Friday, 12 June 2009

To Happily Promote Bogus Rulings

I want to briefly look at the Eady ruling in the BCA-Singh defamation case.
4. The words complained of were taken from the third paragraph of the article.

"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 organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

5. That is the only reference to the BCA in the article...
It might well be but  the omission of the fourth paragraph from the Guardian article (from Gimpy's blog) is crucial here.
I can confidently label these treatments as bogus because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.
Singh does not reference the BCA in this paragraph because he is saying how he knows these treatments are bogus and informing Guardian  readers as to why he is justified in making this claim - that the treatments are bogus - and where they can go to find the supporting evidence (he adds some evidence in the rest of his article too and none of it discusses the dishonesty of the BCA, but then,  charitably, he never claimed they were dishonest so why would he discuss that?) Nowhere is he using this to say that the BCA knows they are bogus nor that he knows they know these is bogus - indeed this is a very good reason why the BCA was not mentioned here. So the fact that they were not mentioned here is surely as important as to whether they were mentioned and so Eady's argument - no mention of the BCA -  which was used to ignore this paragraph, especially at the hearing stage, is highly dubious. This demonstrates a classic example of the danger of selective quotation and I see no justification as to why Eady chose the BCA line over Singh's here - that is to exclude this paragraph. Why would Eady stack the deck in favour of the BCA to support an uncharitable interpretation of the third paragraph? Surely this is not his job? The hearing was to see if there grounds for litigation and what these grounds should be. Such issues should have been discussed and disputed within the litgation not dismissed prior to it. 
5. That is the only reference to the BCA in the article. The meanings pleaded on the claimant's behalf are to be found at para.6 of the particulars of claim to this effect: that (a) the BCA claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, although it knows that there is absolutely no evidence to support its claims; and (b) by making those claims knowingly promotes bogus treatments.
The issue is both (a) and (b). The question is did Singh assert (a)"...although it knows that there is absolutely no evidence to support its claims" and  (b)" by making those claims knowingly promotes bogus treatments". There are two questions here :
A) If the knows/knowingly is false and Singh claim this was true, then this is defamation.
B) Now if it were true and cannot be shown  false by the BCA, then this would not be defamation - that is in any under decent defamation laws, which we do not have in this country, here truth is not a defense or rather the reverse burden of proof makes it very difficult to show, which amounts to the same thing. There are no balance of probabilities in the English libel law, as I understand it.

I will only pursue (A) here.
11. As so often in libel cases, it is necessary to focus on what was actually published rather than on what might have been published. 
So why did Eady exclude paragraph 4 then? And. for that matter, the beginning of paragraph 3?
You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas. The fundamentalists argue that they can cure anything. And even the more moderate chiropractors have ideas above their station.
Yes this leads to Singh naming the BCA as an illustration of the problems that pervade even the moderates. Still he does make specific claims about them, of that there is no dispute. The dispute is in what he is claiming, even if he presents the BCA as an illustration of the problems even among moderates. So the ommision of this part of paragraph 3 is not an issue in the way that the ommision of paragraph is.
12. What the article conveys is that the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims. That in itself would be an irresponsible way to behave and it is an allegation that is plainly defamatory of anyone identifiable as the culprit...
Many organisations, groups and individuals do behave in an irresponsible manner, at least their critics think so. One way is to make bogus claims  and it is the job of critics to point these out, for the benefit of all. Those being criticised can respond in kind and dispute whether they are being irresponsible or not. Free speech with the  freedom to criticise and the freedom  to respond to criticism is crucial to best to determine who is being irresponsible or not.  If Singh made this allegation, without supporting evidence, that would have been irresponsible of him, but he did not. However to presume that a critic pointing out someone is being irresponsible alone is defamatory is deeply problematical. This is a sure way  to prevent anyone finding out if anyone is in fact being irresponsible, since if the evidence-backed accusation alone  is enough to count as defamatory, then we are living in a world where many will remain free to be irresponsible and we are powerless to draw attention and discuss this. Does Eady want to live in such a world?

