I don’t normally campaign. I’m not a joiner or a natural committee man. But the state of free speech in England pushed me into despair, and three years ago I started to do what little I could for the campaign for libel reform.
Britain was not a country where the natives could debate their grievances and foreigners could come to talk of oppression in their own lands. Our politicians and judges welcomed actions from corporations at home that were clearly designed to use the crushing power of money to intimidate critics into silence, and from Russian and Ukrainian oligarchs, Hollywood paedophiles, Islamist fanatics and Saudi petro-billionaires. A Russian newspaper contesting Putin’s mafia state or a Scandinavian newspaper investigating the Icelandic bankers’ Ponzi scheme, would be hit with a biased law and huge costs by the London courts. Even after the death of Robert Maxwell in the early 1990s revealed that the old fraud had used the libel law to suppress criticism of his criminal business enterprises, the establishment did nothing.
Conservatives condemn “liberal judges”. But with the odd exception – the current Lord Chief Justice being the most glorious – there is nothing liberal about their attitudes to free debate. Although Article 10 of the Human Rights Act protects freedom of speech, every competent lawyer will tell you that the judges have not used it to extend rights, or indeed to protect rights we once had and are now losing.
I am afraid the judges reflect wider society. The national reflex is to demand bans whenever uncomfortable, unpleasant or unfamiliar speech is heard. Add to that depressing mix, the Leveson inquiry into the peeping Toms of the tabloids, and the chances that libel reform would pass seemed slim.
But last night, despite all of the above, Parliament reformed the law. Many people can claim credit for forcing change through. Lord Lester, who more than anyone else wrote the legislation, and Index on Censorship, English Pen and Sense About Science, who ran a model campaign. But Simon Singh deserves the most praise. His determination to fight an unjust law made reform possible.
He will hate me praising him, let alone calling him a hero. He is a diffident man, whose tone is ironic, except when he is talking about science. He wasn’t a celebrity or politician, but a successful author whose books on code breaking and the cracking of Fermat’s last theorem were joys to read. After writing them, he collaborated with Professor Edzard Ernst to produce Trick or Treatment, an investigation into whether “alternative” therapies work. (None does, except as placebos, with the partial exception of St John’s Wort.)
Chiropractic therapy – the pummelling of backs by mystic masseurs – was particularly pernicious. All alternative treatments are potentially dangerous. Credulous patients, who believe their quacks, may avoid seeking trustworthy advice from a qualified doctor, and suffer the consequences. But chiropractic falls into that small class of alternative therapies that are not only useless but dangerous. In 2001, a systematic review of five studies revealed that roughly half of all chiropractic patients experienced temporary adverse effects, such as pain, numbness, stiffness, dizziness and headaches. Patients put themselves in jeopardy when they allowed therapists to execute high-velocity, low-amplitude thrust on their necks – one of the most vulnerable parts of the body, as hangmen know.
Singh and Ernst went on to document cases of chiropractors killing patients, and published in 2008. Here is an account of what happened next from my You Can’t Read This Book.]
A few months later, the British Chiropractic Association held National Chiropractic Awareness Week. Singh noted that it offered its members’ services to the anxious parents of sick children, and wrote an article for the Guardian, ‘Beware the Spinal Trap’. He began by saying that readers would be surprised to learn that the therapy was the creation of a deranged man who thought that displaced vertebrae caused virtually all diseases. The British Chiropractic Association followed suit by claiming that its members could treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying.
There was ‘not a jot of evidence’ that these treatments worked, said Singh. ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.’ He went on to explain that he could label the treatment as ‘bogus’ because Ernst had examined seventy trials exploring the benefits of chiropractic therapy in conditions unrelated to the back, and found no evidence to suggest that chiropractors could treat them.
By the standards of polemic, it was an even-tempered piece; far angrier articles have been written with less cause. Singh was warning that parents would be wasting their money if they took children to chiropractors, and could risk harming them too. He backed up his comments with reliable evidence, and concluded 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.’ This unexceptionable thought was no more than a statement of the obvious.
The chiropractors did not sue the Guardian, but went for Singh personally, hoping that the threat of financial ruin would force him to grovel. The Guardian withdrew his article from their website, thus lessening any ‘offence’ caused, and offered the chiropractors the right of reply, so they could tell their side of the story and convince readers by argument rather than by threats that Singh was in the wrong.
The chiropractors carried on suing Singh, and demanded that he pay them damages and apologise. Singh did not see why he should, considering he was reporting reputable evidence that chiropractic therapy was the invention of a faith healer, whose claims that his mystical method could cure sicknesses that had nothing to do with backache were nonsense. At a preliminary hearing to determine the ‘meaning’ of Singh’s article, the judiciary soon showed why English law was feared and despised across the free world. Determined to draw him into the law’s clutches, the judge [Mr Justice Eady] put the worst possible construction on Singh’s words.
