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)
"One glimmer of light is the
standard of proof required"
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.
- 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
- 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.