Libel laws are wrong, not bogus, argues regular columnist Wendy Grossman
Tomorrow, as I write this, is the launch of the Westminster Skeptics; the day after is the date of Simon Singh’s court appearance. The former is a sort of preparatory rally for the latter, since the speakers will include Singh and Ben Goldacre, both butts of libel suits over their various discussions of “alternative” therapies. The problem for all of us is this: how do we discuss science-related claims critically without falling afoul of England’s world-beating libel laws?
Exactly what Singh said in the Guardian about chiropractors has been analysed (and republished) in many places throughout the British media. The brief summary: he took them to task for promoting chiropractic as a remedy for six childhood ailments despite evidence that it’s ineffective. Somewhere in there, he used the word “bogus”. He went on to explain what he meant by it in the next paragraph – he did not mean that they were dishonest – but the BCA sued both Singh personally and the Guardian corporately on behalf of its members. The judge in the case, who has presided over some of the most famous and disputed libel cases in recent years, ruled that he meant something rather different and more actionable. Almost everyone was shocked by the judgement; the exceptions in my acquaintance were two lawyers well versed in English libel law, who took the view that the judgement was legally correct, even if no one likes it.
The Guardian extricated itself rather quickly; there’s a limit to how many libel actions it can afford and it’s got some other battles going on already. I would guess that the BCA imagined that Singh, like most writers, would be too poor and too intimidated to pursue the matter on his own.
Unfortunately for the BCA, Singh has several bestselling books in his back list, a pugnacious attitude, and noisy friends. Since the judgement, therefore, the BCA has found itself under far more public and unyielding criticism, and a campaign has been launched to get libel laws out of science. MPs are beginning to take note, and it’s just possible that reform of libel law may come out of this.
The question that I imagine will have to be answered is this: how far out of science should libel laws be kept? Libel lawyers defend the law: you can’t allow people to say anything they want without redress for people who have been harmed. Scientists and skeptics tend to feel that disputes about scientific claims ought to be exempt on the grounds that it’s a matter of public interest whether a treatment offered to help cure colic and frequent ear infections is effective or not. Otherwise, you could find yourself in a libel suit for having poorly phrased an attack on the view that the earth is not flat.
Somewhere in between those extremes is where the line will eventually be drawn. One possibility might be to exempt categories of critics – say, scientists and media (like MPs in Parliament). I don’t like this idea personally because the boundaries of these categories are muddy. You would presumably identify scientists by requiring them to work for an accredited institution; that would eliminate someone who, like James Randi, is vastly knowledgeable but uncredentialed. Similarly, if you require journalists to work for some sort of accredited media organisation you eliminate freelances much of the time, and also bloggers and others working in newer media.
It seems to me that the logical place to draw the line for exempt criticism is between the person and the person’s work. That is, it seems to me that ad hominem attacks should legitimately be covered by libel law, while critiques of claims and the (pseudo)science behind them should be exempt the way Parliamentary debates are exempt. That might actually still leave Singh’s original comments on the wrong side of the law, but it would be clear and understandable, and it would be something you could teach would-be journalists in a class or seminar. (That’s assuming there are any would-be journalists left after the financial collapse of traditional media.)
Of course, it’s never that simple. You still would not be able to call a fraud a fraud without risking having to prove your contention in court at vast expense. (Singh has a chart that shows that the cost of a libel trial in the UK is 100 times the cost of one in Europe.) And “bogus” would probably still be a dangerous word. But you could, under such a scheme, point out the lack of evidence for such treatments and their continued promotion and confidently expect not to receive a writ to shut you up.
In addition, therefore, I think it should be possible to mount a “public interest” defence that gives greater protection. Critics should, for example, have considerable latitude to discuss whether a treatment claimed to cure sick children actually does help them.
The really good thing that’s come out of all this – if you’re not a chiropractor – is that a much wider audience has been made aware of Singh’s critique of chiropractic than would have been had the BCA simply ignored him. If libel reform follows, the BCA will have done everyone except itself and its members a huge favour.