Simon Singh and the jury

Simon Singh, the science writer best known for Fermat's Last Theorum, must decide whether to contest a libel claim by the British Chiropractic Association following a High Court ruling that the meaning of what he wrote is much worse than he intended.

If he wants to continue, Dr Singh may have to prove the BCA was dishonest. A tall order. Everything seems to be against his continuing, but he may have one thing on his side: the jury.

In an opinion piece for the Guardian, Dr Singh described as bogus BCA claims that chiropractors could help (amongst other things) childhood asthma. In a preliminary ruling, the court said that this meant the BCA was being consciously dishonest.

There are three main defences to libel, as student journalists will recall. The obvious protection for an opinion piece comes from the defence of fair comment. In other words, Dr Singh is entitled to his opinion. But fair comment is a conditional defence and one of the conditions is:

you cannot pass off as comment allegations of criminal or immoral behaviour.

The High Court's interpretation of the article would seem make it an allegation of immoral behaviour and so the defence may be less robust than Dr Singh would wish.

It is difficult to see how the second possible defence, privilege, would help. The most useful flavour, a common-law form of privilege known as the Reynolds Defence, requires that the writer gives his subject the right to reply to allegations. It is not usual to include such responses in an opinion piece.

That leaves the defence of truth, known in England and Wales as justification. There are no conditions to the justification defence -- if it is true, you can publish. However, there are a couple of awkward wrinkles:

• The burden of proof in libel is reversed -- the writer has to prove it was true; the claimant does not have to prove it was wrong
• The meaning you are judged on is not what you intended but what would be understood by a reasonable person in the worst case (hence Dr Singh's problem with the High Court ruling)

There are many from the scientific community (and many more who care about free speech) who would like to see Dr Singh continue to fight the libel action. But there is a slim chance of success and, if he loses, he faces enormous costs.

"One glimmer of light is the
standard of proof required"

One glimmer of light is the standard of proof required. It is not the proof beyond reasonable doubt that we see in criminal cases. In libel, proof on the balance of probabilities is used. In practice, that means the winner is the one who convinces the jury.

Notoriously, in libel, the celebrity usually wins (of course, the celebrity is also usually the one suing and so this may not be a good guide in the Singh case). Juries tend to have a natural disposition to side with the well-known. As a famous author, this may give Simon Singh an edge. On top of that, there is the evidence that the Advertising Standards Authority upheld a complaint against a chiropractor who claimed he could treat children with colic.

Neither of these factors would amount to a proof that would see a defendent convicted in a criminal court. But could they be enough in a civil suit?

Juries are picked at random, so if Dr Singh continues there will be huge element of risk, with hundreds of thousands of pounds in legal expenses at stake. Hypothetically, one jury may be sympathetic to Dr Singh but feel the word bogus was going too far. But another may feel he had a point. No-one can say for sure until there is a real jury and they have heard the evidence. By then the losing side may be facing a bill for millions.

See also:

• Nick Cohen's article in today's Observer
• The BCA's statement on the case [PDF]
• Jack of Kent's commentary on the case
• The Facebook page For Simon Singh and Free Speech

Notes:

• The author is a journalist not a lawyer (and a lover not a fighter, but has no firm view on the dogs vs cats thing).
• The piece is written for general interest and does not represent legal advice to Simon Singh or anyone else.

Journalists thwarted by FoI delays

Journalists are being discouraged from using the Freedom of Information Act by the delay tactics of officials, according to a report.

A shock to the system [pdf link], written by the BBC's Jeremy Hayes for the Reuters Institute for the Study of Journalism describes some notable successes for journalists using FoI. But it says the time government departments take to respond is limiting journalists' ability to be effective.

Hayes cites an investigation by Chris Hastings of the Sunday Telegraph into Formula One Boss, Bernie Ecclestone's donation to the Labour party and Tony Blair's involvement in F1's exemption from a tobacco advertising ban. It took two and a half years before Hastings was given the relevant documents and in the meantime Tony Blair had left office.

