Using the law to stifle scientific debate
Maxine Clarke
Wednesday, 20 May 2009 09:39 UTC
A court case between one of Britain’s leading science writers and an organization representing alternative medicine practitioners is causing renewed concern about the potential for libel laws to stifle debate on scientific issues (Nature News, 13 May 2009).
Simon Singh, author of Fermat’s Last Theorem and other books, is being sued for libel by the British Chiropractic Association over an article he wrote for the Guardian newspaper last year. In an unusual move, the BCA is suing Singh personally, and not the newspaper.
The case has international implications for science reporting and journalism more generally, warns Singh. It comes against a background of increasing concern in many quarters that litigants opt for British courts as they are seen as easier places to get a favourable result; a problem labeled ‘libel tourism’.
Neil White, a partner at legal firm Taylor Wessing (which undertakes some legal work for Nature_), says the case should serve as a warning not just for science writers, but more generally for scientists and all who write about similar topics. “I think there is a degree of ignorance on the part of scientists about libel law, particularly UK libel law,” he says. “I do think there are some scientists who are rather arrogant about it, and think because they’re scientists with a view to express on a matter of potentially considerable importance they can say what they please. That is just not the case. The lesson I think they need to learn is you can usually say what you want to say in a way that doesn’t expose you to litigation, by taking a bit of care and taking a bit of advice.”
Edzard Ernst, professor of complementary medicine at Peninsula Medical School in Plymouth, UK, says, “Recent history shows quite clearly there is a danger people can be silenced by the financial and legal might of their opponents.”
What are your views? Please let us know, either by commenting here or at the "_Nature News website":http://www.nature.com/news/2009/090513/full/news.2009.479.html (where there is a comment in favour of the BCA, as well as others taking the opposite view). How confident are you about expressing a scientific opinion publicly? How well-informed are you about the legal consequences of what you might write on your blog or for a publication?
See also this Nature Network blog post by Stephen Curry; and this alert by Brian Clegg .
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Maxine – I think what you say is true scientists (and science writers) aren’t particularly aware of libel laws and how what they write may impinge.
Equally, I am of the opinion that there was nothing wrong in the law with Simon’s original piece – it has been misinterpreted.
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Yes, there does seem to be more emphasis on copyright than libel – but the Society of Authors do give talks on the subject from time to time. I’ve never bothered with those being a fiction writer – but maybe I should for my writing on line.
Actually there is one open to all (including non-members) on June 3rd, last booking 27th May, details here. “Privacy and Libel Laws” I wasn’t going to go, but now I think I might.
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The comment by Neil White is very illuminating. Within science there is a culture of robust (sometimes ill-tempered) debate. I have seen my share of public spats over the years – at conferences and in emails. But I don’t think anyone involved would ever have sought legal redress. But with more scientists getting involved in public engagement, clearly there are risks in interacting with the wider society that need to be appreciated.
Do Nature staff get issued with legal guidelines as to what’s printable?
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If anyone’s interested, there are still places at the Society of Authors meeting – I’ve decided to go in the light of all this. Should be interesting.
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Brian – One problem is that even if a legal threat has no merit and never gets as far as a courtroom, it can be very costly for the organisation or person concerned – not to mention stressful! In some countries you don’t even need to be or have a lawyer to sue someone or some organisation (the USA for example).
Stephen – Not documents, but we do have legal seminars every six months or so and we do have access to very fast legal advice when we need it, both for particular articles before we publish them and for other circumstances (for example, after publication). However, I do think it is hard to anticipate all circumstances in advance, and knowing whether (or not! legal advice is not cheap) to ask for advice is sometimes not in the least obvious. To take an analogy, you can be a very experienced editor and still not predict a response from a scientist to an article you’ve handled and published.
Clare- the meeting sounds interesting. I often hear about books that have to be withdrawn immediately after publication becauase of some unanticipated wording – then the publisher has to recall all copies, pulp and reprint, at great additional expense. Of course, book publishers have access to legal advice too – just goes to show that these things can hit out of left field however careful one might be.
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“How confident are you about expressing a scientific opinion publicly? How well-informed are you about the legal consequences of what you might write on your blog or for a publication?”
I was confident about expressing my scientific (and other) opinions, until I began to have an inkling of the unintended legal consequences, thanks to this discussion and the Nature News article. As brought up in Stephen Curry’s comment thread, this case has implications for bloggers and twitterers as well – whenever there is a written, public (published) trace of an opinion, then that opinion does become actionable. Injured or offended parties can and will seek redress.
However, I don’t think that legal considerations will change anyone’s behaviour very much from the long view. If, indeed, lawsuits can not easily be anticipated, then they would have to be far more frequent and dissuasive to stem the flow of opinions being offered in formal and informal media. Singh’s choice of phrasing was typical of an off-the-cuff blog post, or perhaps a book, and less so of a newspaper editorial column. But he was invited as a guest to give his opinion, in his own words. What I (and many others) find troubling is that the turn of phrase matters more than its content, with which I happen to agree.
