Bogus is as bogus does

One important detail: this was only a pre-trial hearing, not the main event. If Singh can get this decision overturned, then he can go to the main trial with a chance of victory.

Oh, and the First Amendment won't protect you - if anything you write can be read in England or Wales, you can be sued under English law. Fortunately, English libel law doesn't have any standing, so I can happily say it's a pile of crap.

Every time I teach our courses in ethics and professionalism (for computer scientists), I start with the buzzwords, tag lines, and search terms for our heritage on relevant public policy issues. I have yet to find a student who recognizes the name Peter Zenger.

Duncan Buell said: Every time I teach our courses in ethics and professionalism (for computer scientists), I start with the buzzwords, tag lines, and search terms for our heritage on relevant public policy issues. I have yet to find a student who recognizes the name Peter Zenger.

While I agree with the gist of this article, I must STRONGLY question the implication that the UK has less freedom of expression.

I haven't lived in the UK, only the US and Canada.

Still, at least in some ways, the UK would seem to be less bad than the US.

A common and correct complaint here at PT is that the US mainstream media constantly promotes the idea of a "controversy" with regard to evolution.

Any message to the general US public is driven through the medium of an agenda-driven corporate media (*as always, I add the disclosure that I am an entrepreneur and investor, not at all "anti-business", and that criticism of the actions of individual business entities does not change that*).

Which is worse, strong limits on libel but a moderately intelligent media, or strong freedom of expression - but domination of the airwaves by voluntary propaganda panderers, who, among other things, show strong favoritism for certain religious sects?

Obviously, I'm speaking from my subjective impression of the US media, but I certainly have my doubts.

harold said: strong limits on libel but a moderately intelligent media

@Harold

I would have to disagree. What is happening in GB with this case is that the Guardian called a pseudo-scientific claim bogus -- which it is -- and the judicial system agreed. Essentially this would open the door to any claim being on an equal footing with proven science in a courtroom, including creationism, phrenology, astrology, what have you.

I would much rather have an intelligent court system (which we seem to in the US) than an intelligent media, given the choice.

Sorry that should have been "the judicial system disagreed"

I thought whaling was illegal.

Steve Novella has a good post on it.

Joel -

That's a good point, but then how do you explain that pseudoscientific nonsense is at least equally prevalent and popular in the US, to put it mildly?

It strikes me that this may be one stupid decision and that the condemnation may be premature. Although this should never have even happened, the UK courts may come through in the end.

Note that I'm not defending the UK, which I have never been near in my life, as a bastion of rational thought and intelligent media.

Rather, I'm disputing the suggestion that, however bad the UK may be in these regards, the US is in some way better.

Just as there is science and pseudoscience, there is patriotism and pseudopatriotism.

At this stage in US history, I find it distasteful that any of my fellow Americans would imply that, on any standard related to human rights, the current US is "superior" to the current UK.

We've spent a number of years trashing our own constitution, with purveyors of religious fanaticism and science denial playing a prominent official role.

Declaring ourselves superior to the UK, on the grounds of one silly, undecided libel suit, is at best embarrassing.

We really should get the beams of lumber out of our own eye before looking at the mote in the eyes of someone else.

harold said: Declaring ourselves superior to the UK, on the grounds of one silly, undecided libel suit, is at best embarrassing. We really should get the beams of lumber out of our own eye before looking at the mote in the eyes of someone else.

In the House of Commons, senior Labor Party Member Denis MacShane called libel tourism “an international scandal” and “a major assault on freedom of information,” and he charged lawyers and courts with “conspiring to shut down the cold light of independent thinking and writing about what some of the richest and most powerful people in the world are up to.”

harold, you should read the Simon Singh blog link provided in the story. It will make it clear why this goes a lot deeper than you think.

The entire system of libel law in the UK is a disgrace and litigious bullies are just starting to realise how powerful a tool it can be in silencing dissent. In scientific terms the BCA could have shut Singh up by providing the evidence they claim to have. Instead they sued him. The judge has ruled that Singh's use of the word "bogus" was libellous because it means that the BCA *knowingly* gave bad advice. This was not what Singh meant, and indeed in the very article he is being sued over he defined the term specifically to exclude deliberate fraud but the judge decided that he knew what Singh meant better than Singh did even when Singh categorically stated that he didn't mean that. Now, what makes this especially bad law is that Singh is very unlikely to succeed on appeal on the grounds of the judge having screwed up. All the legal advice coming out of the UK is that the judge being completely wrong on this point *is not grounds for appeal*.

