British Chiropractic Association v Singh

Today the Times reports that the British Chiropractic Association has dropped its libel case against Simon Singh, following an adverse ruling by the Court of Appeal.

I wrote the following as a company blog on the Appeal Court's judgment:

“Sticks and stones may break my bones”, went a popular refrain of my primary school days, “but names will never harm me”.

Made of somewhat less robust material is the British Chiropractic Association, which took exception to an article by the scientist and author Dr Simon Singh in the Guardian newspaper. The article included the following:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.”

Ignoring the journalistic context, this is the ordinary stuff of scientific controversy: the Association made certain claims for which Dr Singh disputed the evidence. The appropriate response for the Association would have been to adduce peer-reviewed evidence supporting its claims; and for those to be subject to further study. Over time either or both sides should then have modified their views depending on the weight of the evidence. There were any number of fora available to the Association to propound its viewpoint: indeed, the Guardian itself offered just such an opportunity.

But the Association did not take that course. Instead it chose to sue for libel. Moreover, it chose to sue not the obvious defendant of the Guardian, but Dr Singh personally.

It takes little imagination to work out why. The Guardian would be well placed to defend any such action. But Dr Singh is a private individual and, though reasonably well-off, hardly in the position of a national newspaper to afford the cost of High Court litigation. It is not unreasonable to assume that the Association hoped not only to silence Dr Singh, but also send a message to anyone else who dared cross them in the same fashion.

The Court of Appeal had this to say of that tawdry strategy:

It is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic. If so, quite apart from any public interest in issues of legal principle which arise in the present proceedings, the questions raised by Dr Singh, which have a direct resonance for patients, are unresolved. This would be a surprising consequence of laws designed to protect reputation ...

Fortunately it was not the ultimate consequence of the litigation. Dr Singh found the resources not only to defend the action in the High Court, but to appeal successfully against an adverse first instance finding that his article could not amount to “fair comment”.

The evidence proffered by the Association is revealing in itself. The Court of Appeal quotes the following:

The BCA ... relies (among other studies) on a 1989 observational study of 316 children, of which it is said:

"This …. measured the number of hours each child spent in crying .... There was no control group. However, the study constitutes evidence."

It is, however, elementary medical science that the only evidence worthy of the name comes from double blind, randomised control tests. The Association’s quoted “observational study” admits that it had no control group and thus did not meet that criteria. To suggest it constitutes evidence is a classic example of the post hoc ergo propter hoc fallacy. It is difficult to rebut the suspicion that the lack of scientific validity of this “observational study” might be the reason why the Association opted for a libel suit rather than the proper course of a public debate about the evidence for its claims.

The Court of Appeal offered the following pithy observation from an American judgment (Underwager v Salter 22 Fed. 3d 730 (1994)):

"[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us."

With which it is impossible to disagree. The irony is that by adopting its bullying tactics and failing, the Association has ultimately done itself more damage – both financially and in terms of its reputation – than Dr Singh’s original article ever would have done if it had been simply ignored. It fully deserved to come unstuck on that one.