A pain in the back

On one indistinct Saturday morning in April 2008, Guardian readers lazily leafed through their newspapers like any other weekend. As they chewed over their toast and swilled their coffee they would have perused news of the EU scrapping its biofuels targets, Gordon Brown’s trip to the US and a Bafta accolade for Bruce Forsyth.

Resting at the top of page 26 was a half page comment piece entitled “Beware the Spinal Trap” by the scientist and writer Simon Singh criticising the work of the British Chiropractic Association (BCA). No reader on that sluggish weekend morning could have predicted that what was printed at the top of page 26 would lead to a two year libel legal battle between Singh and the BCA, costing the author around £300,000.

Singh introduced his readers to modern chiropractics, writing “You might think that modern chiropractors restrict themselves to treating back problems, but in fact they still possess some quite wacky ideas.” He went on to list some of the problems the BCA claimed it could treat, referenced recent scientific criticism and documented the possible adverse effects of treatment. Bringing the evidence together Singh judged that “if spinal manipulation were a drug with such serious adverse effects and so little demonstrable benefit, then it would almost certainly have been taken off the market” and that the BCA “happily promotes bogus treatments”.

The scientist and writer is happy to admit, when interviewed, that he never predicted the furore the comment piece would produce and the legal storm it would create. “At the start, I had no idea it would be so expensive, time-consuming and painful, and I did not realise the broader issues that would arise”. However, someone high up in the BCA was reading his article and had decided an “expensive, time-consuming and painful” experience was exactly what Singh was going to get.

In many ways Simon Singh was the perfect candidate to take on the BCA. After studying Physics at Imperial College and completing a doctorate at Cambridge, Singh had worked at CERN and become an award-winning science writer, journalist and author. On the way he had earned a host of honorary degrees and the respect of nearly all his peers. Singh knew what he was talking about and he knew the BCA didn’t.

His education and professional training may have made him perfectly poised to take on the BCA, but that didn’t mean that the legal minefield of the British libel system was going to be any less of a nightmare.

British libel law is an unusual beast. In legal terms Singh’s commentary upon the BCA highlighted the burden of proof of unjustified defamation. In simple terms that means who has the onus of responsibility for proving what has been claimed in a libel case. In most countries, if someone believes their reputation has been damaged without justification they have to prove the allegations made are false. However, in Britain the onus is upon the author to prove what they have stated is legally true.

This meant the whole case was going to be a lot more complex for Singh when the burden was on himself to prove, under libel law, every piece of his commentary in court. For the author it was simple – “I fought the case purely to defend my right to express my opinion about the lack of evidence surrounding many chiropractic claims.” However, the presiding judge in the preliminary hearing would judge otherwise.

In May 2009 Justice Eady ruled that “Beware the Spinal Trap” was not, as Singh and his lawyers argued, a comment article. Instead the court judged the assertion that the BCA “happily promoted bogus treatments” to be a factual statement that accused the chiropractic body of being actively and consciously dishonest.

Singh is refreshingly honest about his thoughts at the start of the trail admitting “Initially, I assumed that the BCA would back down and it would not actually issue the libel action.” He continues, “Then I assumed the BCA would drop the case and it would be over by Christmas. Then I assumed that the preliminary hearing would go in my favour and the BCA would drop the case, as so on. Over and over again, I was proved wrong.”

While the legal process was proving a lengthy dilemma for Singh, outside the courtroom a public campaign to highlight the problems of libel law was building up. The pressure group “Sense About Science” had picked up Singh’s legal battle and had started an online petition about getting libel law out of scientific disputes, garnering 20,000 signatures. Additionally, bloggers, writers and celebrities were attempting to highlight the problems Singh faced in his legal battle.

“Had bloggers, lawyers, scientists, doctors, rationalists, sceptics, tweeters and many others not come to my support, then I would probably have dropped the case after the preliminary hearing that went so disastrously wrong for me. It was the massive support that told me that I had to try and appeal that ruling.”

What, in the not so distant past, would have been a dry and little heard of legal battle between one science writer and those people who click your backs around a bit had suddenly become a petri dish highlighting the problems of English libel law and the curtailing of free speech. “Other scientists, doctors, journalists, NGOs and free speech groups began to point out that my case was not the only example of English libel shutting down reasonable debate and criticism – that is when I realised that something bigger was on the horizon. Winning the case is one thing, but winning the battle for libel reform is a much bigger issue.”

The trail rumbled on and in October 2009 Singh and his legal team, including a barrister that had agreed to defend him on a no-win-no-fee basis, were granted the ability to appeal. Five months later the author found himself appearing at a pre-trial hearing before three senior judges and by April 2010 the judges had returned a judgement in favour of Singh’s appeal ruling that Justice Eady has “erred in his approach” in the pre-trial hearing and that “Beware the Spinal Trap” was defendable as legally permissible fair comment.

