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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You are quite right, Kausik, I wrote “UK defamation laws” when I should have put “English…” My lawyer friends have to keep reminding me of this. Scotland has its own laws, of course.
Re. the Guardian, the newspaper where Singh published the offending article, you can find a statement of their take on this here. Essentially it would appear that the Guardian’s lawyers told them “the statement might be viewed as defamatory as written” at which point the newspaper took the article down. They offered to pay Simgh’s legal fees up to that point if he settled out of court (i.e. apologised), but from the moment he decided he wanted to defend the claim he was on his own.
Personally I think this is a bit craven of the Guardian, given the wider issues of freedom of expression / right to fair comment – but see my earlier comment about newspaper editors.
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Austin – I agree with your point about the “chill” effect for individuals but I also know that “publishers” are perceived by some litigatious types as magnets – “professional litigators” think that the publisher will pay to make them go away, whereas they tend to assume that an individual operating his or her own blog or website isn’t going to have very deep pockets.
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Thanks for the info, Maxine. I find this issue highly disturbing. Particularly as blogging is much to do with expressing opinion (isn’t that why many of us do it?). And, although the advisory comments on Stephen’s post are worthwhile, I don’t see anything wrong with its title. As David Allen Green (aka Jack of Kent) points out in his piece in last week’s NewScientist, the law here is arse about face, with the onus on the wrong party. Do we really have to be cowed into self-word-laundering? Qualifying everything we write to make sure we don’t fall off the wrong side of the fence, just in case? I’m not interested in the technicalities of whether Simon Singh chose his wording unwisely. It was a comment piece, and so expressed an opinion. Do we need to start throwing in the word ‘probably’ all over the place? Imagine an atheist being sued by some religious organisation for not having evidence to ‘disprove’ something for which there is evidential deficiency. (Actually, this is not as outlandish as we might think).
I should point out (if I need to include a disclaimer) that I’m not discussing here the pros and cons of chiropractic, of which I know little. What bothers me is the free speech issue and the absurdity of this ruling. Is there anything more ridiculous than not being allowed to challenge a reputation? Isn’t that precisely what reputation – an ethereal thing – is for? Science is a reputation driven profession. Our reputation is challenged if a published paper contradicts our pet hypothesis. Imagine if we responded by suing our competitor. It would be laughed out. Instead, we respond by getting on with the job. And why doesn’t this shit happen to certain others? When Prince Charles abuses his position by trashing the reputation of architects he dislikes on aesthetic grounds, for instance? Why doesn’t anybody go after him? Because he’s entitled to his opinion? Or because he’s more bullet-proof than a science writer?
In the 21st century we’re regressing. Invoking Orwell may be trite, but valid nonetheless. If such tactics win, then take this to its (il)logical conclusion: the muting of popular science. Scientists will go scurrying back to their offices and benches and shut their doors, untrusting of the media, unwilling to offer up opinion with any inkling of passion, lest they become liable, simply for doing what is their public duty. We’ll become loathe to converse in the pub for fear our conversation is being recorded. We’ll become paranoid, ultra-careful, distrustful and distrusted… and boring.
What the BCA is doing is tantamount to the tactics of ID pseudoscientists. Instead of competing on equal terms (i.e. backing up scientific claims with scientific evidence), they are exploiting public ignorance, upon which is founded ‘reputation’. However, I see hope in this. I hope The Guardian, which invited the piece and, presumably, did not publish it blind, but approved the copy (and posted it on its ‘Comment is free’ page; how ironic is that?), pays all Singh’s costs if he decides not to settle. And I hope this will become a badge of honour for him. Whilst he may be bound not to publicly discuss his views on the BCA’s claims, his future publicity could include the tag that he was sued for challenging the ‘reputation’ of the BCA. Which, in itself, will challenge the reputation of the BCA, by reminding anybody interested that a big organisation drew on its resources to engage its lawyers in order to take out a lawsuit against an individual who used his freedom of expression to express a contrary opinion. I know who this reflects badly on – and it isn’t Simon Singh. But we’ll have to keep reminding people. I just hope we will all still want to.
