendant rather than the plaintiff, as would be the case in the United States.

That is the situation in which Simon Singh now finds himself, ten years after Professor Lipstadt did. It’s a different skeptical topic, but the same predicament, thanks to the insane nature of British libel law.

It is true that Professor Lipstadt did ultimately win her case. Her victory was all the more impressive given how plaintiff-friendly British libel law is and how, for all practical purposes, she had to “prove that the Holocaust happened” in court and then to show in excruciating detail with copious evidence exactly how and why what David Irving writes and says about the Holocaust constitutes Holocaust denial. Unfortunately, it took many months to accomplish this and a couple of million dollars. If Lipstadt’s publisher hadn’t stuck with her (and there was an indemnification clause in her contract with her publisher that would have allowed it to leaver her hanging in the breeze if it had so chosen), she’d have probably had to settle. Indeed, that was almost certainly David Irving’s expectation when he brought the case–that Professor Lipstadt would settle. She did not and, fortunately, won big. It could have gone the other way if she had had a less skillful legal team and, more importantly, if Irving hadn’t made a characteristically supremely hubris-filled decision to represent himself in the case. Even as it was, she incurred significant legal expenses on her own and had to raise money for her legal defense.

Since I’ve become interested in “alternative” medicine, I’ve seen examples of similar abuses of U.K. libel law, in which various “alternative” practitioners tried to use the law to silence bloggers whose opinions they did not like or writers who criticized them. The most famous example of using British libel law to attempt to silence a blogger/columnist that comes readily to mind is how HIV/AIDS denialist and vitamin magnate Matthias Rath went after Ben Goldacre after Goldacre had criticized him for taking out full page ads in South Africa for his vitamin pills as AIDS cures. Again, it’s true Goldacre won and ultimately published a chapter out of his book about Rath that he had had to remove from it because Rath was, as Goldacre put it “suing my ass in High Court.” However, this happy ending only came about because Goldacre’s newspaper stuck by him and paid for his legal defense. Even with his newspaper’s support, he might have lost. The truth is an absolute defense against libel, even in the U.K., but proving it can be exceedingly difficult.

Others, who have not had the resources of Professor Lipstadt or Ben Goldacre’s newspaper, have not been so lucky. For example, an excellent British skeptical blogger, Andy Lewis (a.k.a. Le Canard Noir), who runs the excellent and amusing Quackometer, has faced this problem twice. In the case of Le Canard Noir, libel law intersects with Internet law so that it’s very easy for a quack to threaten the ISP of a blogger with cease-and-desist letters claiming defamation, and, thanks to less robust common carrier protections for ISPs in the U.K. and the U.K.’s ridiculously plaintiff-friendly libel laws, most ISPs will cave and remove the post. Lewis is honored in that he managed to provoke the Society of Homeopaths into making just such a threat in response to a post by him entitled The Gentle Art of Homeopathic Killing, in which he lambasted the Society of Homeopaths for not even enforcing their own ethical guidelines with respect to homeopaths making claims that homeopathy can prevent or treat malaria. The result was that the post was taken up and reposted all over the blogosphere from Google caches.

Next, the “little black duck” was threatened by a master woo-meister named Dr. Joseph Chikelue Obi (who bills himself as the “world’s top expert in nutritional immunomudulation,” “alternative medicine top dog,” and has claimed to produce “his own brand” of clinical trial methodology for alternative medicine) who threatened Le Canard Noir’s webhost with a lawsuit, demanding a £1 million a day penalty unless pages about him and his highly dubious activities are removed from their server in response to a post entitled Right Royal College of Pompous Quackery. The result was similar. Finally, I’m personally aware of one British blogger who was threatened with a libel suit by a wealthy promoter of pseudoscience; he, having trouble coming up with enough money to pay a lawyer for a couple of billable hours to look at his case and draft a response letter (which he barely managed to do), was forced to remove his post and apologize.

Finally, here is the legal intimidation coming from the British Chiropractic Association, which, as many may know, is suing Simon Singh for this passage in an article he wrote:

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.

In the U.S., it’s highly unlikely that a lawyer would even be willing to take this case as anything other than cash on the barrelhead, so slim would be the chance that it would make it even past a preliminary hearing. Yet, Thursday and Friday, Singh has had his first preliminary hearing and his first loss. And it was a devastating loss, as explained by U.K. legal blogger Jack of Kent:

As part of libel litigation, the court does have to rule as to the meaning of the relevant passages. This ruling in turn provides which are the appropriate defences. If it is ruled that the passage was “comment” then the defendant has to prove that it was a “fair comment”. If the passage was a statement of fact, then the defendant has “justify” the fact.