Add to this the following: (i) in British libel cases, the onus of proof is on the *defendant* to show that the statement was not libellous -- the BCA did not have to provide any of the evidence they claim would prove Singh's statement libellous; Singh had to prove his innocence (and remember, by the judge deciding to define "bogus" in the way he did, he made it virtually impossible for Singh to win short of Singh having enough evidence to bring a successful criminal prosecution for fraud against the BCA), (ii) the average cost of defending a libel case in the UK is 140 times the European average (yep, 140x), (iii) British courts allow non-British citizens to sue for libel even if the libel took place elsewhere; there have been many rulings like this, the most astonishing being the *successful* suit by a Saudi businessman against an American author over a book that was not published in the UK -- in that case the businessman won GBP 10,000 in damages...plus 100,000 in legal costs. That is, the outrageous cost of libel actions is part of what makes defending these claims so perilous. To the Saudi businessman, GBP 100,000 was pocket change.

There is a lot more at stake here than one poor decision, and it's a lot bigger than just the UK.

Well stated, Chris. Another related point: IANABL (I am not a British lawyer), but I remember hearing or reading somewhere that truth is not necessarily a defense in a UK libel suit. You can prove that every word you wrote or said about the plaintiff is true, and still lose, if the court decides, I guess, that you shouldn't have said it nonetheless. I read one hypothesis that this bizarre state of affairs is related to the enormous importance that has traditionally been placed on reputation in British values.

Anyone more knowledgeable than myself care to confirm or refute the above?

Phil Plait has also posted on it, including a statement from the James Randi Educational Foundation.

Fixed the link.

General everyday information, the stuff of everyday life, that which informs our daily decisions and is useful for ouselves, our families and our societies; where do I go?
FOX News, or the BBC. If you chose the fromer you are sadly, a moron; if you chose the latter, they may deceive, but considerably less so: Hell they even produce such wonderfully evolutionary friendly doccoes as, "The Human Body" with Robert Winston. Still I suppose "Letterman" can be sciency too.

MPW said: Well stated, Chris. Another related point: IANABL (I am not a British lawyer), but I remember hearing or reading somewhere that truth is not necessarily a defense in a UK libel suit. You can prove that every word you wrote or said about the plaintiff is true, and still lose, if the court decides, I guess, that you shouldn't have said it nonetheless.

Wikipedia English law allows actions for libel to be brought in the High Court for any published statements which are alleged to defame a named or identifiable individual (or individuals) in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them. Allowable defenses are justification (i.e. the truth of the statement), fair comment (i.e. whether the statement was a view that a reasonable person could have held), and privilege (i.e. whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest). An offer of amends is a barrier to litigation. A defamatory statement is presumed to be false, unless the defendant can prove its truth. Furthermore, to collect compensatory damages, a public official or public figure must prove actual malice (knowing falsity or reckless disregard for the truth). A private individual must only prove negligence (not exercising due care) to collect compensatory damages. In order to collect punitive damages, all individuals must prove actual malice.

If you are a UK citizen you can protest the libel laws by signing this petition:
http://petitions.number10.gov.uk/reformlibellaws

Fine, I'm convinced that UK libel laws should be reformed.

The US constitution is a pretty good model. Maybe we should try paying attention to it here in the US.

5 June 2009

"The enemy has become more diverse, says anthropologist Eugenie Scott, executive director of the National Center for Science Education. "Darwin's golden retriever," as she likes to be known, Scott was recently interviewed for Science magazine. In the quoted phrase she may be acknowledging the fact that some who see problems with the mainstream theory of evolution have no agenda beyond science. But she categorizes them all as "the enemy," keeping the discussion strongly polarized and superficial. This tactic impedes scientific progress.

Eugenie Scott: "The mainstream theory of evolution has no credible acount of the origin of life, certainly." Acknowledging this, Scott stubbornly says, "Not yet." Alchemists trying to turn lead into gold probably said the same thing.