According to Hayes' report:

The evidence of the more contentious and disputed cases points to a standard gestation period of over two years before disclosure . . .

Examination of the decision notices by the Information Commissioner [shows] the propensity of officials to use exemptions in the Freedom of Information Act to prevent disclosure . . .

In case after case, the exemption clauses cited are many in number, applied blanket-style, and have the effect of creating layers of defence, each of which has to be considered in its turn, thus adding to the complexity of the process and the time needed to complete it.

Telegraph shuts down MP's blog

Legal action by the Telegraph has resulted in the blog of tory MP Nadine Dorries being shut down, the Guardian reports.

The paper's lawyers moved against the blog's host rather than Ms Dorries herself. The 1996 Defamation Act was supposed to prevent this type of action. The section 1 defence protects people (such as internet hosts) who publish libellous statements but who are not directly responsible for creating the libel.

The problem is that the defence is conditional on the internet host taking all reasonable measures to stop a libel being propagated. If the libel is drawn to the internet host's attention, then they have to do something about it. The usual response is to delete the offending material without contacting the author.

In this case, the internet service provider has taken the entire blog off line.

Blogger settles libel claim

A tax accountant blogger who wrongly accused Lord Ashcroft of helping people to dodge tax has paid a substantial sum to a charity as part of a libel settlement, Press Gazette reports.

Richard Murphy, director of Tax Research llp, claimed that tory deputy chairman's company BB Holdings helped customers unlawfully evade tax. Lord Ashcroft's lawyer said that Mr Murphy appeared to base his allegations on his interpretation of what he read on another website. That website subsequenty said it was not making such allegations and was not even referring to Lord Ashcroft's company.

The lawyer also pointed out that Mr Murphy had not approached his client for comment before publishing.

Sight and sound in writing

Think about how your writing would work if you filmed it and what the soundtrack would be.

Media owners are launching a concerted effort to trumpet the power of their platforms as they attempt to ride out one of the deepest advertising downturns in decades.

This intro appearsat the top of a story in FT.com today.

The visual

If we were to film it, we would need a trumpet and something to ride -- a horse maybe. Then we'd need to find a rider who could play the trumpet while riding.

The phrases trumpet the power and ride out the downturn are metaphors -- there is no actual trumpet or horse in this story but they add visual elements to an otherwise abstract story. Metaphors are great. Cliched metaphors are less good because the reader is so familiar with them that they don't bother to conjure up the images (which was the whole point of the metaphor).

Mixed metaphors are bad too. Now the reader has to conjure up two images, but they are liable to get them confused, so they end up picturing a guy bouncing around on a horse trying to play the trumpet.

One metaphor in a sentence is plenty and if it could be original that would be even better.


The soundtrack

Writing is a representation of the way we speak. The sound of the words is an intermediate stage as the reader's brain processes language. Many writers use this to advantage -- repeating sounds to draw the reader's attention to certain words.

However, repeating sounds accidentally or for the sake of word-play can be counter-productive. Listen to the repeating sounds in the FT's intro.

Media owners are launching a concerted effort to trumPet the Power of their Platforms as they attempt to ride out one of the Deepest aDvertising Downturns in Decades.

The -p- and -d- sounds are hard, explosive even. The effect on the reader's brain is similar to someone rasping a washboard -- p-p-p. d-d-d-d. Not, I am certain, what the writers were going for.

Alliteration (repeated sounds at the beginnings of words) is a technique one should use sparingly. Save it for when it can really create an impact. Otherwise it may just be annoying.

Micropayment: the debate

Rupert Murdoch says his papers will start charging for online content, the FT and others report. His News Corp announced a 47% drop in revenues.

But a New Media Age survey found that 77 per cent of UK regular online readers were not prepared to pay for access to news websites. Many commentators doubt if online subscriptions are viable.

Micropayment is one solution on offer. Walter Isaacson, a former managing editor of Time says: a newspaper might decide to charge a nickel for an article or a dime for that day's full edition or $2 for a month's worth of Web access. Some surfers would balk, but I suspect most would merrily click through if it were cheap and easy enough.

