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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Thanks for those links Steffi and Maxine – rather sober reading, but certainly necessary these days.
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It’s gone quiet here.. so dare I ask whether we are allowed to mention the recent post on a blog at Nature Network that has just been taken down – along with all the comments – following, quote:
“Strong legal advice from NPG lawyers that the content of the post was potentially libelous, according to English libel law.”
- unquote.
Which tends to, er, bring all of this into sharp relief.
The post and comments, almost needless to say, didn’t contain anything that you couldn’t have heard in the discussion at any departmental or laboratory coffee room in the UK.
So…
…how about a campaign? I suggest:
“Scientists for Free Speech and Opinion”
It seems rather desperately needed.
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I just read Stephen’s post about this. My sympathies to him. (I suspect that the “going quiet” is more to do with it being the weekend than anything else, Austin.)
I think Stephen says it all in his post, really. Those of us who entered a journalism, editing or writing career have had to encounter the need for legal awareness and caution in what we publish as part of our usual work.
The explosion of web 2.0 of the Internet and user-generated content (ie when someone can write and publish something without going through an independent evaluation first), as outlined in some of the links here, has bought these issues into more general awareness, I think.
The fact that an article posted on the Internet can be read and downloaded anywhere in the world, and hence potentially subject to the law of that country, is to my mind a really significant aspect – particularly to those in the US who take for granted certain protections that don’t apply elsewhere where their posts can be read. (I’ve already seen some unpleasant, opinionated and ill-informed comments on the internet in various forums about this incident.)
Maybe we could consider inviting someone to talk on the law and the internet at the or a science online conference? -
The idea of subjecting an American author to British or Australian liability law seems morally comparable to those who would hold British author Salman Rushdie accountable to Iranian law for defaming the Islamic prophet (though fortunately with not quite such severe effect). Arousing the ire of radical Islamists, wealthy Britons, or organized criminals who command botnets may potentially have various types of unpleasant consequences that degrade press freedom, but such reactions are immensely unlikely, largely unpredictable, and entirely without legitimacy. One can be beaten and robbed while walking down the street, after all.
Even in America, libel laws are a relic from a time before proper freedom of speech, when public discussion was dominated by a few major firms often licensed by the government or (as for newspapers) receiving substantial subsidies in mandated advertisements and public notices. Governments could not resist the temptation to dominate these sources by legal action to override the private power that this created. Today, internet libel suits make dubious assumptions, such as that those who could read a source do read the source, or that those who do read a source pay it some attention. From debating on various forums I think I can safely say that it is only a small minority of people who are at any great risk of having their opinions swayed by any means, fair or foul.
Another misleading standard sometimes seen is the measurement of changes in stock price, which would seem to quantify vast economic impacts of newspaper reports. For example, the Taser Corporation claimed that unflattering news coverage led to a 50% reduction in stock price – but looking at a graph of the stock value reveals many fluctuations and a net overall increase in value. While it is possible that newspaper reports may affect short term fluctuations that give some people the opportunity to gain and some to lose money, I don’t think it is fair to blame them for the losses of one investor without crediting them for gains of the next. After all, stock prices can vary without any change in attitudes at all, and in the vast majority of instances the free market is trusted to handle this risk without any special action.
What is particularly ironic is that people have been asked to compromise free speech ideals to prevent “libel” on occasional websites, yet a handful of established credit agencies are permitted to knowingly accept false reports from banks that are victims of fraud which they blame on an uninvolved person as “identity theft”. In fact, these agencies then attempt to coerce people to pay for “credit monitoring” to shoulder the cost of watching and correcting the false information. If there is any one place where companies should be held financially liable for printing false information about a person or corporation, shouldn’t it be when those companies make their profits by claiming to sell accurate information about that person’s credit rating? Yet there no one is held accountable.
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Maxine – I would certainly like to have someone at the conference who could speak on the legal implications of libel law for bloggers. In the friendfeed room I suggested JackofKent a lawyer/blogger who has been following the Singh case closely.
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Yes, I think this sounds a good idea too, and Jack of Kent would be great.
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Bart makes interesting distinctions.
’Courtrooms and laboratories are subject to different logics.’
Is this, perhaps, because the investigative process works in opposite directions? Judge and jury start with a known objective reality – a committed crime, which therefore must have been perpetrated. So, yes, there is homogeneity in that the accused did or didn’t do it. But it works backwards from there to determine which one of the competing explanations led to the truth of the actual crime.
Science, however, makes predictions about reality, then comes up with ways to test them, and so, through a process over time, reduces the heterogeneity towards that which works or fits best. Yes, this is its strength. But at the outset, the end point includes a subjective element (hypothesis), which we attempt to objectify.
The problem with the libel issue, as exemplified by the Singh-BCA case, is that the supposed ‘crime’ is a subjective entity, perceived (or invented) by the plaintiff, based on factors, such as ‘reputation’ (“diddums”) and ‘character’, or other biased interests it seeks to protect. And, perversely, it is not requisite on the plaintiff to objectively address the points it considers libellous. Its case is based on a prediction – any actual sustained effects of a tarnished reputation would not become evaluable for some time. If the crime was an objective reality, it would have to prove the defendant ‘did it.’ But with libel, the defendant has to prove that there is no crime.
