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The Spinal Trap Strikes Back PDF Print E-mail
Swift
Written by Naomi Baker   

On April 19, 2008, The Guardian published a piece by Simon Singh, called “Beware the Spinal Trap”.  (It was subsequently pulled, although I found it archived on the internet. He gives a brief overview of the procedures and claims of chiropractic, as well as statistics about the number of people who have been seriously harmed or killed by chiropractic treatment). In the article, he said:

The British Chiropractic Association (BCA) claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence.  This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments. (emphasis added)

 

Last summer, Trick or Treatment: The Undeniable Facts about Alternative Medicine was published.  Dr. Singh co-authored the book with Dr. Edzard Ernst, who is the world's first professor of complementary medicine and who was trained in a homeopathic hospital in Munich.  Although I know a few physicians who criticized the book for not being critical enough on complementary and alternative medicine (CAM), the writers attempted to present a neutral evaluation of the research and studies in several aspects of CAM, including chiropractic.  After a careful discussion of the studies, they concluded that the evidence for the efficacy of chiropractic did not exist outside of placebo and possibly some mild benefits for the relief of lower back pain, but advised that a trained physical therapist could provide the same benefits with a lower possibility of potential harm from injury.   I read the book, and highly recommend it to anyone interested in medicine, CAM, or skepticism. (Or fans of Randi: his 1988 testing of Jacques Benveniste‘s claims is covered in the chapter on homeopathy.)

The BCA asked Dr. Singh to retract his remarks about chiropractic being bogus treatment and potentially harmful, as being factually wrong, defamatory, and damaging to their repuation.  Dr. Singh refused.  In June 2008, the BCA issed libel proceedingss against Dr. Singh for the remarks in his Guardian article.  Not being familiar with British law (or much US law, for that matter), my research indicates that in English libel law, the claimant (BCA) must show they have been defamed and that their reputation has suffered, and that the defamation is in a permanent form. The BCA is claiming this.  In contrast to U.S. law, the defendant then has the burden of proof to show that he did NOT cause the injury.  The loser must pay for the court fees, which can be considerable, and this aspect tends to keep most parties from fighting the legal actions.

Yesterday, the English High Cout rejected Dr. Singh’s claims that his remark was not defamatory and that it was a fair comment.  Mr. Justic Eady held that the remark was defamatory of the BCA in exactly the way that they had claimed, and that the remark was not a ‘comment’ but rather a “serious defamatory allegation of fact against the BCA”.  He was ordered to pay the costs of this preliminary hearing within 28 days (approximately US$35,000), and his initial application for permission to appeal to the Court of Appeal was refused.  At this point, Singh can now challenge that decision to the Court of Appeal or go to trial, where he must prove that the BCA was not harmed.

One aspect of this outcome, that the defendant must bear the burden of proof, is a bit strange to most Americans, who are used to the claimant proving injury.  However, the more chilling aspect is the specter of censorship on anyone who wishes to dispute the claims of the pseudoscientific therapies, presumably including acupuncture, herbal medicines, psychic healing, or any other quack profession.  As opined in the Telegraph: “No doubt, the case will be followed closely by the practioners of other much-maligned branches of alternative medicine, such as homeopathy, which has been trumpeted by the Prince of Wales.”  No doubt, indeed.

(Note:  Any mistakes in my post about the British legal system are mine alone)

Naomi Baker is a chemical engineer and Technical Director of an energy technologies company.

 

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written by John Halton, May 07, 2009
I'm not a libel lawyer, but as I understand yesterday's hearing was on the preliminary question of what the nature of Mr Singh's statement was, not whether it was true. The court has not held that Mr Singh's statement about homeopathy was untrue (that's for the trial to decide), merely that it was in the nature of an "assertion of fact" rather than being "comment". On that basis, the court's decision strikes me as entirely correct - even though I personally hope Mr Singh wins his case overall.

If the court had decided the statement was "comment", then there would have been no need for a trial, since "comment" isn't libellous. The fact that the court has decided the statement was an "assertion of fact" does not mean the court has decided the statement was untrue. On the contrary, that is what will now be decided at the trial.

Unfortunately, the English libel system does now require Mr Singh to prove that the statement was true, rather than the BCA having to prove it was untrue. This is a serious failing in English libel law. But in any event yesterday's hearing means that the claims of homeopathy will be tested by evidence given in open court, which should be interesting to watch.

