The judgment in the Simon Singh case is a landmark in the history of the libel laws. The appeal court overturned the original judgment by Mr Justice Eady so comprehensively that it ought to give food for thought to corporations, like the British Chiropractic Association, who are tempted to use the threat of libel to stifle legitimate debate. It is a welcome judgment. It is, in many ways, a brave one. But its implicit message is an unsettling one: the law of libel in England and Wales is an archaic mess, and without fundamental reform it will continue to be a source of injustice.
The basic problem with the judgment is that it relies on a peculiarly elastic interpretation of the defence of ‘fair comment’ in a libel action. The appeal court judges ruled that that Eady had erred in treating as fact Singh’s assertion that there was ‘not a jot of evidence’ to support the BCA’s claims (that chiropractic treatment was effective for a range of ailments). Instead, they agreed with Singh’s lawyers that it was a matter of opinion. Since Singh would have had an uphill struggle proving his claim as a justifiable fact, this was clearly the best legal path for his team to go down, but nevertheless it was hardly a suitable case for the defence of ‘fair comment’ either. Indeed, to describe it as a ‘comment’ rather belittles the way in which the learned and conscientious Singh went about his task. As the appeal court noted: ‘He… sets out, ailment by ailment and study by study, his reasons for considering that none of the available epidemiological evidence reliably supports the BCA’s claims.’ In other words, what Singh did (though, understandably, he would be reluctant to say so himself) was make a finding of fact on the evidence available to him and challenge the BCA to dispute it.
The BCA, rather than engage in a fair fight, pleaded damage to its ‘reputation’ and sought refuge in the libel laws. This was a tactic that the appeal court acknowledged and condemned in the strongest terms it could muster: ‘By proceeding against Dr Singh, and not the Guardian, and by rejecting the offer made by the Guardian to publish an appropriate article refuting Dr Singh’s contentions, or putting them in a proper prospective, the unhappy impression has been created that this is an endeavour by the BCA to silence one of its critics. Again, if that is where the current law of defamation takes us, we must apply it.’ (Italics mine) The last sentence is key, and one of several in the judgment in which the court appears to express dissatisfaction with the current state of the law. A similar phrase is employed two paragraphs earlier (italics mine again): ‘Moreover, as the law presently stands, it [the BCA] was entitled, for its own reasons, to reject the opportunity fairly offered to it by the Guardian to take issue with and refute the criticisms expressed by Dr Singh and to demonstrate the fallacy of his opinions.’
But the most startling passage comes in paragraph 22: ‘It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim.’ This is followed by the already famous paragraph 23, with its unjudicial (and perhaps injudicious) references to Orwell and Milton and its stark conclusion: ‘That is a pass to which we ought not to come again.’
The significance of paragraph 22 is that it pinpoints exactly the basic flaw in the law of libel in England and Wales (and, incidentally, Scotland too, though the Singh judgment has no bearing on Scots libel law). The current law of libel is incapable of distinguishing between a skilled and conscientious journalist who makes assertions based on evidence for the purpose of stimulating informed public debate, and a reckless and malicious one hell-bent on ruining his enemies. Both are pursued for their perceived effect on that most capricious and malleable of personal qualities, ‘reputation’, rather than their actual effect on public discourse. The legal twists the appeal court had to employ to overturn Eady’s judgment are, indeed, a pass we should not come to again: while Eady was a robust interpreter of a rotten law, the appeal court has gone in for something more akin to judicial activism, reflected in its literary aspirations, a call to arms to Parliament to reform the law in line with Judge Easterbrook’s maxim in the US courts that ‘Scientific controversies must be settled by the methods of science rather than by the methods of litigation’. It is an admirable sentiment, but sadly, as The Heresiarch has already pointed out in his excellent analysis, it is not presently recognised in English law.
Judicial activism, however, is a dangerous business. Bending the law should not be a substitute for reforming it. The travesty of justice in the Singh case is that the courts have had to resort to such a smoke-and-mirrors approach to uphold the principle of free speech.
It should not be beyond a functioning legal system to create a law of defamation that distinguishes between honest inquiry and reckless rumour-mongering. The current law gives too much protection to tenacious and resourceful liars such as Jeffrey Archer by placing the burden of proof, uniquely in the legal system, on the defendant. But the flaws run deeper than that. The statutory defences of justification and fair comment have been stretched beyond their elastic limit: it is no longer possible to define either of them in a way that ensures justice is served, or even to distinguish meaningfully between them. The idea that any corporation can smother public scrutiny simply by the threat of legal action is intolerable in a literate society. As long as the ‘reputation’ of an individual (or, even more contentiously) a corporation legally takes precedence over the process of honest inquiry, the libel laws will remain a shackle on free speech.
Now that the case law has reached such an impasse, there is the risk of a second travesty of justice in the Singh case if the next Parliament fails to take up the appeal court’s lead and pass a new Libel Act. Nothing less will do. Libel reform should ditch the emphasis on reputation and start from the principle that a democratic society is a place where issues of political, scientific, intellectual and, yes, religious controversy should be debated freely in public, curtailed by the obvious caveats of offence, deceit and malice. Here is a suggestion: there is a word widely used in English law which could be put to good use here. It is the word ‘reasonable’. A law which upheld the right of journalists, scientists and activists to publish ‘reasonable’ (i.e. reasoned and informed) critiques, and required litigants to demonstrate that these principles had been violated rather than allow them to simply cry ‘foul’ and reach for the writ, would not be perfect, but it would be a huge improvement on the present state of affairs.