After two years of legal back-and-forth, thousands of pounds in legal fees, an unprecedented publicity campaign and the birth of his first child, Singh could walk out to the newspaper journalists, libel reform supporters and TV cameras and claim victory. “Beware the Spinal Trap” had become more than just an informed critique for Singh. It had become possibly the most unknowingly precedent warning in the history of journalism.

“I think the Court of Appeal made a very wise judgement in case (but I guess I would say that, wouldn’t I). In particular, the three judges showed an understanding of how science operates. This was a fairly important ruling, but it does not go far enough, which is why we still need a draft defamation bill. More generally, the problems with libel are not restricted to scientists and doctors.”

What could well have been a brutally effective suppression of unwanted criticism had, through an enlightened legal defence and a well coordinated campaign, become an unwanted source of negative publicity for the BCA. Following Singh’s trial success the General Chiropractic Council received fifteen times more complaints about its members (including correspondence about the BCA’s own officers) and had to hire six new members of staff to deal with the problem. Singh’s judgement about the chiropractic industry is clear – “My greatest criticism is that the GCC has failed in its duty to protect the public from chiropractic claims that lack evidence.”

“I think the BCA have some very odd ideas and some very off ways of dealing with critics. Odd is a very polite word for how I feel. I have met chiropractors who seem to know their limits and seem to act very responsibly, and they have even expressed that they are embarrassed by many of their colleagues.” The science writer is clear about how the chiropractics need to evolve. “The problem is that these concerns are not raised in public or to the regulators. A profession can only improve and weed out the quacks by open and honest debate and criticism, rather than by brushing everything under the carpet.”

The need for an open and honest debate about the chiropractic industry was only emphasised through Singh’s legal case when some chiropractors, sensing the tide of public opinion turning against them, resorted to subterfuge.

At the very start of the legal battle the BCA had decided not to take up The Guardian’s offer of responding to Singh’s criticism in print, choosing instead to resort to legal threats. In an email of June 2009 the McTimoney Chiropractic Association (MCA) – another industry group – strongly advised its members to take down their websites, remove all MCA leaflets and to be wary of any enquiries from new customers out of fear of prosecution over unfounded claims made about treatments. The email ended with the MCA’s Chair stating “we strongly suggest you do NOT discuss this with others, especially patients…it would not be ethical to burden patients with this.”

As if only to prove the worth of Singh’s efforts to shine a light on the suspect claims of the chiropractic industry, after losing in the courtroom the BCA released a one and a half page statement claiming to demonstrate the evidence for their claims of being able to treat childhood illnesses. As Martin Robbins of the Guardian’s “The Lay Scientist” blog reported, the statement was quickly torn apart by science writers and the British Medical Journal who noted that of the 29 citations over a third had nothing to do with chiropractic treatments, the rest were a small collection of poor quality trials and one was nearly totally misrepresented.

Practising what he preaches Singh has been at the forefront of a campaign to not let the legal establishment simply shy away from the considerable problems with English libel.

Singh is clear and concise in his criticism of English libel laws. Although, he admits that the government’s October 2011 report on the issue “was very good in many ways”, he argues that political leaders need to make greater changes.

“First, instead of merely restricting the right of companies to sue for libel, I would prevent them completely. Libel law was not invented to protect the profits of corporations, but rather it was invented to protect the reputations of people. In any case, companies have other ways of seeking redress. Second, we need a proper and robust public interest defence, which encourages journalists and so on to tell us when something is wrong. Such a public interest defence would differentiate between journalists who deal in tittle-tattle and those who raise matters of genuine public concern.”

At the end of this lengthy legal process Singh has become a campaigner, a father and a man with a much lighter wallet. “A very rough estimate of costs would be £300,000 for me…Typically, winning defendant’s get back 70 percent of their costs from the losing side. Nevertheless, on top of this I also lost over a year of work (spread across two years) and the associated income, and there is also the severe stress of having to fight the case.”

It is therefore admirable to hear Singh’s optimism over the whole affair. When questioned about whether he ever regretted writing “Beware the Spinal Trap” Singh happily retorts “absolutely not” and “BCA v Singh was certainly worth the fight”. However, he is happy to admit understandable moments of self doubt – “there were times when I questioned why I had written the piece and why I was defending it. Fortunately, the massive support that I received reassured me that I was not crazy, but rather it was English libel that was crazy.”

Looking back over the three and a half years since an 800 word comment piece air dropped him into a legal minefield Singh appears remarkably good humoured and resolutely more confident in his convictions. “I don’t think the BCA imagined that I would stand by my article, or that it would lose the case or that public opinion would turn against them. Next time, I suggest they ask for Psychic Sally’s advice before they sue a journalist. I understand that Psychic Sally has some ability to foretell the future. When I began to question her abilities, her lawyer began sending me some rather nasty emails. Fortunately, Sally could foresee that this was not a wise path to follow.”