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This is spinal crack

The awesomely-named Lord Justice Laws (“I am the Laws!”) has given Simon Singh leave to appeal in the libel case brought by the British Chiropractors’ Association. The complaint originally arose because, in an article for the Guardian, Singh wrote that the BCA

happily promotes bogus treatments

In the High Court ruling of May this year, the less-awesomely-named Mr Justice Eady had written that:

Everyone knows what bogus treatments are. They are not merely treatments which have proved less effective than they were at first thought to be, or which have been shown by the subsequent acquisition of more detailed scientific knowledge to be ineffective. Bogus treatments equate to quack remedies; that is to say they are dishonestly presented to a trusting and, in some respects perhaps, vulnerable public as having proven efficacy in the treatment of certain conditions or illnesses, when it is known that there is nothing to support such claims.

For this Eady was roundly pilloried, and with cause: because a modern (and possibly now the commonest) sense of bogus, since at least Bill & Ted’s Excellent Adventure, is merely “bad” or “wrong” or “dysfunctional”, with no necessary implication of dishonesty.

It was widely reported that this judgment was all about a bogus interpretation of the word “bogus”. But what Mr Justice Eady went on to say about another word in Singh’s sentence was just as if not more germane to the question of libel:

It is alleged that the claimant promotes the bogus treatments “happily”. What that means is not that they do it naively or innocently believing in their efficacy, but rather that they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective. That is in my judgment the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct.

This is just right, isn’t it? If I happily disseminate a falsehood, I am lying, rather than just mistaken.

I fear, then, that this was never an ideal case for the “free speech” campaigners in blogs and newspapers who took it up. Let me be clear: chiropracty is a “therapy”, invented by a con-man, which can kill you. But Singh’s sentence was, at best, sloppily phrased. A reasonable reader could indeed infer from the claim that the BCA “happily promotes bogus treatments” the defamatory sense that it deliberately promotes treatments it knows to be ineffective; when of course the truth is that they are so stupid they believe in them. If Singh had written, instead, that the treatments promoted by the BCA don’t work, it would have had less of the music of dramatic outrage, but the writer’s point would have been made without offering any purchase to litigious neck-twisters.

Even so, the BCA’s decision to sue for libel rather than argue their case about the merits of chiropracty in the public arena might be taken to imply that they don’t, after all, have all that much confidence in the provable efficacy of their demented theories? Some commentators have argued that the action, if successful, would have a chilling effect on science writing, or that it has already. I am not so sure how apocalyptic that threat really was, given that Singh’s own unfortunate position could have been avoided with an ordinary standard of care taken in the writing, or if the offending phrase had been spotted and amended — as it ought to have been — later in the newspaper’s production process. But, you know, in the larger sense, go Simon! (And see Ben Goldacre’s eminently reasonable view of the whole thing.)

What have you happily done recently, readers?

  1. 1  Bruce  October 15, 2009, 8:23 am 

    Yes. I don’t know anything about this topic (BCA, etc), but as an averagely intelligent person with an exposure to the films of Keanu Reeves, I find that, for me, “happily promotes bogus treatments” connotes “knowingly peddles quackery”.

    To digress a little – I tend to avoid debates between rigorous scientists and pseudo-scientists (or between rigorous scientific commentators and pseudo-scientific commentators) because I often can’t tell the difference between the two in the heat of the argument. And I wonder (without knowing anything about the subject) if Singh’s semantic ineptitude here stretches to his evaluation of the evidence for or against chiro… whatever (probably not, but he doesn’t do himself any favours).

  2. 2  Tony Woolf  October 15, 2009, 9:21 am 

    To me, “bogus” is more important than “happily”. “Happily promotes untested treatments” would imply, not concerned to examine the efficacy of the treatments that they promote. But whatever happens in films, “bogus” is generally a word used only by those intending to offend. “Fake” is a near synonym, and has a much stronger meaning than untested or unproven.

  3. 3  wh00ps  October 15, 2009, 9:29 am 

    Sorry to go a little off-topic, but does anyone know the reason “bogus” was decoupled from “asylum seekers?”

  4. 4  organic cheeseboard  October 15, 2009, 9:57 am 

    Thank you – this has summed up my problems with the Singh case very succinctly (I never quite manage to articulate why I think this is not the iron-clad example of teh evil libel laws that others believe it is).

    I think Singh’s piece was very sloppily-worded – tehgraun’s editors could have pulled him up on it, but the whole phrase ‘happily promte bogus treatments’ seems to indiate what Bruce above states.

    Many of Singh’s supporters (and I’m no fan of chiropracty, before anyone asks) seem to think that Eady’s interpretation is incredibly misguided, but I just can’t agree with that.

    The problem is, I think, that a lot of the people suppotying Singh do genuinely think that chiropractors *knowingly* peddle snake-oil. Which is fair enough, but it is also very much open to question and certain open to accusations of libel.