Also unexplained are the genetic programs contained within DNA. Darwinan mutation-and-natural-selection is supposed to compose them, but direct evidence for this composing is lacking. Instead, darwinan mutation-and-natural-selection can be seen only to toggle, shuffle and optimize programs that are already present in a given genome. New genetic programs often appear suddenly during evolution; many are known to arrive by gene transfer (HGT). But Scott would minimize the importance of HGT and assert that evidence for the mainstream account of new genetic programs is abundant. In a similar manner, early opponents of Copernicus held that Ptolemaic astronomy was perfectly adequate.

Given the described shortcomings, it is no surprise that a majority of Americans are not satisfied with the mainstream theory of evolution. Apparently, the National Center for Science Education sees a majority of Americans as "the enemy." Such animosity from the science establishment is unwarranted and, to our knowledge, unprecedented."

(from panspermia.org)

Marshall Nelson said: Also unexplained are the genetic programs contained within DNA. Blah, blah, blah.

Interestingly enough, I am listening to a YouTube video about false DMCA claims on YouTube, which is an uniquely US way of trying to suppress other peoples' voices (AIG have used this successfully in the past).

Still, there is no doubt in my mind that the UK libel law is fatally flawed, and should be changed. Probably not to something similar to the US law which allows people like Bill O'Reilly to call people like Dr. Tiller a murderer without any consequences (I would consider that libel).

Given the described shortcomings lies, strawmen, quotemines of actual scientists, and general misinformation promulgated by fearful adherents to extremist religious sects, it is no surprise that a minority of Americans are not satisfied with the mainstream theory of evolution.

there Charlie, fixed that for ya.

Also unexplained are the genetic programs contained within DNA. Darwinan mutation-and-natural-selection is supposed to compose them, but direct evidence for this composing is lacking.

Instead, darwinan mutation-and-natural-selection can be seen only to toggle, shuffle and optimize programs that are already present in a given genome.

New genetic programs often appear suddenly during evolution; many are known to arrive by gene transfer (HGT).

But Scott would minimize the importance of HGT

I have read this article many times and really don't understand the issue being discussed. Yes, the legal principles in Britain and America are different. However, they both have their own advantages and disadvantages.

Anthony said: I have read this article many times and really don't understand the issue being discussed. Yes, the legal principles in Britain and America are different. However, they both have their own advantages and disadvantages.

I quite agree that the law is in error here. Libel law in Britain and, alas, here in Australia, is famous for being byzantine and arcane in its provisions to an insane degree. Lawyers who specialise in it - mainly to reap enormous fees for advice that is always to strike out anything that might be in the least contentious, in a bad light, to the mind of a rabidly paranoid or suppressive litigant with deep pockets. The reason they are never wrong about this is that the principles are so vastly complex and the precedents so conflicting and numerous that there is no knowing what a court might decide in a specific case. If the lawyers do not advise striking the words, and a lawsuit ensues anyway, then they'll be even more circumspect next time, no matter what the ruling might be - and the ruling can never be reliably predicted.

In this case, as the Guardian says, the ruling turns on the meaning of the word "bogus". It is not that this word necessarily or actually means "knowingly false", in the strict dictionary definition. It is whether in the mind of an average person, it might reasonably be taken to mean that. For if it can be taken to mean "knowingly false" in the mind of such a person, then (in that mind) the article was stating that the Chiropractic Association were liars who knew that they lied. That is undeniably libellous. Worse, it cannot, in the nature of things, be proven true. The line of defence, then, was to convince the judge that the word could not mean that; and that line failed. The judge ruled, as a preliminary, that it might mean that.

He is wrong in fact and wrong in principle. I doubt, however, that he is wrong in law, or least, that it would be possible to demonstrate plainly that he is. The law must therefore be changed to reflect both reality and sound principle.

The Common Law has, generally, my deepest respect. The idea that "circumstances alter cases" is one of the deepest insights into human affairs ever made, and I believe that sound, humane law relies on enunciating only general principles in written legislation, and allowing courts to apply those principles, under general instruction. But deeply reluctant as the Parliament rightly has been to go wading into the quicksand of the Common Law on libel, if this is now the law, it must legislate to alter it. This ruling is an intolerable affront to free speech. It must be struck down.

