Britain’s libel laws came under the scrutiny of three of the country’s top judges today.
The Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger and Lord Justice Sedley are being asked to rule on an appeal by science writer Simon Singh, who is accused of libel by the British Chiropractic Association (BCA).
Singh was sued by the BCA because of an opinion piece he wrote in the Guardian in April 2008 on the lack of evidence for the claims some chiropractors make on treating certain childhood conditions including colic and asthma.
The BCA alleges that Singh, in effect, accused its leaders of knowingly supporting bogus treatments.
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In May last year, High Court judge Mr Justice Eady, in a preliminary ruling in the dispute, upheld the BCA’s pleaded meaning and held that Singh’s comments were factual assertions rather than mere expressions of opinion – which means that he cannot use the defence of fair comment.
It is a case which has become something of a cause celebre for science journalism, with supporters arguing it will make it harder to openly discuss important issues, and has prompted a campaign for defamation law to be kept out of scientific disputes.
At the Court of Appeal in London today, Adrienne Page QC, for Singh, told the judges: “The appeal raises important issues of principle as to the limits of free expression on matters of public interest, particularly in the context of the fair comment defence.
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“These arise as part of the consideration of whether the judge’s conclusions were wrong.”
Until Mr Justice Eady’s decision the primary defence was one of fair comment. The BCA had made “no allegation that the defendant wrote the words actuated by malice”.
Miss Page said Singh met the “cardinal test” or “touchstone” of a fair comment defence.
During the hearing it will be argued on behalf of the BCA by Heather Rogers QC that there was no error of law on Mr Justice Eady’s part and that the appeal should be dismissed.
In written submissions before the court she said the case was not a debate about chiropractic treatment generally or the evidence that exists as to its benefits or risks – those were matters best debated outside court.
The BCA “acknowledges the importance of the right to freedom of expression, in particular its vital role in the discussion of matters of public interest”.
Chiropractic treatment and the regulation of the profession were examples of matters of “legitimate public interest”, but the right to freedom of expression was not an “absolute or unlimited right”.
The QC said the article contained “serious defamatory imputations of fact against the BCA”, arguing: “This is not a comment case at all.”
Before the hearing Singh said: “I am determined to defend my article as I maintain that it is fair and touches on an issue of serious public interest, namely the health of children.
“My greatest desire is that journalists in future should not have to endure such an arduous and expensive libel process. Cases like mine mean that people are afraid to speak out about whether treatments are worthwhile and effective.”
He stressed that whatever the outcome of the appeal there was still a long way to go.
“It has been almost two years since the article was published, and yet we are still at the preliminary stage of identifying the meaning of my article.
“It could easily take another two years before the case is resolved. As well as the drain on time, the case is financially very damaging and I have already accumulated legal bills in excess of £100,000, and even if I do win my case I will not be able to recover all of this.”
The appeal hearing is set to last all day and the judges are expected to reserve their decision.
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