Libel under a microscope

HAVING a cause, as many litigants have discovered, is not necessarily the same as having a case. Simon Singh, somewhat to his surprise, has a cause. The science writer and television presenter generated a TV audience for mathematics in his 1997 BBC TV documentary on Fermat's Last Theorem and his subsequent Channel 4 series on codes and code breaking, The Science of Secrecy.

He has written several best-selling accessible science books including The Big Bang on the origins of the universe and was awarded an MBE in 2003 for his services to science, technology and engineering in education and science communication.

Now he spends much of his time writing about his own libel case, speaking at gatherings where half the audience is wearing T-shirts with his name on them or bearing the legend, "Keep Libel Laws Out Of Science" and worrying about the effect English law's approach to libel is having on free speech in science.

Mr Singh's own bolt from the blue followed an article he had written in the Guardian on 18 April 2008.

Singh had recently co-authored with Edzard Ernst Trick or Treatment? Alternative Medicine on Trial, attempting to review the evidence claimed for therapeutic benefit on behalf of various forms of complementary and alternative medicine. The Guardian ran his piece in its comment pages and by design or coincidence published it at the end of Chiropractic Awareness Week, organised by the British Chiropractic Association.

His piece included several critical observations of the effectiveness of chiropracty and the evidence for the effectiveness of its treatment and a writ from the British Chiropractic Association (BCA) soon followed.

The newspaper funded initial legal advice on Mr Singh's behalf. The advice was to settle and the paper offered the BCA space for a response and a clarification. The BCA declined the offer and persisted with a personal writ against Mr Singh but not the Guardian.

Mr Singh decided to defend the action and as a result has become something of an authority on the way in which libel laws in England are being used to skew or suppress review of research claims that should underpin public debate in science and medicine in particular.

"Libel in England has become a high-stakes poker game," says Mr Singh. "Any publisher has to make a calculation on whether to defend a writ not on whether they have a strong case but on whether they can afford the extraordinary costs of running a case to court."

He is funding his own case at the moment and has already had to find 100,000 to stay in the game. "I'm lucky to be in the position to be able to afford it so far," he says, "but there is a bigger issue about peer reviewing and criticism that is the lifeblood of scientific publication being stifled for fear of litigation. The problem with English libel laws is not so much that they stop me from writing about important issues, but rather that they stop you from reading about such issues."

While Mr Singh is picking up his own legal bills at the moment, the Sense About Science organisation has been campaigning vigorously on his behalf and focusing attention on the way in which it feels English libel law is affecting critical commentary.

Its spokeswoman, Sile Lane, reels off a list of publishers and writers who have backed down and removed reasonable comment when threatened with legal action. "At one extreme a group of ME sufferers who discussed the effectiveness of an untested therapy they had been given on an online forum were threatened by the manufacturer of that therapy. They took the forum down. At the other extreme, a consultant cardiologist, Peter Wilmshurt, is facing a libel action over comments he made about a clinical trial in which he was the joint principal investigator. The comments were made in the US to a journalist from a US-based medical website but the company is suing for libel in London."

Sense About Science has endorsed the ten-point plan published last week by Index on Censorship and English PEN that aims to fundamentally reform English law by broadening its definition of fair comment, reducing the expense of defending a writ by introducing a low-cost libel tribunal, and spiking London's attraction for forum shoppers by establishing a threshold that 10 per cent of the publication in dispute must have been distributed in the English jurisdiction.

Advocate Roddy Dunlop agrees there may be scope for redefining the concept of fair comment in Scotland too, though he is clear that the costs of raising or defending libel a libel case in Scotland is a fraction of those bandied about in England: "There is very little case authority on fair comment in Scotland but judges here have always made it clear they will tend to follow English authority," he says. "They have not thought it sensible to have different interpretations in Scotland and England on a story that might be published in identical form on both sides of the border.

Meanwhile, MR Singh's legal case appeared to have been holed below the waterline last May. At the preliminary hearing of the case in London Mr Justice Eady found as fact a very severe interpretation of the meaning of the words as published. He found they amounted to an accusation that the British Chiropractic Association had dishonestly promoted treatments that it knew to be ineffective. He found that Mr Singh's statements should be seen as statements of fact, not expressions of opinion.

Mr Singh appealed and last month Mr Eady's findings were overturned by Lord Justice Laws on the basis that they "risk striking the Strasbourg balance between the right of reputation and the right of free expression too far in favour of the former and against the latter".

It was an important skirmish to win. Mr Singh's solicitor, Robert Dougans, says: "Simon has showed a lot of courage in defending this claim. It is hard to get the Court of Appeal to set aside findings of fact made by a High Court Judge, so we are very pleased that they have decided even to look at this case. There are still a lot of hills to climb before the issue is resolved."