This, it seems to me, provides for a very handy marketing tool for big organisations with the means to readily resort to laws unjustly biased in their favour. It’s bullying, pure and simple. With judges apparently rendered incapable of common sense, how easy must it be for their lawyers to ‘identify’ crimes?
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Jack of Kent would be a great addition. Can I suggest Nick Cohen too, especially after the article in the Observer this morning? And if you wanted to ask a genuine libel QC to pop in too, I understand Adrienne Page QC is part of the Singh defence team. I surmise one of the things libel QCs are likely good at is telling you how you should word things to avoid being “sue-able”
The issue is much bigger than blogging, of course, as Nick Cohen’s piece makes clear. But blogging is a good test bed, because it is a place where experts can give you a straight-from-the-horse’s mouth view. That seems to me to be a good thing for debate. Would you, for instance, rather hear a bunch of scientists talking about what they think are the limits of scientific authority and how scientists should behave when communicating science publicly? Or would you rather hear journalists and politicians discussing it, either neutered for libel-proof print publication, or spun for shock-value and policy grandstanding? If you think I’m over-editorializing about the latter, remember what happened to Prof David Nutt recently.
Anyway, I would rather hear the scientists, myself. Blogging has given us a way to hear from them about science, from health service front-line staff about healthcare, from the police about the reality of policing etc. etc. The use of libel threat to suppress this is a travesty of free speech.
PS Lee – you are spot on. It is not about truth – it is about “reputation management”, which is precisely what the defamation lawyers call it. Look up any of the big law firms’ websites, see what they say, and the customer base they are pitching to – and the product – is clear. The pitch is to the rich and powerful; the product is suppression of any unflattering comment about themselves.
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I can’t help thinking that Nature has been a bit pusillanimous about this. After all, it is my understanding that no complaint has been made and no letters from lawyers have arrived. Surely all that was necessary was to offer to correct any errors of fact (if there were any).
After the New Zealand Medical Journal published an editorial that I’d written about chiropractors, both the journal, and I personally had threatening letters from lawyers acting for the New Zealand Chiropractors’ Association Inc. Letters like that are seriously scary, But in this case the editor of the New Zealand Medical Journal, Frank Frizelle, was a bit more feisty than Nature Networks have been. He published the entire letter from the lawyers and defied them by ending his editorial on the matter with “let’s hear your evidence not your legal muscle”. After he, very reasonably, offered the chiropractors right of reply in the journal, they backed down and neither I nor the journal was bankrupted. He then allowed us the final to reply to the replies, and got away with it. All the details are on the web .
There is another aspect to actions like this. A while ago Andy Lewis of Quackometer published a rather beautiful essay with the title “The Gentle Art of Homeopathic Killing” (after Newsnight had caught homeopaths recommending travellers to take sugar pills to prevent malaria). Lawyers for the Society of Homeopaths approached his ISP and forced them to remove the page. But within a week the page had reappeared in something like 100 different places on the web (you can read it here , among many other places). The result was that it was read far more widely than if the lawyers hadn’t bothered, and shot to near the top of a Google search for “Society of Homeopaths”. Likewise the Singh v BCA scandal is causing unprecedented interest in some of the dubious claims made by chiropractors. Even if they win in law, they will have damaged their own reputation badly.
It is my no means impossible that Stepehen Curry’s post will spread in the same way. It is easy to find it already in at least two places. I find that a slightly encouraging sign that it is hard to suppress free speech in the days of the web, even if the law is an ass.
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Re. Stephen Curry’s post, I agree with David Colquhoun that there seems little real need for NN to have taken the post down. I rather suspect that, had any of the people Stephen referred to instructed lawyers and issued a writ, they would have made themselves a national (or global) laughing stock in a matter of hours of the news getting out. I suspect all of them would be well aware of this, too. I could believe one or two of them might have taken slight issue with what was written – had they ever read it – but I find it difficult to conceive any response beyond a letter/email/comment asking for correction of any, as David says, “errors of fact”. And that in turn would push things along.
Which, er, sounds like discussion to me. A bit like what happens when scientists get together.
Anyway, while NPG might have correctly identified possible “libel hostages to fortune” in Stephen’s post – and perhaps that was just one law firm’s opinion – my view would be that the decision was unnecessarily cautious (being polite) on the slightly different grounds of “actual likelihood of getting a threatening lawyers’ letter from any of those mentioned.”
Given the real chance these days of candid opinions being censored by libel threat – see Simon Singh – I am deeply uneasy when publishers or ISPs do the censoring pre-emptively. “Could you make the same point but avoid this form of words?” is one thing. Taking a post down is a bit more than that.
Now, I understand that not everyone wants to be Private Eye, but we don’t want to be automatically doing the censors’ work for them. Then they really will have won.
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