In summary: your post seemed to imply that the court has decided that Mr Singh's statement was untrue, and that now Mr Singh has to prove it didn't damage the BCA. Instead, the court has decided that Mr Singh's statement was an assertion of fact, and now Mr Singh has to prove that it was true.
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written by johnhalton, May 07, 2009
D'oh! Not enough coffee this morning. To paraphrase Dr Spooner: in the comment I have just written, wherever I have said "homeopathy", I have of course meant "chiropracty". smilies/smiley.gif
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written by philandstuff, May 07, 2009
Libel laws like these are exactly the reason that Christopher Hitchens fled to a country where freedom of speech is absolute. Reputation should be earned by deed, not imposed by legislation.

On top of that, the English libel lawyers Schillings and Carter-Ruck charge such extortionate fees that it is rare to see a libel case end in any way other than a) one party going bankrupt, or b) an out-of-court settlement. Even if Singh were to win his case, there is nothing to stop the case being appealed to the Court of Appeal and then to the House of Lords until Singh ran out of money. Then, being factually accurate is truly no defense; the only defense is being filthy rich.
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written by GeekGoddess, May 07, 2009
I'm not a libel lawyer, but as I understand yesterday's hearing was on the preliminary question of what the nature of Mr Singh's statement was, not whether it was true. The court has not held that Mr Singh's statement about homeopathy was untrue (that's for the trial to decide), merely that it was in the nature of an "assertion of fact" rather than being "comment". On that basis, the court's decision strikes me as entirely correct - even though I personally hope Mr Singh wins his case overall. You are correct, and I hoped I did indicate that this was preliminary and that he must now go to trial, in the last two paragraphs. The trial would be to determine whether BCA was harmed by his statement.
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written by MadScientist, May 07, 2009
One thing about the US system is that the truth is not libel, so as long as you can demonstrate that what you said is true the other side can't win (well, in principle - in practice you need enough money to make your court appearances to prove your case). However, in Australia (and odds are they just ape UK law in this matter), you can sue people for causing a loss to your business - it doesn't matter that what the other party said was true. I don't know who bears the burden of proof though - whether the plaintiff is required to prove the damages and its cause or if the defendant must prove that they didn't cause any damage; in any sensible system it is the plaintiff who must prove their case.
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written by rosie, May 08, 2009
As I understand it (IANAL) Singh still has the defence of "truth", and if any of the examples cited in the article are capable of proof (which I would certainly expect to be the case - he is a reputable scientist and no fool) then the final hearing cannot fail to exonerate him. Singh needs people who have been harmed by chiropractic to stand up and be counted, those of them that can still stand up, anyway.
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written by Laundry Matt, May 08, 2009
@John Halton
Unfortunately, the English libel system does now require Mr Singh to prove that the statement was true

Well, it does seem fair that the person to make a claim ought to prove it. Although in this case there is also something to be said for chiropracters proving efficacy of their 'treatments'.

Even aside from that, isn't there the question whether any harm was really done to the BCA's reputation? If its members treat the same number of patients as in other years, I don't think they can claim that much damage was done. And I rather suspect the type of person to use their services won't be much dissuaded by skeptical claims.
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written by JuJu, May 08, 2009
I was at the court yesterday, and the surprising outcome hinged on Justice Eady's interpretation of the one word which appears in the quote above.

First a bit of background- There are two options for the defense, one being that the statement was not defamatory but merely opinion or comment, the other that the statement was defamatory but that it was justifiable. The judge's finding that that the statement was defamatory does not in itself mean that Simon's case is lost, only that he would have to show that his remarks were true. This is what he had expected to happen, and prepared a case based on backing up his written claims that chiropracty lacks evidence.
What was surprising was that the judge interpreted Simon's use of the word bogus to mean that he was saying that not only did chiropracty not work, but that the BCA knew it didn't work and were knowingly relieving people of their money for little in return. This means that in order to use the 'truthfulness' defense he would have to bring evidence to prove that the BCA are complicit in a scheme to defraud people rather than simply ignorant.

This would be impossible to prove and Simon is surprised that his article was interpreted by the judge in this way as he has never alleged that the BCA were crooks and has written elsewhere that most ALt Med practitioners are deluded, rather than criminal, and will be appealing on the grounds that Justice Eady misinterpreted that one crucial word. If this appeal succeeds, then he will be back on scientific grounds, and will go to trial with the burden only of proving that chiropracty cannot treat asthma.
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written by johnhalton, May 08, 2009
JuJu: thanks for the clarification. It'll be interesting to see how that's dealt with on appeal. In any event, I don't think the BCA would be too thrilled by an outcome in which the judge finds that chiropracty is bollocks, but the BCA were just honestly deluded about it. Not least because that would sound like a recipe for nominal damages and a socking great legal bill for the BCA. (Wonder if Singh's made a payment into court yet, and if so how much?)

