English libel laws and science reporting
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A couple of days ago, Olivia Judson discussed the effects on science writing of the execrable state of English libel law, with some details of the British Chiropractic Association's libel case against Simon Singh, and a bit about Mattias Rath's case against Ben Goldacre: "Cracking the Spine of Libel", NYT, 9/15/2009. There's an excellent list of links at the end of her post.
We discussed a central linguistic aspect of the case against Singh here a few months ago ("Knowing bogosity", 4/11/2009).
Ginger Yellow said,
September 17, 2009 @ 8:08 am
"In a preliminary hearing, the judge ruled that bogus means deliberately dishonest, rather than a lack of evidence; he also ruled that Singh had written a statement of fact, not opinion, something that will make the case much harder to defend."
This passage is ever so slightly misleading, legally speaking. Eady ruled that the whole passage containing bogus implied deliberately dishonesty, not just "bogus". I firmly believe it's the "happily promotes" part that is going to scupper Singh's defence, rather than just the "bogus" part, unless of course he can come up with some solid proof of deliberate dishonesty. Without the happily promoting, it would have been much easier to argue that a reasonable person would not infer deliberate dishonesty from "bogus treatments". While I have serious issues with Eady's jurisprudence, I happen to think he was right on this one.
[(myl) FWIW, "happily promotes" suggests carelessness rather than dishonesty to me, but neither of us has provided any evidence beyond our unsupported opinions, and neither did Eady.]
Paul said,
September 17, 2009 @ 8:11 am
It's just occurred to me that the judge in the Singh case is Mr Justice Eady, who has a recent history of making linguistic pronouncements in high-profile cases. He was the one who was involved in the Max Moseley case, in which the son of a high-profile English fascist won a libel case against what I hesitate to call a "newspaper" (the News of the World). The NotW had suggested that Moseley's use of German in a party with prostitutes had meant it had a Nazi theme.
The BBC reported at the time that Moseley had said "German […] somehow sounds appropriate for a bossy, dominant character. It is a harsh-sounding – rather than a romantic – language". (I know the BBC is not flavour of the month at LL Plaza but let's just say compared to the News of the World you shouldn't be complaining at all).
Anyhow, in Eady's approved judgement he said: "As was further explained, to many English ears at least, [German] is perceived as having a harsh and guttural sound and is thought to be more suitable for use by those playing a dominant role in S and M scenarios than (say) French or Italian. Apparently Russian might have also been suitable, but unfortunately none of the participants spoke Russian."
The man can be forgiven for not having a very developed sense of the use of terms like "guttural" but perhaps he should have been more sceptical, since there is no end of evidence that stuff like this is just social stereotyping and nothing objectively to do with what language sounds like. Perhaps his domain of ignorance extends to semantics and pragmantics as well as phonetics. It is to be hoped that judges are wise enough to seek expert help where their own knowledge is lacking. It's just that not enough people seem to realise that there are professional people who dedicate their lives to studying language technically and scientifically. Let's bang the linguistics education drum again!
Ginger Yellow said,
September 17, 2009 @ 9:36 am
Mark: True enough, but that is what Eady based his decision on.
It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.
13. It is alleged that the claimant promotes the bogus treatments "happily". What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.
bianca steele said,
September 17, 2009 @ 9:56 am
I think there is some confusing lack of specificity as to agency here. To say "it is known" that a remedy is a quack remedy (thus inefficacious), is not to say an individual might not believe the remedy to be efficacious. W/r/t individual acts it should be the individual's beliefs that are important in a legal context–not the common knowledge of the community.
And point #13 seems strange. Is it offensive merely to paint a picture of a person who likes to believe his favorite set of remedies is inefficacious, then ridicule this picture?
But I am quite sure I am the one who's missing something . . .
bianca steele said,
September 17, 2009 @ 10:01 am
s.b. "set of remedies is efficacious"
Ginger Yellow said,
September 17, 2009 @ 10:42 am
I think you have. Eady's saying that Singh is alleging that the BCA knowingly presents inefficacious treatments as efficacious.
All that said, though, you could arguably construct a defamation case under English law even if it wasn't based on knowing the treatments are inefficacious. After all, you'd think that it would harm the reputation of a professional association for medical practictioners to allege that it doesn't even know whether its members' practice is effective. Carelessness, as Mark puts it, is not exactly a virtue among doctors.
Mark P said,
September 17, 2009 @ 11:25 am
Can an organization sue for libel in the US? I assume that organizations or companies can sue for some kind of damage to their reputation and therefore their ability to make money, but I thought only an individual could be libeled in the US.
peter said,
September 17, 2009 @ 12:10 pm
Thus far, as in McDonalds' libel case against the McLibel Two, we have a large organization taking legal issue with an obscure written statement, thereby bringing it to much wider public attention and circulation than it ever had originally. This is true even if they win the case! One wonders what rules such organizations use for inference, if they can't reason their way beforehand even to that consequence of their action.
bianca steele said,
September 17, 2009 @ 12:10 pm
GY,
I don't see it. I'm not certain, but Singh's statement seems ambiguous between promoted treatments which are widely considered bogus and promoted treatments which they knew were bogus.
In other words, there is more than one way it could be interpreted. As for Eady's decision, if others were not saying his opinions are sometimes dubious, (and if I were not in a temporarily cynical mood) I would probably assume the decision correctly reflects the law, and that there is some reason known only to those trained in the law why the text is confusing.
Ginger Yellow said,
September 17, 2009 @ 12:56 pm
"In other words, there is more than one way it could be interpreted."
Indeed there is. But under English libel law, what matters is how a reasonable person would interpret it, not how it can be interpreted or how it was intended. Eady claims that it would be interpreted by a reasonable person to mean deliberate dishonesty (and I agree that that is the most reasonable interpretation, though not the one intended nor the only reasonable interpretation).
As for Eady, his decisons are indeed sometimes dubious, but more in terms of process (ie what evidence is admissible) and application of the letter of the law to new contexts, than in terms of applying the law in familiar contexts. Basically, he seems to bend over backwards to be favourable to plaintiffs, in a legal framework already heavily stacked against the libel defendant, and he's extended the jurisdiction of English courts far beyond what is reasonable.