I am writing to my own Members of Parliament, State and Federal, about this.

I’m grateful for the First Amendment of the U.S. Constitution for several reasons, and one of them is the right to call bogus claims “bogus.”

"I would much rather have an intelligent court system (which we seem to in the US) than an intelligent media, given the choice."

It's really not the court system that's at fault here, no matter how one feels about Justice Eady. It's the law that'st he problem.

"The judge has ruled that Singh’s use of the word “bogus” was libellous because it means that the BCA *knowingly* gave bad advice. This was not what Singh meant, and indeed in the very article he is being sued over he defined the term specifically to exclude deliberate fraud but the judge decided that he knew what Singh meant better than Singh did even when Singh categorically stated that he didn’t mean that"

Unfortunately, it doesn't matter one jot what Singh meant, according to English law. What matters is what a reasonable person would take him to mean. And I have to say that a reasonable person would take Singh's statement to be defamatory (though in this case true), even if he/she didn't infer it to mean that it was conscious fraud, and I also think the "fraud" reading is far from unreasonable. That said, the non-fraudulent interpretation would have been much easier to defend through justification, and I'm very glad that Simon is appealing - and I'm going to be backing up my support with cash when he launches a defence fund.

Again, I think the critical focus on the judgement is both legally and pragmatically wrong. Even Singh admits his appeal is unlikely to succeed. What is important is that the law itself is changed so that freedom of speech and scientific debate are protected from litigation that is designed to foreclose criticism rather than protect a justified reputation.

"Ignorance of the law is no defense, and since they'll never tell you what the law is, you're defenseless. Every business must pay protection money to lawyers."

Nicholas von Hoffman

It's worth noting that the difference between US and UK law is not that great (which is not to say that UK law might not benefit from reform).

If I say "I believe astrology is a pseudoscience", as I do, either here, or in the UK, that's protected.

If I were to say, as I never would, but illustrate here solely as a contrast, "I believe that some or all astrologers secretly consider astrology to be an invalid pseudoscience, but practice it anyway for profit", something which I have no evidence for, I would very much be open to being sued by any sincere astrologer whom I defamed, in either the US or in the UK.

That's fairly straightforward. I can call someone a crackpot, that's my opinion, but if I call them an overt fraud, which has major legal implications, I had better be able to back up the accusation.

Now, I often do speculate on the motivations of creationists, but I always make it clear that I am speculating, and give reasons why my speculation may be understandable.

I think this UK decision seems to be wrong, but because of semantics. It has been mistakenly assumed that Singh implied that chiropracters themselves know that their claims are bogus, yet practice anyway.

There may be some fine lines.

However, a good practice is to stick to what you know.

For example, I feel confident in saying the William Dembski makes irrational arguments presented in the style of mathematical or philosophical points. I can say that I know he receives money for doing this, and I can state that a reasonable person might believe that this biases him in favor of continuing to do it, whether consciously, unconsciously, or both. I can state that he is documented to make contradictory statements, depending on which audience he speaks in front of. I can state that, based on his public presentations on his web site and on television, I personally believe that he may have suboptimal mental health. I can note that I am somewhat qualified to draw that conclusion, but that an intelligent layman might also feel the same way.

I can say all that and more, and I'm confident that I can say it in the US, Canada, the UK, or Australia, because I can back it all up.

harold said: It's worth noting that the difference between US and UK law is not that great (which is not to say that UK law might not benefit from reform). If I say "I believe astrology is a pseudoscience", as I do, either here, or in the UK, that's protected. If I were to say, as I never would, but illustrate here solely as a contrast, "I believe that some or all astrologers secretly consider astrology to be an invalid pseudoscience, but practice it anyway for profit", something which I have no evidence for, I would very much be open to being sued by any sincere astrologer whom I defamed, in either the US or in the UK. ---SNIP---

And of course, IANABL!

GvlGeologist, FCD -

I'm assuming that statements along the lines of "so and so is a criminal of some sort" can be actionable even if preceded by the words "I believe".

It seems pretty clear to me. My strong right to criticize you ends where making accusations that I can't back up begins.

Actually, no accusation that can't be backed up is ever justified. Accusations that have no serious relevance are ignored for pragmatic reasons.

