Writing about medicine can be hazardous for your health
Maria MacLachlan reports on the case of the British Chiropractic Association (BCA) versus Simon Singh.
A year ago, I was blissfully ignorant of how hazardous it can be to write about health and medicine. That changed in May 2009, when I attended the preliminary hearing of the British Chiropractic Association (BCA) v Simon Singh. The case has become a cause célèbre for science writers and may serve as the catalyst for the reform of England’s draconian libel laws, which are having a catastrophic effect on two things dear to any humanist’s heart: free speech and scientific inquiry.
Simon Singh is a science journalist and co-author of Trick or Treatment? Alternative Medicine on Trial. In April 2008, he wrote a piece for the Guardian entitled, Beware the Spinal Trap, which challenged a number of claims made by the British Chiropractic Association. The full story can be found on the Sense about Science website but, in a nutshell, Simon argued that the claims made by the BCA were unsupportable, the BCA were less than pleased and threatened legal action — not against the newspaper, but against Simon Singh personally. The Guardian offered the BCA a 500-word right of reply to Singh’s piece as well as an offer of a clarification in the newspaper’s ‘Corrections and Clarifications’ column. The BCA turned down both offers, demanding that Simon retract his comments and apologise. Simon, convinced that the evidence is on his side, decided to fight the action.
Last week, I attended the latest pre-trial hearing which, because of its importance, was heard by a panel of eminent judges presided over by the Lord Chief Justice. Their decision on the meaning of the words Simon used in the article will be a crucial one and is expected to be delivered in few weeks’ time. At the hearing, the Lord Chief Justice proclaimed he was “baffled” as to why the BCA had brought this action rather than take up the offer of a reply at the time. Why didn’t they just write an article arguing that Dr Singh was wrong and present the evidence that would give the lie to his comments? His Lordship added that, if the case does eventually go to full trial, it will end up costing either Dr Singh or the BCA a vast amount of money. It has been estimated that Simon will end up paying between half a million and a million pounds if he loses.
So why didn’t the BCA use their right of reply? A widely held view — and one that I have come to share — is that England’s libel laws make it easy to stifle criticism, silence challengers and close down important debates about issues concerning public health. It’s expensive to resort to legal muscle but the threat to do so is usually enough to shut someone up. Unfortunately for the BCA, their decision to sue a wealthy high-profile scientist who believes he has the weight of scientific evidence behind him, is backfiring. Simon has said he wants his day in court and that he can finance his defence himself, which is fortunate because even winning would be likely to cost more than what most of us can afford.
A couple of years ago, the Guardian itself was sued by Matthias Rath over articles written about him by Ben Goldacre, who writes the Guardian’s ‘Bad Science’ column and has authored a book of the same name. Rath is a German physician and vitamin pill salesman who went to South Africa, where 6.3 million people are HIV positive and 180,000 die of AIDs each year. Once there, Rath launched a misinformation campaign claiming the life-prolonging antiretroviral (ARV) drugs used to treat HIV patients were actually poisoning them and they should be taking his vitamin pills instead. The Guardian ended up a staggering £175,000 worse off for having successfully defended the action.
Dr Goldacre had the Guardian behind him while Dr Singh is wealthy enough to reassure supporters that he will be “damaged but not destroyed” if he loses. But one man who will lose everything if the judgement goes against him is British cardiologist, Dr Peter Wilmshurst, who is being sued by the American manufacturers of a cardiac device that Dr Wilmshurt had investigated and found wanting. He reported his negative findings to a cardiology conference in the USA and his comments were reported on an American health website. On the grounds that the website might be seen in the UK, the manufacturers are able to use England’s libel laws to sue him. Dr Wilmshurst can’t afford to defend this action and faces financial ruin if he loses but he won’t back down, he says, because he’s a doctor and has taken the Hippocratic Oath.
Unsurprisingly, the action against Dr Wilmshurst has sent ripples of fear through the hearts of editors of scientific journals, who now have to think twice about publishing negative reports of pharmaceutical products or not publishing reports they think are flawed.
Make no mistake; nobody is safe from England’s libel laws. It’s not just professional scientists, doctors or writers who are silenced by them. Everyone who writes a blog is vulnerable but it tends to be those bloggers writing about serious subjects who receive threatening letters from lawyers and who have no option but to remove articles exposing quacks and fraudsters.
In August 2008, the United Nations Human Rights Committee said England’s libel laws “served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work, including through the phenomenon known as libel tourism”.
An example of libel tourism would be Roman Polanski, who has been a fugitive from US justice since 1978, when he confessed to an American court that he’d had unlawful sex with a 13-year old girl. He fled the country before he was sentenced but, rather surprisingly, he still thought he had a reputation worth defending. In 2004, he was able to use England’s libel laws to successfully sue an American magazine, without having to set foot on English soil because our legal justice system obligingly allowed him to give evidence by video link from Paris, where he resides.
I’ve been unable to find a single judge, lawyer or politician who has spoken or written in defence of our libel laws and it remains a mystery to me why it is taking so long to do anything about them. We need libel laws designed to protect individuals from being hurt by malice and the publication of falsehoods. We don’t need libel laws that intimidate the scientific community from publicly challenging dangerous nonsense. As BHA distinguished supporter, Professor Raymond Tallis, argued recently in the Times, the place to settle disputes over scientific claims is the laboratory not the courtroom.
I urge everyone who is appalled and embarrassed by England’s repressive libel laws to support the Campaign for Libel Reform: spread the word, sign the petition and write to your MP.
Maria MacLachlan is BHA celebrant, a blogger and the creator of the Think Humanism website and forum.
The British Humanist Association has supported the Campaign for Libel Reform.