Newspapers struggle to find an online business model that works

In today's Guardian, Frank Fisher says:

This needs a big player . . . Google already has the infrastructure and the reputation . . . Not only that, but they're touted as news content's No 1 enemy, via GoogleNews. They "owe" the press one.

Slate's founding editor, in a piece for the New York Times headed You can't sell news by the slice points out:

Newspaper readers have never paid for the content (words and photos). What they have paid for is the paper that content is printed on. A week of The Washington Post weighs about eight pounds and costs $1.81 for new subscribers, home-delivered. With newsprint (that’s the paper, not the ink) costing around $750 a metric ton, or 34 cents a pound, Post subscribers are getting almost a dollar’s worth of paper free every week — not to mention the ink, the delivery, etc. The Times is more svelte and more expensive. It might even have a viable business model if it could sell the paper with nothing written on it. A more promising idea is the opposite: give away the content without the paper. In theory, a reader who stops paying for the physical paper but continues to read the content online is doing the publisher a favour.

Talk of micropayments goes back 10 years, Stephen Dubner points out in a different article for the New York Times. He quotes Marshall W. Van Alstyne, an associate professor in the Information Systems department at Boston University:

Putting micropayments on news is like putting tollbooths on an open ocean. Internet users, awash in a sea of information, will avoid new barriers by navigating around them. And frankly, the interests of a free society are rarely served by building barriers between the people and their news.

See also Micropayments won't save journalism in TechCrunch.

Top ten writing mistakes

1. Not clear what your writing is for or about
2. No illustrations
3. Doesn't get to the point quickly enough
4. Not easy for different readers to find the information they want
5. Lacking in hard facts
6. The structure suits the writer but not the reader
7. Incomprehensible language (passive, vague, jargon)
8. Doesn't answer obvious questions the reader may have
9. Headings and captions contain no useful information
10. Boring

Science writing: keep asking why?

Hubble gyros fixed after struggle, the BBC told us on Friday, but didn't explain what a gyroscope is or why it needs to be fixed.

Every journalist knows the importance of the who-what-why-where-when formula but so often the answer to the why goes missing. In fairness, it is generally the toughest question to answer. But it is also the most significant because, without it, the reader doesn't get the point of the story.

Astronauts have completed the most critical repair to the Hubble Space Telescope after a long struggle, the story goes on.

Why is it the most critical repair? The writer doesn't make that clear either.

A gyroscope is like a spinning top. As long as it keeps spinning it will stay the same way up. Spacecraft use them so they know which way they are pointing. They are critical to the Hubble Telescope because a telescope is pretty hopeless if you don't know which way it is pointing.

This is what a NASA gyroscope looks like by the way

In practice, gyroscopes are a bit fancier than spinning tops. They are precision machined and work like an electric motor to keep them rotating. They also have tiny sensors to detect their movement and tell the telescope which way up it is.

Herein lies the problem. Keep a tiny, precision motor running for 19 years and it is likely to wear out or break down. Hence NASA's mission to replace them.

There that wasn't so hard, was it? Source of the information . . . wait for it . . . NASA.

Space repairs make an exciting enough story without detailed explanation. But don't you think the reader deserves to know more about the science after they have read a story like this?

Beware the cliched intro

Writing in a way that is relevant to your reader is important right from the start. But some tricks are overused. Relating technology to sci-fi films, for instance . . .

Its not quite as advanced as Terminator technology. But a new concrete that can heal its own wounds may soon bring futuristic protection to bridges and roads.

Move over, Superman. The Man of Steel has nothing on the collapsed cores of massive snuffed-out stars, scientists say.

Cloaking devices, like the Star Trek technology that can make whole Romulan warships disappear, came a step closer to reality last week.

From National Geographic: three in eight days?

Simon Singh's bogus meaning

Science writer Simon Singh has lost a preliminary libel battle in the High Court with the British Chiropractic Association, the Guardian reports.

The ruling centred on the meaning of the word bogus. In a comment piece for the Guardian, Dr Singh criticised the BCA for happily promoting bogus treatments. Mr Justice Eady said this implied the association was being consciously dishonest. Dr Singh says he never intended this meaning.