LaundryMatt:

Well, it does seem fair that the person to make a claim ought to prove it.

I assume that's the rationale. However, the unintended consequence of this is that it hampers freedom of speech.

Isn't there the question whether any harm was really done to the BCA's reputation?

I'm sure it's done some damage. So really this becomes a matter of calculating damages, rather than whether Singh is liable in the first place.
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written by JasonPatterson, May 08, 2009
Out of curiosity, if (when???) Singh wins in the end, does either the court or plaintiff cover his expenses, or would he have to try to sue to recover his losses, or what? Anyone know?
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written by johnhalton, May 08, 2009
If Singh wins, he should get most of his costs back off the BCA. Not all, though, as they are subject to "assessment" by the court.

Even if he loses, he could still get much of his costs back if he'd made a payment into court (i.e. a formal payment in settlement) which was more than BCA was awarded in damages. This is a very important tactical issue for parties in litigation, as a payment into court can make it much riskier for the claimant to continue their action.
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Nostradamus vs Randi..., Lowly rated comment [Show]
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written by Kuroyume, May 08, 2009
@dennisjones: Oh yeah, that convinced me (not). Which of Nossie's quatrains has been irrevocably shown factual (barring the tricks of alpha-numeric substitution, rearranging of letters, and seeing what you want to see after the fact)? Supposedly, he and the Mayans have the 'world' ending in 2012 C.E.. Excusing the vagueness of this (does the Earth explode, do humans go extinct, the universe go away, anything, Bueller, Bueller?), I absolutely expect nothing of interest to happen in 2012. There are legions of religious claims to the 'end times' and rapture which have come and gone. And these are supposedly revealed by 'God'.

The good thing is that if the world does end :rollseyes: you can't say 'we told you so' anyway because we'll all be dead. Yes, you lose; No, I win. :thumbsup:
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Comment Board Admins
written by Griz, May 08, 2009
I don't know if you've noticed that dennisjones is spamming all the comment sections with his Nostradamus post. You might want to banninate him.
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written by Kuroyume, May 08, 2009
Definitely a loon.

Total solar eclipses happen all the time (and they ALL depend upon your location on the Earth to attain that definition): http://eclipse.gsfc.nasa.gov/eclipse.html

A six-legged lamb is a 'DIVINE MONSTER'. Okay. Meds, please. And what does Belgium have to do with it? I thought the end of the world started in Armageddon.

Maybe a couple of beers will make this even funnier. smilies/wink.gif
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written by Kuroyume, May 08, 2009
I don't know if you've noticed that dennisjones is spamming all the comment sections with his Nostradamus post. You might want to banninate him.


I concur. This guy isn't posting anything of use. It is just spam. Ban, block, rinse, and repeat.

But I definitely recommend going to the indirectly linked website (nostradamus.atspace.com) for a good laugh. It has divine monsters, antichrists, conspiracy, bad correlations, and all.

@dennisjones: why couldn't 'the new land = Guatemala'?

I swear I'm not snickering... smilies/grin.gif
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dennisjones
written by JeffWagg, May 08, 2009
Dennis Jones is also known as Dennis Markuze. He's been pulling this stunt for years. Yawn. I'll continue to ban him as he pops up.
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More Legal info
written by Michael K Gray, May 08, 2009
The London Lawyer who blogs under the pseudonym of "Jack of Kent" has a more detailed legal analysis of this process, and I assume will be updating his blog on this case.
See:
http://jackofkent.blogspot.com/
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@b John Halton
written by BillyJoe, May 08, 2009
your post seemed to imply that the court has decided that Mr Singh's statement was untrue

Only if you read what was not there. smilies/wink.gif

BJ
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Bogus treatment or bogus practitioner?
written by BillyJoe, May 08, 2009
The definition of the word "bogus" is not the problem here. The problem is whether that word was intended to apply to the treatment or the practitioner himself.

Simon Singh clearly used it in reference to the treatment as his following paragraph demonstates. However, the judge has decided that he used it in reference to the practitioners.

Bizarre!

If I understand correctly, Simon Singh can appeal on this basis but, going on precedent, an appeal on this basis is extremely unlikely to succeed.
Also he cannot go to court to prove that the practitioners are bogus because, firstly, he doesn't believe that is the case and, secondly, it would be almost impossible to prove anyway.
If this is the case he has no choice but to settle.

Double bizarre!
And really sad.