So far, this is not unlike the U.S. in that the judge was trying to sort out a claim of fact from an expression of an opinion. Here’s where the ruling went off the rails:

The judge ruled that, notwithstanding that the passage in Singh’s article was a comment piece and published on the comment page, it was a statement of fact. This was an unhelpful ruling, and my heart sank for a moment, but it was not one for which Singh was unprepared. Singh would have preferred to have had a comment ruling, but he did have a full justification defence too, see here. So not ideal, but not a disaster.

But the judge continued. The word “bogus” meant deliberate and targeted dishonesty. So it did not mean that chiropractic for the six named children’s ailments (including asthma) was simply wrong, or that it was contrary to established medical practice or research, or even that it completely lacked evidence.

“Bogus” meant a lot more. The judge held that by the mere use of the word “bogus” Simon Singh was stating that, as a matter of fact, the BCA were being consciously dishonest in promoting chiropractic for those children’s ailments.

It doesn’t matter that Singh had earlier in his article defined “bogus” as “ineffective,” not as “deliberate and targeted” dishonesty. In essence, the judge defined the word and went beyond even what the BCA was arguing. The consequence of Sir Eady’s ruling is this:

The ruling means that, as it stands, Simon Singh would have to prove at full trial that the BCA were being deliberately dishonest. This is not only extremely difficult but it was undoubtedly not Simon Singh’s view in the first place. The BCA, as with many CAM practitioners, may well be deluded, irresponsible, and sometimes rather dangerous; but calling their promoted treatments “bogus” was not an express statement of their conscious dishonesty.

Indeed, unless there is hard evidence of dishonesty, it may not even be professionally possible for Simon Singh’s lawyers to put the required case to the court: English barristers and solicitors are prohibited from alleging fraud unless there is sound and cogent evidence before them on which to base the allegation.

Basically, it would be very unwise and perhaps impossible for Simon Singh to go to full trial with this ruling on meaning.

This ruling puts Singh in a very, very difficult situation and makes it almost impossible for him to prevail in court if he takes the case to trial. In the wake of this nonsensical ruling, Singh apparently has three options. Option one: He can appeal the ruling on the meaning of the word “bogus,” which has a high probability of failing, given that higher courts generally defer to the lower courts on such matters. Option two: He can take his case to the European Court of Human Rights as a breach of Article 10 (freedom of expression), something that he can’t do unless he first appeals and continues his appeals until he exhausts all of his legal options in British courts. Such an appeal to the E.U. could take three years and lots of money, and there is no guarantee that this will succeed, either. Or…

Option three: Settle.

Sadly, this is probably the most rational option, based on the evidence alone and Sir David Eady’s ridiculous ruling. Unfortunately, Sir Eady is well known for such nonsensical legal rulings; so it is unlikely that he will be any less nonsensical if this case goes to trial. Moreover, based on his finances, Singh may have no choice in the matter but to settle. I hope he doesn’t settle, but I understand if he does. He has such an uphill battle from here that it may not make sense to continue. If he does, however, I wonder if there is a legal defense fund to which skeptics and supporters of science-based medicine may contribute. I’d be willing to make a contribution, for sure. Unfortunately, unless Singh is made of money, option three is clearly the option he will most likely be forced to take.

What of the broader picture? Clearly the U.K., due to its plaintiff-friendly libel laws, is already a rather inhospitable place for skeptical bloggers and writers. In essence, if Sir Eady’s ruling stands, arguably now it’s not even necessary to make an actual factual claim in order to find your at the wrong end of a libel suit by a powerful and wealthy organization, with little help. In fact, even if you define a word you are using for purposes of your criticism of “alternative” practices, apparently that doesn’t necessarily protect you from a judge’s defining the word as he sees fit.

Think about it. All Singh did was to make two arguments:

  1. “Group A is enthusiastically promoting treatment X.”
  2. “Treatment X is ineffective against conditions Y, and Z.” (Or: “There is no scientific evidence to support the efficacy of treatment X for conditions Y and Z.”)

Or, a simpler and more relevant way to rephrase what Singh wrote:

  1. “Group A is enthusiastically promoting treatment X.”
  2. “Treatment X is bogus.”