    Justice Eady is said to have been ‘smacked down’ on this one but I’m not so sure. And it doesn’t help that the case which ‘teh evil libel laws’ are being tied to is so obviously a poorly-phrased piece of writing that is very much open to interpretation – but that sloppy, unthinking style characterises an awful lot of the output of the people campaigning for the libel laws to be changed.

  5. 5  Dave Weeden  October 15, 2009, 10:27 am 

    As OC says above, very well put, Steven. The only thing I disagree with OC on is this bit: “tehgraun’s editors could have pulled him up on it”. But they never seem to do. Sometimes it looks like the Guardian doesn’t have subs any more; their software probably has something like Word’s spelling and grammar checks, and they just let writers get on with it.

    I’m pro Singh and I think he’s basically right here, but he’s a professional writer and he expressed himself poorly when he knew that what he was writing would offend and provoke chiropractors.

    @Bruce I think you’re right. ‘Rigourous science’ does not inhere in scientists, it’s a culture, roughly built on academic peer review. But even peer review produces bogus results. It’s not as black and white as sometimes presented, even if ‘rigourous science’ is the better bet.

    @wh00ps If this is so (and I don’t read the Mail, which I think used the phrase), it’s probably because of the inherent ambiguity. They could be seekers of bogus asylum which, I fear, is all that is on offer.

  6. 6  organic cheeseboard  October 15, 2009, 10:36 am 

    I dunno, I’ve written things for the guardian blogs (arts ones as opposed to cif) before and had them fairly extensively edited, though admittedly nothing I was saying was ever likely to incite a libel suit. the last one was a year or so ago, too.

  7. 7  John Fallhammer  October 15, 2009, 12:55 pm 

    Not having read the details of the case, to me happily means something more like “without regard to possible consequences” or “recklessly”, as in a small boy lighting matches and happily discarding them willy-nilly. If I happily disseminate a scurrilous rumour about Tom Cruise, neither knowing if it is true nor caring about its effect on his reputation, am I actually lying or just being callous?

  8. 8  Alex Higgins  October 15, 2009, 6:09 pm 

    The anti-Singh judgement strikes me as really unfair. It is wrong for him, apparently, to assert knowing dishonesty on the part of people promoting treatments that are ineffective, but fine for Eady to insist on the harshest interpretation of (of all words) “happily”.

    Take these propositions:

    “Company A promotes its wares happily”.

    “Company A’s wares break easily during routine use.”

    I don’t think it would necessarily follow from those that Company A must deliberately makes faulty products and is perpetrating a conscious fraud on consumers.

    As John points out above, promoting treatment “happily” does not have to mean “rubbing hands with glee at the thought of conning the gullible while dribbling at the prospect of future profit”.

    If Singh wins his appeal, he can use that last sentence in a future article as a quote. It’s on the house.

  9. 9  Steven  October 16, 2009, 6:43 am 

    But Alex, if Singh had written something really analogous to your examples — eg “The BCA happily promotes chiropractic”, and then “Chiropractic is not very effective” — then we wouldn’t be talking about a libel case at all. It’s the combination of the two in the same sentence that causes the problem.

    It is wrong for him, apparently, to assert knowing dishonesty on the part of people promoting treatments that are ineffective

    I don’t know about “wrong”, but that is exactly the kind of allegation that tends to be viewed as defamatory (absent proof of the dishonesty).

  10. 10  Cian O'Connor  October 16, 2009, 10:56 am 

    The thing about peer review is that its an external structure imposed upon scientists that enforces rigorous science. Its necessary because rigorous scientific thinking is unnatural for human beings. Absent peer review, there’s no particular reason why scientists should be assumed to be rigorous in their thinking, particularly when commenting on areas outside their area of expertise.

    Having only the vaguest idea of what chiropractor’s do (cracking the back strikes me as a really bad idea), why is it quackery? Is it proven not to work, or is it simply that the claims are unproven with chiropractors resistant to scientific evaluation?

  11. 11  Steven  October 17, 2009, 1:18 pm

  12. 12  roger migently  October 20, 2009, 11:46 am 

    I like best the definition of “happily” that the Computer Dictionary gives:

    Of software, used to emphasise that a program is unaware of some important fact about its environment, either because it has been fooled into believing a lie, or because it doesn’t care. The sense of “happy” here is not that of elation, but rather that of blissful ignorance. “The program continues to run, happily unaware that its output is going to /dev/null.”

    Singh’s “happily promotes bogus treatments” could as well be meant in this sense of ignorance as the sense the judge insisted upon that “they are quite content and, so to speak, with their eyes open to present what are known to be bogus treatments as useful and effective”.

    Singh’s sin is that he used a word which was so ambiguous. The judge’s greater sin is that he assumed his personal opinion to be a legal truth.

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