The case highlights the dangers of certain words in libel. Dr Singh may have felt able to prove a lack of scientific evidence supporting the efficacy of the treatments the BCA advocates. But the High Court's ruling means that for a defence of justification (truth) to work, he will now need to prove that the BCA was consciously dishonest -- a much tougher thing to show.

The writer's intention does not matter in a libel case. The test is how the text would be understood by a reasonable person. Importantly, where there is more than one possible meaning, the court is allowed to consider the worst-case meaning.

The defence of fair comment may also be open Dr Singh -- he is entitled to his opinion. But this defence has conditions including that he cannot pass off as comment allegations of criminal or immoral behaviour. Whereas questions about a lack of scientific evidence may be considered fair comment, accusing the BCA of being consciously dishonest is likely to taken by a court as an allegation of immoral behaviour.

Conjecture creates libel

West Ham's manager and coach accepted undisclosed libel damages and costs from the BBC over speculation on Radio 5 Live that they were considering a move to Chelsea, AFP reports.

Gianfranco Zola and Steve Clarke signed contracts with West Ham running until 2013. Their lawyer told the High Court in London that an unfounded report on Radio 5 Live that they had been interviewed by Chelsea's owner may have damage[d] their relationship with their employers and with the players and fans of West Ham

The case underscores the difficulty under UK libel law for journalists reporting stories based on rumour or speculation. If the story is damaging to someone's reputation then the reporter may have to prove the substance of the speculation to have a defence. In this case, the BBC accepted that it could not prove the interview with Chelsea took place.

Note that since the intention of the reporter is not a factor in UK libel cases, it is no defence to have been unaware of Zola and Clarke's contracts with West Ham.

The BBC's apology.

SEO vs brand identity

The Sun's headlines are so important to its brand that they shouldn't be compromised for search engine optimisation, Peter Moore argues.

He quotes an example from today's paper the head to a story on the breakup of Jordan and Peter Andre:

Sex with Jordan? That’s out of the equestrian

Wikipedia: the single source

In their obituaries of composer Maurice Jarre, a number of writers included quotes which appeared only on Wikipedia. The Guardian's reader's editor comments in detail.

It turns out the quotes were fake but many serious papers were caught out.

Wikipedia is not the problem: they removed the fake quotes three times. The fake info was only visible for a little over a day. Wikipedia goes to a lot of trouble to reference sources and to draw it to one's attention when there is no verified source. The obit writers seem to have missed that the fake quotes were unverified.

The hoaxer is not the problem: he achieved his aim of highlighting sloppy editorial practices (although there was more wit in the hoax that BBC TV themetune composer Ronnie Hazlehurst had written the S Club 7 hit Reach which also appeared in several newspaper obits via Wikipedia).

My question is this: what is the point of journalism if readers can get the same information direct from Wikipedia?

So, some rules for journalists:

• All facts should be checked with at least two reliable sources
• The origin of facts should be traced to ensure their veracity
• Everything you write should include a high proportion of original material -- otherwise you are just duplicating someone else's effort
• The best way to obtain original and reliable material is to talk to people. Any fool can browse the web
• Good writers have a network of contacts so they have someone to call even when they are up against a deadline

Amy Winehouse's paparazzi ban

Amy Winehouse has won a high court injunction to prevent paparazzi photographers from pursuing her, the Guardian reports. Similar protection was given to Lily Allen in March.

Winehouse and Allen used the Protection from Harassment Act 1997. The act does not clearly define harassment but makes it a criminal offence to cause a person alarm or distress.

If someone feels they are being harassed, they can go to court to seek an injunction to prevent that harassment. Breaching such an injunction is a criminal offence with a maximum penalty of five years in jail or an unlimited fine.

Allen's injunction specifically restricts two photo agencies, Big Pictures and Matrix Photos. Winehouse's injunction also mentions Big Pictures but includes a ban on "persons unknown" pursuing her. This would appear to limit any reporter or photographer from following her.