Published 3 June 2009, doi:10.1136/bmj.b2254
Cite this as: BMJ 2009;338:b2254

Editorials

Science in court

Does English libel law threaten scientific debate in health care?

Professor Sir Muir Gray, in his book Evidence-based Healthcare¹ tells the old joke about the epidemiologist up in court on a serious charge. "How do you plead? Guilty or not guilty?" asks the judge. "I don’t know: I haven’t heard the evidence yet."

Recent events bring comedy, evidence, and law together as Ricky Gervais, Richard Dawkins, and Sir Iain Chalmers join together in a campaign that weds scientific rigour to free expression. On Wednesday of this week, leading academics, publishers, journalists, performers, clinicians, and scientists issued a public statement² backing science writer Simon Singh in his application to appeal against a libel judgment in the High Court. They fear that this judgment—if upheld—would have major implications for the ability of scientists, researchers, and other commentators freely to engage in robust criticism of scientific, and indeed purportedly scientific, work.

Singh, well-known for his books on Fermat’s last theorem and the big bang, wrote an article on 19 April 2008 in the Guardian newspaper criticising claims made by chiropractors about the efficacy of spinal manipulation in dealing with childhood conditions such as asthma, colic, and ear infections, among others. He suggested there was "not a jot" of evidence to support such interventions for these ailments, and complained that the British Chiropractic Association "happily promotes bogus treatments". The British Chiropractic Association has sued for libel.

On 7 May 2009, Mr Justice Eady issued a ruling³ on two preliminary matters. First, on the question of what meaning to give to the words in Singh’s article, he upheld the assertion of the British Chiropractic Association that the words meant that it knowingly promoted a treatment that they knew to be a sham. An alternative meaning—more helpful to the defence—might be that the association was promoting something that, although ineffective, it sincerely believed to be effective. This would not carry the same implication of dishonesty. Second, and as a consequence of the first, the judge decided that the words represented a statement of verifiable fact, and that Singh therefore could not benefit from a "fair comment" defence. Singh has stated that, under the judge’s interpretation, it would be difficult for him to win the case.

There have been several cases where individuals and commercial interests, including pharmaceutical companies, have sought to prevent the publication in scientific journals of opinions that they believe to be defamatory. By their very nature, examples of such censorship are not readily apparent to readers.

Scientific publishers are subject to the same libel laws as everyone else. They struggle to find the right balance between a "safe" approach that amends or withdraws a proposed publication under threat of legal action and a more "courageous" one that seeks to protect the right of scientists and clinicians to engage in robust criticism of research work, pharmaceutical products, or medical devices.

What Singh’s case reinforces is the increasing recognition that the libel laws in England and Wales give major advantages to the plaintiff, leading to "libel tourism," with libel cases being brought by foreign business people against authors, themselves often also based abroad, in the courts of London. The jurisdictional reach is then justified on the basis of a handful of copies of the author’s work having been sold in England, or on its being available on the internet. The advantages to the plaintiff under English law include a reversal of the usual burden of proof and a more limited range of defences being available than elsewhere, especially in respect of public interest.

The House of Commons, despite its current travails, has at least found time to attend to this matter, both in debate⁴ and in current enquiry by the Culture Media and Sport Select Committee.⁵

However, it is not clear that the government has any intention of changing the law—as can be seen from secretary of state for justice Jack Straw’s evidence to the committee’s inquiry.⁶ All the government is carrying out at present is a review of the costs of defending defamation cases,⁷ but it has also suggested a review of libel law and the internet.⁶ The UK parliament is notoriously slow to protect free speech, given, for example, that it took centuries before the law of blasphemous libel was abolished last year.⁸ Indeed only this week I, along with free speech advocates, held a meeting with the same justice secretary to press him to abolish the ancient laws of seditious libel and criminal defamation—neither of which allow truthfulness of the publication to be a full defence to the charge.

It is remarkable that the plaintiffs in this case are representatives of healthcare practitioners, who could, one would expect, make their case in peer reviewed scientific literature as well as through the usual letters columns of whatever newspaper they believe has treated them unfairly. Resorting to litigation against a writer, rather than the writer’s publisher, gives the impression that the British Chiropractic Association is seeking to "chill" criticism of the treatments that it promotes, or of the practitioners who make efficacy claims about such treatments.

It is hard to imagine the British Medical Association, even at its most reactionary, bringing libel proceedings against a commentator for deprecating the good name of doctors in its columns. If it did, neither the British Medical Association nor the Daily Mail would ever be out of the courts.

The fundamental point is that it is essential in the scientific sphere, and in particular in the world of medicine, for claims of efficacy to be subject to the most stringent examination and criticism. In the field of health care, the consumer is particularly vulnerable to false promises of cure or symptomatic relief, and all practitioners—especially those in the private sector—need to be able to justify their claims in a transparent and scientific way. If that debate is chilled, then the medical profession, patients’ interests, and scientific discourse are severely undermined.

Cite this as: BMJ 2009;338:b2254

¹ House of Commons, London SW1A 0AA

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Competing interests: EH is a Liberal Democrat Science Spokesman; International Board Member Article XIX.

Provenance and peer review: Commissioned, not externally peer reviewed.

References

1. Muir Gray JA. Evidence-based healthcare, 2nd edition. London: Elsevier Health Sciences, 2001.
2. Sense About Science. Right to science statement. 3 June 2009. http://www.senseaboutscience.org.uk/libelcampaign, .
3. High Court of Justice, Queen’s Bench Division. British Chiropractic Association v Simon Singh [2009] EWHC 1101 QB.
4. Hansard. HC Deb (2008-9) 485 col. 69WH. 17 Dec 2008. http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm081217/halltext/81217h0001.htm#08121766000001, .
5. Culture, Media and Sport Select Committee. Press standards, privacy and libel: new enquiry.18 Nov 2008. http://www.parliament.uk/parliamentary_committees/culture__media_and_sport/cms081118.cfm, .
6. Culture, Media and Sport Select Committee. HC275-x. 19 May 2009. http://www.publications.parliament.uk/pa/cm200809/cmselect/cmcumeds/uc275-x/uc27502.htm, .
7. Baldwin K. Government consultation intends to curb ‘excessive’ UK libel costs. Guardian 24 Feb 2009. http://www.guardian.co.uk/politics/2009/feb/24/uk-media-libel-costs, .
8. Beckford M. Blasphemy laws are lifted. Telegraph 10 May 2008. http://www.telegraph.co.uk/news/1942668/Blasphemy-laws-are-lifted.html, .

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