The problem in the Singh case is that he clearly made one statement, which he can easily back up - "chiropractic claims appear to be exaggerated" (my reasonable paraphrase). He can back that up by reviewing the literature, or noting the lack of it.

He is being treated as if he made a different statement - one that he cannot possibly back up. He is being treated as if he made a claim about the private mental opinions, and thus, deliberately fraudulent intent, of chiropracters.

If this type of error is more prevalent in the UK, then reform of libel laws may be indicated.

However, neither the US nor the UK protects speech that levels specific, relevant false accusations at specific individuals or definable groups of individuals, and neither should.

Freedom of expression is NOT, as one commenter above put it, freedom to say anything about anyone in any venue.

Thanks, Harold, for your comments. It looks like there are two separate issues here (I think other commenters have noted that here as well) - first, that it looks like the libel law in this case is being misapplied, and second, that the UK's libel laws are seriously screwed up.

I guess I agree with your statement that an accusation of criminal activity, even if modified and weakened by "I believe", cannot be taken lightly. On the other hand, in the US, with considerably different libel laws, we certainly see statements similar to that all of the time, especially in political campaigns. Witness many of the statements made about John Kerry by the Swiftboaters, and to a lesser extent, about George Bush's National Guard career. Some of these statements were certainly incorrect and probably could have led to libel suits even in the US. From what I have read in this posting and follow up comments, they certainly could have led to libel suits in the UK. I have to admit, seeing the Swiftboaters forced to "prove" their claims about Kerry does have a bit of personal appeal, but I'd still prefer to keep our fairly liberal freedom of speech rights.

However, only by the most tortured logic can the use of the term "bogus" be taken seriously. As has been pointed out, Singh has explicitly defined what he means by the term, and I think it likely that his rights will be upheld on appeal. Unfortunately, the suit still has a chilling effect on free speech, and we can only hope that the UK will revise their libel laws in the near future.

GvlGeologist -

I certainly agree with everything you said, with the minor caveat that the evidence for George Bush having not performed his national guard duty up to the usual standard is fairly decent, although circumstantial.

If some fake evidence was also produced, whether by his enemies, or by his own allies to make the unfaked allegations appear less credible, that doesn't make real evidence less real.

I feel quite comfortable saying that, based on what I know about Bush's own assessment of his lifestyle at the time, and the investigations I have seen, that I slant strongly, in the lack of further evidence, toward suspecting that George W. Bush was a less than ideal national guardsman.

The evidence is fairly unequivocal that he was given a highly desirable national guard position which precluded service in Vietnam due to his social connections, jumping to the front of a long waiting list.

The fact that further evidence suggests that he proceeded to not even do a decent job of being in the national guard creates, for me, an unfavorable subjective opinion.

None of this is relevant except as an example of the fine points that come up when discussing libel law, but I can't help noting that John Kerry was actually in combat in Vietnam. Thus, even if John Kerry were a terrible sailor and George Bush an ideal national guardsmen (and the evidence does not suggest either of these, but even if), it is objectively accurate to state that John Kerry endured far more risk.

For example, I feel confident in saying the William Dembski makes irrational arguments presented in the style of mathematical or philosophical points. I can say that I know he receives money for doing this, and I can state that a reasonable person might believe that this biases him in favor of continuing to do it, whether consciously, unconsciously, or both. I can state that he is documented to make contradictory statements, depending on which audience he speaks in front of. I can state that, based on his public presentations on his web site and on television, I personally believe that he may have suboptimal mental health. I can note that I am somewhat qualified to draw that conclusion, but that an intelligent layman might also feel the same way. I can say all that and more, and I'm confident that I can say it in the US, Canada, the UK, or Australia, because I can back it all up.

Harold,

as far as the Singh lawsuits goes, I would refer you to the Skeptics Guide to the Universe podcast 201 to educate yourself. You can hear Mr. Singhs opinion on US versus UK libel laws.

Check it out. and please don't lay your increasing caps on me.

Paul

Actually, I think it unlikely that any appeal will be upheld, unless it goes to the Law Lords and they actually use their rarely-exercised power to in effect correct the Common Law by fiat. The word "bogus" was actionable, in the opinion of the court, because the court held that an ordinary person might construe it to mean "knowingly false, ie fraudulent", rather than, as Singh meant it, "false in the sense of incorrect, not made out in fact".

