Bittersweet justice for Singh

Simon Singh MBE, the celebrated science writer and documentarian, has officially won his libel tilt with the British Chiropractic Association. In April 2008 Singh wrote a column for the Guardian about the persistence of pre-scientific ideas in the British chiropractic trade. What most people now think of as merely an expert form of massage began with the claim that spinal maladjustments were the source of virtually all disease in humans, and some chiropractors still believe they can cure a lot more than back and joint pain. Singh wrote:

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.

(Singh’s column went on to discuss the controversy surrounding the 1998 death of Saskatchewan chiropractic patient Laurie Jean Mathiason.)

English libel law is so tough on defendants that the world’s rich and offended will torture jurisdictional logic to the point of incoherence if it means their complaint can be heard in an English courtroom. But the BCA had it easy; Singh was trapped right there on the island with them. They took him to court. And only him; they chose not to name the Guardian in their claim at all.

English libel requires the judge to issue pre-trial rulings on the meanings of offending passages. Singh, whose piece had appeared in the Comment section of the Guardian, argued before Sir David Eady that his use of the word “bogus” meant only that there is no good evidence for the effectiveness of the impugned treatments. But the judge not only closed off the fair comment defence; he ruled, without giving much indication that he was paying close attention to the arguments or the relevant text, that the term denoted conscious and deliberate dishonesty. This shifted a frightful burden of proof onto Singh, requiring him to show not only that British chiropractors were offering useless and unverifiable treatments, but that they did so with the certain and specific knowledge that they were useless and unverifiable.

It became clear almost immediately that the BCA had overplayed its hand. Eady’s ruling rightly raised a worldwide clamour against the depraved state of the law and the health of free inquiry in the land of Newton and Darwin. (This has helped put libel reform on the agendas of all major parties in the current UK election.) It is, after all, almost not enough to say that science “depends” on the freedom to make tough evidentiary criticisms; considered socially, science is practically equivalent to the possibility of making them. Meanwhile, the beam of a million-watt searchlight had been attracted to the claims and conduct of the British chiropractic business. In a canonical demonstration of the Streisand Effect, the country’s statutory regulator of chiropractic, which holds the activity and advertising of practitioners to an explicitly scientific standard, was obliged to launch literally hundreds of investigations into strip-mall spine-crackers.

The harm that British chiropractic has done to itself is incalculable; meanwhile, it has had to give up hope of impoverishing Singh, who had Eady’s ruling overturned by the England and Wales Court of Appeal on April 1. In asking a public controversy concerning a question of evidence to be a matter for a libel suit, wrote the Lord Chief Justice, the BCA was inviting the court to serve as “an Orwellian ministry of truth”. The court, he added, must decline to do so. (He did not neglect to throw in a pinch of old John Milton and his Areopagitica.)

One ought not to admonish the BCA for abandoning its libel action; it was self-evidently the right thing to do. But what does it say about British libel law that the Association did so almost immediately once the fair comment defence was made available to Singh—a commentator by profession, one whose standing to assess and challenge scientific evidence could hardly be higher? Just one month ago, Singh announced that he would be ceasing his newspaper column for good. One hopes he will reconsider, but it is still uncertain that he will recover his own defence costs, and the time and effort he has expended will never be recouped.