There are far more insulting and perhaps damaging things said about (e.g.) the U.S. president at any given time, or about conventional medical practices, than is possible to stop through litigation. Since it is arbitrary as to which sort of libelous statement is going to attract the possibility of punishment, and it is easier to silence the few than the many, I hope that Singh can appeal and that the damage of such restraints on free speech is considered to be far greater than any he may caused the BCA.
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Having had threats of legal action from chiropractors myself, I feel quite strongly about Simon Singh’s case. In my case the threat was seen off by a feisty journal editor, but Singh has not been so lucky. Of course the case goes far beyond quackery, and his talk at the meeting on Monday, Nick Cohen pointed out a number of rogues who had used the absurd UK libel laws to prevent criticism. It still isn’t clear to me to what extent Mr Justice Eady’s interpretation of the law was perverse, but it is clear that at least the latter needs to be replaced very urgently.
As Stephen Curry has pointed out, the law could be very easily used to suppress debate within real science, though (luckily for me) vice-chancellors and the Prince of Wales seem not to be inclined to use these iniquitous laws. I never thought that I would read words like those that open Graham Lawton’s account of the case in the New Scientist
”I once believed I lived in a country where freedom of speech and freedom of the press could be taken for granted. I now know I was wrong.”
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It would be fair to say , I think, that the averse-ness of Alternative Medicine to what Stephen Curry shorthands as “robust debate” is precisely one of the things that hallmarks it to many scientists as “clearly not-science”.
In the case of chiropractic, the practitioners are at great pains to insist that they base what they do on evidence. However, when someone challenges this evidence, or their interpretation of it, their stock response seems to be to pick up the phone, call M’Learned Friends, and issue a libel writ. Again, one could contrast this with science, or with mainstream medicine. It is common to see the medical profession caricatured (individually and collectively) on the sites of alternative medicine fans as “paid shills of Big Pharma killing people with useless drugs” (and that’s the temperate language version). As far as I know, recourse to law is rarely, if ever, part of the response.
To add to the sense of the paradoxical – not to say completely bonkers – about the Singh case, in the same fortnight that Mr Justice Eady handed down his ruling, the Advertising Standards Authority was finding against a chiropractor for making what seem like almost precisely the same claims Simon Singh was rubbishing.
The real “chill” effect seems likely to be less on organs like Nature – which are (i) not primarily “comment based”; and (ii) have fast access to legal advice. It is far more of a threat to bloggers, who do not have pricey lawyers on speed-dial. And one suspects it will also impact negatively on “sceptical” coverage in mainstream newspapers, since many editors will probably conclude they can do without the hassle (and attendant legal costs).
What is really needed, of course, is reform of the ludicrous UK defamation laws, which in all but rare cases benefit no-one except libel lawyers and the rich and powerful.
For those wanting more coverage of the Singh case, you could start here, or on the excellent Jack of Kent legal blog, or even here.
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Austin
You are right about the effect on newspapers. Lawyers for the FT just removed the word “dishonest” from a quotation that I gave them for a piece in tomorrow’s FT Magazine. Pity really, because “dishomest” was my opinion (m’Lud) -
A good review of the entire episode is given at the Science-Based Medicine website. I am of course NAL, but the English libel laws (apparently there is no ‘libel law of the UK’) do seem to be destructive of the basic principles of free speech, and easily manipulable to stifle the practice of ’calling a spade, a spade".
An established truth or a true statement should be – in all logical sense – enough protection against accusations of libel and slander, but the British judge, Justice David Eady, differed and consequently found Simon Singh guilty of describing chiropractic claims as “bogus” – regardless of how accurate we may know that description to be. A lawyer’s analysis of the case may be found here. Apparently, Sir Eady has had previous run-ins with the word ‘bogus’, and tends to interpret the word in its narrowest possible sense to find the defendant guilty exactly in a manner similar to the present case.
This hearkens back to the same tactic that the Holocaust denier David Irving used against Holocaust historian Deborah Lipstadt and her British publisher, to sue them for libel successfully on account of Dr. Lipstadt’s referring (quite correctly) to Irving as a “Holocaust denier” in one of her books. Dr. Lipstadt wrote later, “…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.”
But the great thing about about Dr. Lipstadt’s story is that after four years of legal wrangling, she did win her case (albeit at the cost of millions of dollars as well as time). Her publisher stuck with her through and through. Would Singh’s newspaper do him the same courtesy?
This does remind me of the recent case of a California judge finding a teacher guilty for referring to creationism as “superstitious nonsense” in the classroom.
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