That opinion is, as far as I can tell, unexceptionable. I think it quite likely that the word, in common usage, actually does mean "knowingly false", and if it means that, the rest follows. If they profit by making "knowingly false" claims, then the Chiropractic Association is engaged in fraud, a criminal enterprise. A published statement to that effect is undeniably libellous. Further, such a statement cannot be substantiated. The Chiropractic Association was at pains to urge that they are of the sincere opinion that their claims are factual, whatever Mr Singh might think of the claims or of them, and that therefore any imputation that the claims were "knowingly false" is untrue.

Now, you may say that this is overly tender of reputation, and the logic behind it "tortured". Quite so. I agree. I also believe that the law is wrong in not allowing at least part of the Humpty Dumpty defence: "When I use a word, it means what I want it to mean." If what is meant by the word is clearly stated in context, that is the meaning that should be imputed to it, unless this would be actually perverse, and the judge's opinions of what the common man might think should be immaterial in such a case.

Both of these aspects of the current law should be addressed in legislation; but the position now existing, I believe, represents the law in Britain as it stands.

John Kerry was a decorated veteran - Bronze Stars are not handed out for having neat handwriting - who was engaged in combat during the Vietnam War. At his country's call he went into harm's way and served honourably. That much is on the public record. Much later, he was smeared for blatantly political reasons.

George Bush, jnr, was eased by family connections into a safe and not-very-onerous place in the Air National Guard, where not only did he not see active service, let alone combat, but his attendance record would most likely have precipitated disciplinary action, were he not who he was. That much is also on the public record. Much later, he posed in a flight suit on an aircraft carrier, with the intention of imputing to himself a history that he did not actually possess.

I know which record I prefer.

Paul -

Thanks for the reference.

Of course, I've already said more than once that I agree that UK libel law needs reform, I've made a few 100% valid points about libel in general which you did not address, and I've used caps only in addressing an off-topic post by an evolution denier, and used them in a relevant way in that context. So back off.

John Kwok -

Thank you for reminding me. I had literally forgotten about the "bioterrorism" incident.

Amazing that this can all be about a word. "Plaintiffs would now like to call Bill S. Preston, Esq., and Ted Theodore Logan, to discuss the meaning of the term 'bogus'."

:)

"If I were to say, as I never would, but illustrate here solely as a contrast, “I believe that some or all astrologers secretly consider astrology to be an invalid pseudoscience, but practice it anyway for profit”, something which I have no evidence for, I would very much be open to being sued by any sincere astrologer whom I defamed, in either the US or in the UK."

I think a good lawyer would be able to convince a judge that the vagueness of the "some or all" construction means you haven't identified anyone in particular. But, in general (and leaving out a few details), if you make a statement of fact that would lower the repuation of an identifiable person in the eyes of a reasonable person, then you have libelled them under English law. You must then provide a defence, of which truth is one.

GvlGeologist: With regard to US political campaigns, US libel law since Sullivan vs NY Times has an exemption for officials and other people who voluntarily place themselves in the public eye - these people can only be libelled with "actual malice". This is why libel suits are very rare in US politics, and also why the burden of proof is on the other foot. In England (and Wales, and Australia) the plaintiff has to establish defamation, but it's very, very easy to do so. Everyone is assumed to have a reputation to protect, and the plaintiff doesn't have to prove actual damage, just potential damage in the eyes of a reasonable person. So while in the UK the case hinges on the the defendant's attempt to justify the statement as true (or occasionally on some other defence such as it being fair comment), in the US it usually hinges on whether the plaintiff can prove actual malice.

Now there is actually a recently introduced public interest defence in England - commonly known as the Reynolds defence - but it involves a very strict series of tests as to whether the defamatory statement was made in good faith as part of a process of responsible journalism. There have only been a handful of successul applications of this defence.

harold said: Paul - Thanks for the reference. Of course, I've already said more than once that I agree that UK libel law needs reform, I've made a few 100% valid points about libel in general which you did not address, and I've used caps only in addressing an off-topic post by an evolution denier, and used them in a relevant way in that context. So back off. John Kwok - Thank you for reminding me. I had literally forgotten about the "bioterrorism" incident.