"If I lose £1 million it's worth it for libel law reform," the science writer Simon Singh was widely reported as saying this week. That was even before yesterday's ruling in the libel case brought against him by the British Chiropractic Association.
Going through litigation, I was told once, is like having cancer. It is a grim, grueling, rollercoaster process that takes over your life and may leave you permanently damaged. In the first gleeful WE-WON! moments following yesterday's ruling it's easy to forget that. It's also easy to forget that this is only one stage in a complex series.
Yesterday's judgment was the ruling in Singh's appeal (heard on February 22) against the ruling of Justice David Eady last May, which itself was only a preliminary ruling on the meaning of the passage in dispute, with the dispute itself to be resolved in a later trial. In October Singh won leave to appeal Eady's ruling; February's hearing and today's judgment constituted that appeal and its results. It is now two years since the original article appeared, and the real case is yet to be tried. Are we at the beginning of Jarndyce and Jarndyce or SCO versus Everyone?
The time and costs of all this are why we need libel law reform. English libel cases, as Singh frequently reminds us, cost 144 times as much as similar cases in the rest of the EU.
But the most likely scenario is that Singh will lose more than that million pounds. It's not just that he will have to pay the costs of both sides if he loses whatever the final round of this case eventually turns out to be (even if he wins the costs awarded will not cover all his expenses). We must also count what businesses call "opportunity costs".
A couple of weeks ago, Singh resigned from his Guardian column because the libel case is consuming all his time. And, he says, he should have started writing his next book a year ago but can't develop a proposal and make commitments to publishers because of the uncertainty. These withdrawals are not just his loss; we all lose by not getting to read what he'd write next. At a time when politicians can be confused enough to worry that an island can tip over and capsize, we need our best popular science educators to be working. Today's adults can wait, perhaps; but I did some of my best science reading as a teenager: The Microbe Hunters; The Double Helix (despite its treatment of Rosalind Franklin); Isaac Asimov's The Human Body: Its Structure and Operation; and the pre-House true medical detection stories of Berton Roueché. If Singh v BCA takes five years that's an entire generation of teenagers.
Still, yesterday's ruling, in which three of the most powerful judicial figures in the land agreed - eloquently! - with what we all thought from the beginning deserves to be celebrated, not least for its respect for scientific evidence,
Some favorite quotes from the judgment, which makes fine reading:
Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic.
A similar situation, of course, applies to two other recent cases that pitted libel law against the public interest in scientific criticism. First, Swedish academic Francisco Lacerda, who criticized the voice risk analysis principles embedded in lie detector systems (including one bought by the Department of Work and Pensions at a cost of £2.4 million). Second, British cardiologist Peter Wilmshurst is defending charges of libel and slander over comments he made regarding a clinical trial in which he served as a principal investigator. In all three cases, the public interest is suffering. Ensuring that there is a public interest defense is accordingly a key element of the libel law reform campaign's platform.
The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.
This was in fact the gist of Eady's ruling: he categorized Singh's words as fact rather than comment and would have required Singh to defend a meaning his article went on to say explicitly was not what he was saying. We must leave it for someone more English than I am to say whether that is a judicial rebuke.
We would respectfully adopt what Judge Easterbrook, now Chief Judge of the US Seventh Circuit Court of Appeals, said in a libel a2ction over a scientific controversy, Underwager v Salter: "[Plaintiffs] cannot, by simply filing suit and crying 'character assassination!', silence those who hold divergent views, no matter how adverse those views may be to plaintiffs' interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation.
What they said.