It’s a non sequitur to conclude from 1 and 2 that group A is being deliberately dishonest. Certainly, that is one possible explanation for its promotion of treatment X, but it is not by any means the only explanation. An alternate, arguably even more likely, explanation is that group A truly believes in the bogus treatment X and is honest, but mistaken, in its belief. Indeed, in my experience, that is probably the case for the vast majority of practitioners of “complementary and alternative” medicine (CAM). Most are not hucksters and frauds (although, make no mistake, there are many hucksters and frauds in CAM), but rather true believers in modalities that have little or no science to support them. I also can’t help but point out that, if the BCA actually had the science on its side, it would be very easy for it to produce it. Instead, it goes straight to trying to stifle criticism that it doesn’t like without producing one whit of scientific evidence to try to refute that criticism. Clearly, the BCA is nothing more than a bunch of cowards and bullies, unconcerned about science. Science thrives on argument, dissent, and testing ideas against reality. The only reason the BCA resorts to the courts is because its woo cannot stand up to scientific debate and scrutiny.

Disturbing to me is that I’ve made the same sort of argument as Singh has on more occasions than I can remember over the last nine years or so. If I were in the UK and happened to make it about a litigious group, I could easily find myself in the same pickle that Singh is in. As The Lay Scientist puts it:

Simon Singh is the victim on this occasion, but if this nonsense continues, then the conditions in which the rest of us – writers and bloggers like myself or Ben Goldacre – have to operate will become ridiculously savage. We’re already at a massive disadvantage from the fact that it takes ten seconds to make a claim and ten hours to carefully prove it wrong. Now the legal system is ensuring that it costs ten pence to make a dodgy medical claim and ten thousand pounds and a court case to attack it.

It is true. Be it skeptics taking down pseudoscience about evolution or supporters of science-based medicine taking down quack claims, it is the skeptical side that is always at a disadvantage. It is very easy to make bogus claims and often takes a lot of work to demonstrate how and why said bogus claims fail from a scientific and logical standpoint. Morever, it’s very easy for a crank, be he a creationist, a 9/11 Truther, a Holocaust denier, a supporter of unscientific medical modalities, or even an outright quack, to do what is known among supporters of evolution against creationism as the Gish Gallop, which in essence involves making so many nonsensical claims that a skeptic can’t possibly refute them all (and in fact may not even be familiar with them all). Add to that the threat of legal action in the U.K., and I don’t know how people like Simon Singh, Ben Goldacre, Andy Lewis, Martin Robbins, the bloggers at Holford Watch, David Colquhoun, and other public supporters of science-based medicine in the U.K. manage. I also admire them all. If I lived in the UK, I don’t know if I would have intestinal fortitude to keep blogging if Singh is forced to settle or appeals and loses.

Worse, the insanity that is British libel law doesn’t just limit itself to the U.K. If a publisher has assets in the U.K., a plaintiff can bring a case in the U.K. Indeed, there is a term for abusing plaintiff-friendly laws in the U.K. and other jurisdictions to silence writers who may not even live or publish in the U.K.: Libel tourism. It may not be just U.K. skeptics who need to beware. For example, in the most famous case of libel tourism, that of Rachel Ehrenfeld, who wrote Funding Evil: How Terrorism Is Financed and How to Stop It, a wealthy Saudi businessman whom Ehrenfeld had accused in her book of being a funder of terrorism, Khalid bin Mahfouz, sued in Britain and won a sizable amount of money. British courts accepted the case, even though the book was never published in the U.K.. However, 23 copies were purchased online and shipped to the U.K. That was enough for British Courts to claim jurisdiction. Ironically, the judge who ruled on the case was Sir Eady, who ordered Ehrenfeld to apologize, retract and pay bin Mahfouz $225,913 in costs and damages. One wonders whether the fact that anything written on a website or a blog can be read in the U.K., regardless of where its publisher lives or where it is hosted, would be enough for British courts to claim jurisdiction if the plaintiff is a British citizen.

It’s times like these when I truly cherish the wisdom of our Founding Fathers for having enshrined freedom of speech in the Constitution as part of its First Amendment. It’s hard enough to defend science-based medicine by speaking out against quackery without worrying about a legal system that makes it very easy for the quacks to sue you for for everything you have, even if science and the facts are on your side.

Posted by David Gorski

Dr. Gorski's full information can be found here, along with information for patients. David H. Gorski, MD, PhD, FACS is a surgical oncologist at the Barbara Ann Karmanos Cancer Institute specializing in breast cancer surgery, where he also serves as the American College of Surgeons Committee on Cancer Liaison Physician as well as an Associate Professor of Surgery and member of the faculty of the Graduate Program in Cancer Biology at Wayne State University. If you are a potential patient and found this page through a Google search, please check out Dr. Gorski's biographical information, disclaimers regarding his writings, and notice to patients here.