BillyJoe
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RE: More Legal info
written by Food, May 09, 2009
written by Michael K Gray, May 08, 2009
The London Lawyer who blogs under the pseudonym of "Jack of Kent" has a more detailed legal analysis of this process, and I assume will be updating his blog on this case.
See:
http://jackofkent.blogspot.com/

And indeed he has, a direct link: http://jackofkent.blogspot.com...beral.html
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written by Basscadet, May 09, 2009
The Quackometer has a nice article about the homeopaths' answer to the above book
http://www.quackometer.net/blo...-and.html

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http://www.quackometer.net/blo...-and.html
written by BillyJoe, May 09, 2009
You can't write a link like that!!!
What were you thinking???

BJ
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written by Food, May 09, 2009
Maybe he copied the link text (rather than the url) from some other blog
I think this is the one: http://www.quackometer.net/blo...t-and.html
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written by BillyJoe, May 09, 2009
That's it.
I must have read it at some point because I see I have replied to it.
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Legal Update
written by Michael K Gray, May 10, 2009
"Jack of Kent" has written a follow-up analysis of Simon's legal options.
http://jackofkent.blogspot.com...next[url]
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written by Michael K Gray, May 10, 2009
Damn!
How do you do URLs correctly in this thing?
Try again:
"Jack of Kent" has written a follow-up analysis of Simon's legal options.
what-should-simon-singh-do-next
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written by AndyD, May 11, 2009
I commented here last night and received a "post will be checked by admin" message I'd not seen here before. My comment, dealing with posting URLs and Australian defamation law, has not appeared. What gives?
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written by BillyJoe, May 11, 2009
I received that post in my email but, unfortunately, I deleted it.
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Okay, I'll try again shall I?
written by AndyD, May 11, 2009
Are comments usually pre-moderated? I hadn't noticed before.

The important bit (if anything about my comments can be considered "important") was that Aussie defamation law may not be perfect but is somewhat friendlier than British law (since 2006).

My link page* dealing with (mainly Australian) blogging and the law.

*I am NOT a lawyer, it's just some useful links. Take from them what you will.
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written by Mr. Science, May 12, 2009
I'm crushingly disappointed - for a second I thought this post was titled:
Spinal Tap Strikes back.

Now that would have been cool. smilies/cheesy.gif
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JoK Update - Attn: British dwellers
written by Michael K Gray, May 13, 2009
Another update is available on the "Jack of Kent" Lawyer's blog...

"THURSDAY, 14 MAY 2009
BCA v Singh: Update and Roundup
I understand that Simon Singh will announce whether he will appeal on Monday 18 May 2009 at a public support meeting to take place in London at 6.30pm.
The venue will be the Penderels Oak, the usual meeting place of London Skeptics in the Pub.
As well as Simon Singh, the leading UK journalist Nick Cohen will be speaking. Other speakers are currently being confirmed.
(For further updates see the Facebook site and my Twitter.)
I understand that a fund is being considered either to support this case (though third party funding of UK litigation is a complex area) or as a distinct legacy fund to support the ongoing scrutiny of the promotion of CAM. A dedicated website on this case, and the issues relating to the promotion of CAM, is also being prepared. More details to follow.
Many thanks indeed to everyone who took the time to make such highly constructive comments and suggestions as to what he should do next. I understand each of these these contributions - including the proposed Heresiarch manoeuvre - have been considered by Simon and his team.
Particular regard should be given to the comment of "Richard Keen" - actually known to me to be a leading libel specialist - that the judge may have been influenced by the word bogus in the context of "happily promote" and that the defamatory passage as a whole needs to be borne in mind.
This story has now been picked up more widely on the web.

Two posts stand out in particular.
The bestselling writer and comedian Dave Gorman powerfully criticises the potential implications of the ruling - see the Second Thing here.
And the psychologist (and excellent blogger) Petra Boynton provides a thoughtful and humane account of the the experience of a writer actually being threatened with such libel actions.
Both posts are - for me - "must reads".
You may also be interested in my own article in this week's New Scientist.
Simon Singh suffered a bad setback a week ago.
However, the attention now being given to the issue of the misconceived promotion of CAM, as well as the real problems of science writing under English libel law, has at least ensured that - in its way - this has also been a Chiropractic Awareness Week."
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written by BillyJoe, May 15, 2009
A couple of sceptical responders on Ben Goldacre's blog are siding with the judge.

Here is the paragraph in question:

The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

The word "bogus" is applied to "treatments", but the phrase "[The British Chiropractic Association] happily promotes bogus treatments" does indeed sound problematic.

A better wording would have been:
"[The British Chiropractic Association] promotes treatments that have been shown to be bogus."

Or better still:
"[The British Chiropractic Association] promotes treatments for which there in no evidence of effectiveness."

BJ

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