(Now, can I say all that? Because if I can’t, you’d better let me know quick.)
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As you say, Lee…..
One thing I am very grateful for, which is the legal advice we have at Nature – sympathetic to the journalistic imperitive rather than to an excessive need for caution. And that’s been the case since the day I signed up, many years ago. -
Lee, Prince Charles gets a rough ride from the sceptical and medical blogospheres when he pronounces on Alternative Medicine… and even sometimes in the scientific or medical journals. However, rather less of this makes it into the mainstream press, so you could describe his reputation as more bomb-proof than a science writer’s in that sense. And it has sometimes proved a dangerous thing for sceptically-minded Professors to get on the wrong side of HRH’s friends and apparatchiks.
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@Lee – well said.
@Austin – Prince Charles may get a rough ride but I imagine you don’t disagree with that? I dislike the fact that he has any influence in government – he has no constituency. Let him become a commoner and stand for parliament if he wants to get involved. There should be a few vacancies coming up soon.
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Yes, I think HRH gets what he deserves in blog-world, Stephen. He gets a far easier ride from newspapers, politicians and (especially) from officialdom. His influence on official policy on Alternative Medicine has been highly inappropriate, in my view. So constitutionally I am with you.
Back on the forum topic of science writers and the legal implication of their words, I think that most people are ignorant of the “libel aspects” of what they write. But they are ignorant, it must be stressed, of a Byzantine and utterly ridiculous set of laws. The English libel law is in urgent need of reform, and it should be a priority for any new Govt. You could have a privacy law with public interest defence, and/or simply the kind of reversal of proof (plaintiffs have to show falsity or malice) that legal commentator Jack of Kent has argued for.
Whatever, the current situation is ludicrous. You cannot really expect people to weigh every single chosen written word – see “bogus” – or even the order of paragraphs, in the libel-ometer. The net effect, without question, is suppression of free expression. And the lawyers are quite clear on this – the big libel firms typically have websites which start by saying, in effect “Are you a public figure or organisation who need to suppress adverse comment about yourself? Come to us”. Anyway, it has made the English courts a global laughing stock, (“Libel Tourism”), and by implication the rest of us in the UK too.
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Drawing this further than English Libel Law, it is worth noting that norms governing “proper conduct” with respect to reporting are different inside and outside of academia.
Scientists and scholars accept heterogeneity as a core characteristic of the current-state-of-affairs of science. Each and every report, scientific publication, even every experiment is part of that heterogeneity, supporting one of the various positions/theories. We are all happy with this situation, for the plurality of options furthers our inquiries. To scientists and scholars, heterogeneity is a strength.
Outside of academia, heterogeneity is considered a weakness. While the understanding of the world is stimulated by (a degree) of heterogeneity, acting in that world requires (a lot of) homogeneity. It minimizes uncertainty.
The courtroom is the prime example of a place where many expect that heterogeneity is turned into homogeneity through the ruling of a judge, separating the true position from all the false ones. Courtrooms and laboratories are subject to different logics. Where one logic dictates the exclusion of all heterogeneity to further life (a court ruling), the other logic invites heterogeneity to further understanding (hypotheses/theories/experiments). A judge and a peer-reviewer have different purposes, to forcefully remove all altrnatives and to suggest ans many relevant alternatives as possible, resp.
Part of popular science writing ought to be popular science philosophy. Explaining and communicating a position in a scientific debate is very important, but explaining and communicating why there are multiple positions, and why many of them can make sense at the same time is equally so. The Sigh/BCA contriversy may provide a starting point.
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Just thought I’d add these links here for any worried bloggers in the US: this article highlights the liability potential for bloggers, and here (also linked from the article) is a free, short course on online media law (in the US) that may be useful or at least interesting.
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Thanks, Steffi, that’s very helpful. I also recommend bloggers read this WSJ article – note its worrying title!
As mentioned previously, if you write on the Internet you can be downloaded in any country, which is a factor to consider.
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