Yesterday, the British Chiropractic Association made what many believe was a serious error of judgement in a press release regarding Dr. Simon Singh's recent appeal victory. In the release they stated that:
"However, this action is actually a simple libel claim based on the fact that the BCA was maliciously attacked by Dr. Singh in the Guardian newspaper."
As legal expert Jack of Kent has pointed out, this is a defamatory remark which Singh could countersue over, and in Jack's view, "the moment he chooses to do so will surely be when this case ends."
Whoops.
And so, the virtual vultures of the interwebs are circling around BCA HQ, chanting "countersue!" and shaking their bloodied feathers in a vaguely intimidating sort of way. Which is understandable, because frankly if I were Simon Singh I'd jump at the opportunity to take advantage of the farcically dumb person at the BCA who put such a daft press release online about an ongoing legal action without running it past their lawyers first.
So the case could come to an end. But is that really what we want to see? Well, not in my opinion. Let's look at the wider picture.
Simon Singh could have settled months ago. Indeed, some might have argued it was the sensible thing to do. But he didn't. As Simon himself explained:
While there is still the slightest chance of defending my rights as a journalist then I am determined to continue with this legal battle. Indeed, I look forward to the opportunity to discuss the evidence for chiropractic in court.
More importantly, while this case is alive there is an opportunity to raise a whole series of arguably more important issues, particularly the appalling state of English libel laws.
Aside from the conviction that he is right and can win this case, Simon and Sense About Science have used this case as a platform from which to argue for wider libel reform, to protect the ability of science journalists to debate science, and to keep litigation out of scientific disputes.
Assuming that Jack of Kent's assessment is correct, assuming that Singh's team take the opportunity to countersue, and assuming that they win; this would have two side-effects.
1) In my view it risks undermining the campaign to keep libel out of scientific debates if, in the course of arguing that this dispute should be handled like a scientific debate, Simon resorts to counter-suing for libel himself. I'm sure many of you will point out that it's not quite the same thing and I agree, but you can see how it would look to the wider world.
2) While he would force the case to be dropped, Simon wouldn't "win" the case in any meaningful sense. The money and effort he has invested so far would not have the wider impact he wanted, and the original dispute would remain unresolved. In other words, we'd be back where we were in 2008, waiting for the next journalist to call something bogus and get sued.
Now, to be absolutely clear, I am not going to criticize Simon if he takes this route out. As I said above, I'd probably do the same. Simon has done more than enough for fellow science-writers, heroically sacrificing his time and money to bring attention to a critical issue in science journalism. I will support him whatever he does, and I suspect even if he takes this opportunity organizations like the BCA will look at this case and think twice about pursuing critics in the courts again. The BCA and the wider chiropractic industry have been comprehensively embarassed by this debacle.
But, for my own selfish reasons, and for the wider community, I hope that Simon fights on. Libel is an increasing threat to us ragged band of bloggers and writers. Ben Goldacre had to defend himself against Rath, Quackometer was temporarily shut down by legal threats, and as blogs like ours become increasingly popular and prominent it's a question of 'when' rather than 'if' more of us are sued.
By fighting on, Simon Singh could finally rid us of that menace. Or, he could lose spectacularly. That's why I'm glad I'm not in his shoes; and that's why I'll continue to admire his efforts whatever he decides to do.
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I agree that the tit for tat approach might not be the best idea, especially when there is a call to reform libel law. Using the law that you are trying to change sends a very mixed message at best.
On the other hand, there may be some mileage in pointing out that the BCA can now be sued and that they have committed the exact sin they are accusing him of.
Who would have thought there were so many pictures of people shooting themselves in the foot available on the interweb?
I think (admittedly, I don't know) that you have presented a false dichotomy.
It may be possible to do both. Depending on how long after one is libelled that one can still sue, it may be possible for Simon to fight on as you suggest, then when it's all over, sue the BCA for lulz.
T
I don't think it's about whether he can but instead about whether he should.
Sort of - however delaying the sue-age (sewage?) would neutralise the two side-effects MJR states above.
Why not fight fire with fire? It would at least be a stark demonstration of the absurdity inherent in the original libel action, even if it does somewhat undermine the moral position that libel laws are being misused to stifle useful debate.
Is there a point at which 'scientific' debate over an issue is no longer useful - e.g. when the spectre of MMR & autism gets exhumed for the nth time - would suing for libel be acceptable in those circumstances? After all, misinformation, even easily debunked misinformation, still ends up costing lives or livlihoods.
If he were to sue the BCA in retaliation, the BCA may then choose to drop their claim against Singh, but he could perfectly well continue with his against them.
However, if the BCA continued but lost their case, Singh would be in the enviable position of having won the first case (and thus not having to pay any costs to the BCA) and having effectively a gimme of his case, with which he could maybe hope to recoup some of his costs.
I still think he shouldn't sue them though. He's got the moral high ground right now and shouldn't cede it.
It's generally better to fight fire with water. Or a blanket. Or foam. In other words, to smother it.
Simon has 12 months to bring suit for libel, if he so wishes, which makes the yesterday's complete boner a tidy little insurance policy against another perverse ruling when his appeal on Eady's ruling on meaning goes ahead.
The sensible thing for Simon to do is hold fire until he sees whether he gets another hospital pass on the BCA's action, or is allowed to present a defensible case.
If he get's the former and Eady's ruling is not overturned, then he still has the option of filing a countersuit and bringing things to a swift conclusion without the risk of trying to fight his corner from a near indefensible position.
Red Adare would disagree with you!
Has anyone considered the possibility that the BCA's foot-in-mouth press release might be a deliberate ploy to provoke a countersuit from Singh? The release is still available on their website — wouldn't it have been better to remove it completely?
The BCA's standing has plummeted so much due to the adverse publicity that they might want to see a quick end to the whole thing. If Singh countersues, would they be able to negotiate a settlement — a settlement that included an undertaking from both sides to shut up about the case?
It's still there? I thought they'd taken it down and replaced it.
I suspect if they were trying to provoke a counter-sewage, they would not have changed the wording.
Why not fight fire with fire?
Because you'd (or rather, he would) be fighting the wrong thing.
The question is, is he fighting the BCA, or is he fighting to demonstrate the absurdity of libel laws.
By having his day in court, Simon can beat not just the BCA but the whole system. Or maybe he won't. But anyway, that's why. Either way he can beat the BCA. But that's not necessarily his only goal.