Libel law is a bogus excuse for justice

A case involving the science writer Simon Singh is proving a nasty lesson in English libel law for British liberals, providing further proof – to the apparent surprise of more naive souls – that it is not possible to conduct an open search for the truth under the dead hand of the libel courts. The case confirms that English defamation law remains an insult to an allegedly free society and the most unjust piece of legislation on the statute book – a title won in the face of some pretty stiff competition.

Singh is hardly a dangerous rebel, his work being sufficiently respected and respectable to have been rewarded with an MBE from the Queen. That is no protection in the defamation courts. The libel suit brought against him by the British Chiropractic Association (BCA) seems to have been an eye-opener to many about just how loaded libel law is against freedom of expression.

In April 2008, Singh wrote an article for the Guardian questioning the claims of ‘chiropractic’, a type of alternative therapy involving manipulation of the spine that, he said, purports to treat not only back pain but also various childhood conditions. The BCA, Singh wrote, ‘happily promotes bogus treatments’. In response, the BCA sued for libel. The Guardian, fearless opponent of the libel laws, withdrew the article from its website. Singh, however, decided to defend his article.

The case crawled on as such cases do until, earlier this month, a preliminary hearing was held at the Royal Courts of Justice in London to establish the actual ‘meaning’ of the article. This is a peculiar and important aspect of our libel laws, where the court rules on what meaning a ‘reasonable person’ might place upon the words complained of. Unfortunately for Singh, the reasonable person in this case was Justice David Eady, who ruled that the author’s use of the word ‘bogus’ meant he was accusing the BCA of being consciously dishonest and promoting treatments they knew to be useless. Now, Singh himself does not believe that – he says that ‘alternative therapists who offer treatments unsupported by reasonable evidence are deluded rather than deliberately dishonest’. But if the case goes to trial, the judge’s interpretation is the meaning he will have to prove – making it, he has said, ‘almost impossible for me to defend the article, because it’s something I never meant in the first place’. He has yet to decide whether to appeal against Justice Eady’s ruling, or settle and pay the BCA’s hefty legal costs.

It is bad enough to be sued for expressing an opinion, under a libel law which reverses the burden of truth and insists that the defendant must prove he is telling the truth. It is far worse to find yourself expected to defend not just the words you used, but whatever a judge says that someone may have interpreted your words to mean, regardless of what you might say.

Reading about Singh’s case rang a shrill bell with me. Nine years ago, as the editor of LM magazine (née Living Marxism), spiked’s predecessor, I was sued for libel over an article we published raising questions about ITN’s famous 1992 news coverage of skeletal men behind the barbed wire at the Bosnian Serb camp at Trnopolje. We fought the case and lost, as most libel defendants do, the magazine was closed and we were left facing a million-pound bill for costs and damages. The ruling means there is relatively little I can say about it now (and I have even less interest in refighting decade-old battles). But the parallels on the question of meaning are worth a mention.

In our case, held before Justice Morland in 2000, the court ruled that the real meaning of the LM article written by the German journalist Thomas Deichmann was that ITN and its journalists had ‘deliberately’ misrepresented the situation at the camp. This was despite the fact that Deichmann never used that word, or suggested that they had done so. We were thus left having to prove, not only what they might have done in 1992, but what they might have been thinking at the time. As I pointed out, this seemed impossible without the aid of a time machine and a mind reader. We were left with virtually no chance of winning, although the trial established that the central fact in Deichmann’s article – that the barbed wire fence through which those pictures were shot surrounded the journalists themselves – was true. ‘But, does it matter?’ the judge memorably commented. And the answer was no, it did not, once we were asked to prove the unproveable.

Even though we knew the legal and judicial dice were heavily loaded against us, we decided to fight the case in court to defend the principle of free speech. At the time of the LM libel trial, our defence of free speech on such an emotive issue was opposed by many of the liberal voices who are backing Singh’s case. Now that a respectable science writer has suffered a similar fate, they seem shocked to discover how bad English libel laws really are. Yet those laws remain today what they were a decade ago – a system of bogus justice described by one US court back then as ‘repugnant’ to the principle of free speech.

The tinkering reforms implemented in recent years have not altered the illiberal basis of the law that invites ‘libel tourists’ from around the world to sue in London’s infamously plaintiff-friendly defamation courts. Indeed, the impact of the most influential reform – the introduction of no-win-no-fee legal representation – has been to ‘democratise’ censorship by allowing more people and organisations to try to silence their critics by threatening to sue for libel, rather than this being the preserve of the rich.

The US Congress is now trying to counter ‘libel tourism’ and give its citizens legal protection from being pursued in America under the judgements of English libel courts (see A New York rebellion against libel imperialism). It would be a great day for democracy if the British parliament were to do something similar for us by abolishing those bogus laws.

I do not always agree with Singh, a sometimes self-righteous crusader against man-made global warming who has previously clashed with spiked editor Brendan O’Neill and is intolerant of the views of sceptics whom he recently dismissed as ‘climate change numpties’, ‘unintelligent and dishonourable’ people who ‘do not believe’ (see Scientific consensus: the starting point of debate, by Simon Singh, and Keep science out of politics and vice versa, by Brendan O’Neill). But of course I agree with his generally sceptical attitude to complementary and alternative therapies. And I agree with him about the disastrous ‘chilling effect’ that the libel laws have on public discussion.

But even if I disagreed with Singh about everything, it would make no difference when it comes to defending his freedom of speech against the libel laws. The Facebook group ‘For Simon Singh and Free Speech – Against the BCA Libel Claim’ argues reasonably that: ‘An informed and responsible science writer should be able to write about genuine concerns on an important public health issue (the correct treatment for children) without the threat and expense of High Court libel claims.’ Some of us would go a little further than that, and argue that anybody, however unscientific, ignorant or irresponsible, should be able to express a view on anything without that legal threat hanging over their heads.

In the end that is what such libel cases are about – the right to freedom of expression, the right to be offensive, the right to say what others (or we ourselves) do not want to hear. There is a naive tendency these days to see the libel courts as a place to discover the truth and resolve big questions of historical or scientific fact. Hence some have talked about Singh’s legal fight with the insignificant little BCA as if it were some sort of historic battle to defend science and Enlightenment rationality. But libel law and the wisdom of judges are a dead end for those seeking the truth, as the fate of Singh’s defence – which wanted to test the claims of chiropractic – shows. These issues will have to be resolved not in the weird and claustrophobic world of the Royal Courts of Justice, but outside in the wider court of public opinion.

Losing a libel trial, or settling a hopeless case before it reaches court, does not mean you have been proved wrong. As I said at the time of the LM trial, Jeffrey Archer was just about the only person who still thought that winning a case under English libel law was the same thing as being proved right. And he has since been in prison for committing perjury during his victorious libel trial.

Even honest victors can pay a heavy price for relying upon the libel courts to defend their reputation. The BCA might reflect on the outcome of another case heard before Justice Eady in 2006, which also turned on the definition of the word ‘bogus’. Paul McKenna, the TV hypnotist, won his libel case against the Daily Mirror, which had described his PhD as ‘bogus’ in a long-forgotten article. McKenna said that the trial had made him ‘a laughing stock’. The judge ruled in his favour, but concluded that it would have been fair comment for the paper to say that McKenna had received his qualification from an ‘obscure, degrees-by-post establishment’, and that ‘hypnotherapy was not a suitable subject for a PhD’. What a triumph!

Whatever ‘meaning’ the English libel courts might attach to ‘bogus’ or any other words, the principle of free speech in our society will have rather more meaning when it is taken out of their hands altogether.

Mick Hume is editor-at-large of spiked.