Now this might be Eady's correct reading of English Libel Law or his own idiosyncratic view. If the former, this is a very good reason to reform the Law, as it should not he the job of a Libel Law to cover-up irresponsible behaviour. If the latter then Eady is being irresponsible in so ruling.
...It is said that despite its outward appearance of respectability, it is happy to promote bogus treatments. 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.
This is simply not true. There are numerous professionals and interested layman with  huge amount of discussions, papers, talks, conference,  articles and books on this topic, especially in the world of skepticism and there are two themes. One is the invalidity of the claims made - that they  are bogus - and the second is why do people believe claims for which there is "not a jot of evidence"? Noting I  am more interested in the latter and might reflect my own bias here, it is still quite false that the promotion of bogus treatments itself means that these are dishonestly presented.  An additional argument needs to be made to come to that conclusion and Singh neither made such an argument nor asserted this (which is why he had no need to provide an argument). Indeed, Singh makes it quite clear what he means and no reader of the article would be under the illusion that Singh was arguing for what Eady means. 

Of course an uncharitable interpretation such as Eady (and the BCA) makes is possible, made easier by ignoring Singh's own explanation of bogus, but that is likely  for just about any critical newspaper article. The reasoning that Eady makes, whilst it was specifically over "bogus" here, could probably made for other arguments in any other such critical newpaper article - which all revolve around showing that someone's premises are unsound,  inferences are invalid or  inductions are weak and that they are promoting something in spite of the these problems, the critcism being that they are not justified in doing so. So is Eady setting a dangerous precedent here, far beyond his idiosyncratic interpretation of "bogus"? Remember this ruling becomes part of English Common Law, he is making law with this ruling.

13. 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.
Is it possible that Eady is selecting his apparently idiosyncratic intepretation of bogus from its conjunction with "happily"

How can this this be the plainest allegation of dishonesty? If that were the case it would not be possible to make a plainer statement of dishonesty, without contradiction. But Singh did not say "This organization is the respectable face of the chiropractic profession and yet it knowingly promotes bogus treatments." This is surely far plainer and if Singh had said that there would be no doubt nor any discussion as I have indicated over a charitable interpretation as to what he was claiming. However he did not claim this or any equivalent. So Eady's assertion that this was the plainest allegation of dishonesty is false.

Now whilst I am not a lawyer, surely when one a judge is making a ruling such as this, he is required to abide to a decent standard of rational argument? However then he would also have to show, which he has not, that
that "happily" is a  pretty much a synonym for knowingly within the contingencies of this context. However he makes no argument, he just asserts an idiosyncratic interpretation again. That is, I fail to see an argument for Eady to conclude this what "happily" means in this context. It could just as easily mean that they are aware that others consider these treatments bogus - such as Singh - but that  they disagree that they are bogus and so happily promote these, in spite of the objections of others. Their eyes are wide open to the objections, that is they are not ignorant of these objections, however they can happily promote these treatments because they do not accept that they are bogus.

To the degree that any of these points are unclear then they need to be resolved within the litigation not prior to it in a hearing. I am not saying one must choose Singh's interpretation, as that is an easy avoidance of any charge of defamation, but at the same time, it should not be the job of the judge to force Singh to defend what  no reasonable person could have remotely charitably read in the first place, yet this is what Eady has decided. Signh would have to prove knowing intent or some form of fraud and unless there is actually evidence his lawyers are not even allowed to amount a defense on his behalf! There was plenty of evidence provided in the article and none of it was for supporting such a charge of the BCA knowingly seeking to deceive. Of course this does not mean that one could not have slipped in the charge with the evidence failing to support it and so misleading the audience but I find it very difficult to read that into Singh's article.

I had thought then when I looked at the detail of the ruling I would find that this was the inference that any reasonable person would make, even not being familiar with the specifics of the law. The benefit of English Common Law is to list the relevant aspects of the law that count in making a ruling. I had expected that my (and other's) initial reactions to this ruling were mistaken and be forced to reconsider my position. I was already aware that there were other issues with Singh's piece ("not a jot of evidence") so that, although the underlying thrust of the article is correct (which does not imply the BCA are not self-deluded) it still did  leave it open to litigation. Instead I find, based upon an admittedly brief but hopefully diligent analysis of the ruling, that this is not the conclusion that a reasonable person would make - of the ruling itself.  I find it deeply disturbing that Eady has formed his judgement based on idiosyncratic interpretation of "bogus" and "happily" with poor logical argumentation in support and expected far better of a  beknighted professional judge. Clearly the standard of our judiciary is not what I presumed it to be.

I could say that Eady has happily promoted a bogus ruling. He is fully aware that others, such as Singh's lawyers disagree with his ruling and could label it bogus (well I do based on logical if not legal grounds), yet he still happily makes it, convinced that he is correct and they (and me) are wrong. What is the difference between his ruling here and the BCA happily  promoting bogus remedies? None that I can see.