He ruled that because Singh had said ‘there is not a jot of evidence’ that chiropractic therapists could cure colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, the courts would at enormous expense see if they could find one piece of evidence, however small, to support the chiropractors. Maybe if a child stood up in court and breathlessly announced that a chiropractor had cured her, that would be a jot. Maybe if the judge could find a smidgeon of doubt in one of the studies, Singh would have to pay for a phrase that may have been ever so slightly inaccurate.
If Singh could prove that no such doubt existed, he would still not be free of the law. The judge ruled that when Singh said of the British Chiropractic Association, ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments,’ he was accusing it of dishonesty. It seemed clear to those of us who did not have the benefit of a legal training that he was doing no such thing. In his article, Singh said that chiropractic therapists had ‘wacky ideas’, and accused the hard-line among them of being ‘fundamentalists’. In normal English usage, to describe someone as a fundamentalist who holds wacky ideas is to accuse him of folly, not of mendacity.
Not according to the judge. He ruled that when Singh wrote ‘happily promotes’, he did not mean that chiropractors ‘carelessly’ promoted bogus therapies without a thought for the available evidence, or ‘stupidly’ promoted them because they did not understand the findings of clinical trials. No. Singh was accusing therapists of deliberately and fraudulently promoting quack remedies they knew to be worthless. ‘That is in my judgement the plainest allegation of dishonesty and indeed it accuses them of thoroughly disreputable conduct,’ the judge told Singh.
Proving whether a believer in magical medicine, the ‘faked’ moon landings, the ‘truth’ about Obama’s birth certificate or any other mystical or paranoid theory is a fool or a liar is a next to impossible task. The most disturbing thing about fantasists is that they are often sincere. Yet on the ruling of the English courts, a writer who described a neo-Nazi or an Islamist as ‘happily promoting bogus conspiracy theories’ about the global reach of the Elders of Zion, for which there is ‘not a jot of evidence’, could be sued for libel in London. And unless the writer could prove that the object of the critique was a liar instead of a fool, the writer would lose.
After hearing the judge’s ruling, Singh’s friends, his lawyers and everyone else who had his best interests at heart advised him to get out of the madhouse of the law while he still could. He had already risked £100,000 of his own money. If he fought the case, it would obsess his every waking moment for a year, possibly longer, and he could lose ten times that amount if the verdict went against him. Even if he won, he would still lose, because another peculiarity of the English law is that the victor cannot recoup his full costs. It was as if the judiciary had put Singh in a devil’s version of Who Wants to be a Millionaire?
Singh’s wife, the BBC journalist Anita Anand, understood the principle at stake, and backed her husband. Whatever happened, she said, the case would not divide them. But the question remained for Singh, how far could he go before deciding that the risk to his family’s finances was too great? To cap it all, the judge had come up with a reading of Singh’s words that made a defence impossible.
No one would have blamed him for backing down. There would have been no dishonour in withdrawing from the fray. Thousands of publishers and writers in England and beyond have looked at the cost and biases of the English law and thought surrender the only option. Singh said that if he were a twenty-five-year-old with no money he would have apologised. But his bestselling books had given him financial independence. He resolved to refuse to put his name to a lie by authorising an apology. He knew what his enemies would do with it. Ernst and Singh had spent years investigating alternative medicine. No potential patient would spend more than a few days doing the same. If he apologised, chiropractic therapists would wave his retraction at potential patients, and say that Singh had admitted that their philosophy was not gibberish, and their claims to treat children were not bogus. As shamefully, an apology would also make Singh complicit in silencing other journalists, scientists and editors, who would think hard before challenging alternative therapists after seeing how the law had forced him to retract.
From Stalin in his show trials to oligarchs suing investigative journalists, censors want recantations as well as exemplary punishments. I have seen billionaires, including convicted criminals, extract admissions of guilt from British newspapers too poor or too frightened to fight, and use them to convince journalists and politicians around the world that legitimate criticisms of their actions were groundless. Singh did not wish to join such sorry company.
So he fought. The diffident man turned out to be a superb public speaker: funny; precise; and even-tempered. His lawyers overturned Eady’s judgement on appeal, and Singh gave up his life, and the chance of earning a large amount of money, for the campaign. He attended every meeting, however small. His example swayed doubters, and convinced politicians from all parties to tackle an abuse they had allowed to fester for decades. For how could you argue that it was right for the law to threaten writers discussing urgent issues of public health, even if they were in the wrong – which Singh was not.
Few did in the end, and the legal establishment had to retreat. The Singh case illustrates an important point about liberty. People imagine that freedom comes in revolutions and bills of rights. But sometimes revolutions turn authoritarian and bills of rights turn out not to be worth the paper they are written on – as article 10 of the Human Rights Act shows. More often, change comes when bloody-minded individuals refuse to accept the commonsense advice to “move on and let it be,” square their shoulders and fight back.
If you meet Simon Singh, tell him what a great guy he is. His embarrassment will be wonderful to behold.
Give something clever this Christmas – a year’s subscription to The Spectator for just £75. And we’ll give you a free bottle of champagne. Click here.