When it comes to libel chill, it’s good to be a Canadian

Libel chill is a huge concern for skeptics and, it seems, especially for those that argue for reality-based health care. It is critically important that there be an open and public debate about the science and evidence informing personal decisions about our health, as well as decisions affecting how we direct resources in our health care system. Unfortunately, some groups seeks to quash debate, rather than engaging in a discussion of evidence. Without the freedom to make open, critical comments about science and the scientific process, we give free reign to those that promote pseudoscience or seek to subvert honest evaluations of risk and benefit.

Let’s consider two ongoing international libel cases, their impact on Canadian skepticism, and then the current Canadian environment.

Great Britain: The British Chiropractic Association vs. Simon Singh

Simon Singh is a science writer and author who wrote in the Guardian newspaper about the British Chiropractic Association (BCA), and their claim that chiropractors can treat childhood conditions like ear infections, asthma, and colic. Singh described these treatments as “bogus”. (While the original article has been removed from the Guardian‘s website, the article has been reprinted here). The BCA was offered the opportunity to respond in writing in the Guardian, and provide evidence to refute Singh’s comments. But it did not, and turned to legal means to silence criticism of its practices, and has launched a libel suit against Singh. During a preliminary hearing, the judge ruled against Singh. He has decided to appeal and is now leading a campaign to reform English libel law. Here is his most recent update:

It has been 18 months since I was sued for libel after publishing my article on chiropractic. I am continuing to fight my case and am prepared to defend my article for another 18 months or more if necessary. The ongoing libel case has been distracting, draining and frustrating, but it has always been heartening to receive so much support, particularly from people who realise that English libel laws need to be reformed in order to allow robust discussion of matters of public interest. Over twenty thousand people signed the statement to Keep Libel Laws out of Science, but now we need you to sign up again and add your name to the new statement.

The new statement is necessary because the campaign for libel reform is stepping up a gear and will be working on much broader base. Sense About Science has joined forces with Index on Censorship and English PEN and their goal is to reach 100,000 or more signatories in order to help politicians appreciate the level of public support for libel reform. We have already met several leading figures from all three main parties and they have all showed signs of interest. Now, however, we need a final push in order to persuade them to commit to libel reform.

Finally, I would like to make three points. First, I will stress again — please take the time to reinforce your support for libel reform by signing up at www.libelreform.org. Second, please spread the word by blogging, twittering, Facebooking and emailing in order to encourage friends, family and colleagues to sign up. Third, for those supporters who live overseas, please also add your name to the petition and encourage others to do the same; unfortunately and embarrassingly, English libel laws impact writers in the rest of the world, but now you can help change those laws by showing your support for libel reform. While I fight in my own libel battle, I hope that you will fight the bigger battle of libel reform.

The BCA’s action has rapidly evolved into an example of the Streisand Effect, where attempts to censor information and suppress free speech simply backfire, increasing the awareness of the original issue. (Over 5000 web pages now refer to this case.) But Singh and his supporters are using this case to press the larger issue: In order to keep science and medicine based on evidence and fact, it’s critically important for there to be the ability for open exchange and debate of information, and and critical appraisal of published evidence.  As the British Medical Journal noted in an article on the Singh case,

Weak science sheltered from criticism by officious laws means bad medicine.

English libel law is an international problem, because you can be sued for libel in English courts for statements you make in Canada  – if it appears in print in the UK. And not only are the defence costs prohibitive, the onus is on the defendant to prove they didn’t libel. Consequently, these laws have an impact all over the world. (Note the elaborate disclaimer we use at Skeptic North.) The Libel Reform Campaign is asking for signatures from people all over the world, to illustrate the absurdity of English libel laws. Consider adding your signature today.

USA: Barbara Loe Fischer vs. Dr. Paul Offit and Amy Wallace

In another case of a libel suit being filed against science advocates, Dr. Paul Offit and Amy Wallace have recently been sued by Barbara Loe Fischer of the National Vaccine Information Center (NVIC). The suit was precipitated by an article on the anti-vaccine movement authored by Wallace, and quoting Offit, that appeared in Wired magazine in 2009. The article enraged the anti-vaccination crowd: It was science-based and strongly critical of antivaccinationists, even debunking common anti-vaccine arguments. Here is a pdf of the suit, which appears to revolve around a statement made by Offit:

“Fisher, who has long been the media’s go-to interview for what some in the autism arena call ‘parents rights,’ makes him particularly nuts, as in ‘You just want to scream.’ The reason? ‘She lies,’ he says flatly.”

The word “lie” is rapidly becoming as scrutinized as Singh’s use of the word “bogus”. Dr. Steven Novella at the Neurologica blog weighs in here, and Orac at the Respectful Insolence blog comments here. As both bloggers point out, the use of the word “lie” is problematic, because many who advocate pseudoscience may honestly believe in the veracity of their statements. And both note that this case may be more about stifling criticism of antivaccinationists, than about the specific statement in question. While I have no idea how this case will progress, it reinforces the reality that skeptics and critics need to choose their words carefully, and understand the legal environment in which they make public comments.

The Canadian Environment

Compared to other jurisdictions, the environment appears much better in Canada for bloggers, skeptics, and advocates for science.

In late December, the Supreme Court of Canada released an important decision that grants a new defence against libel lawsuits. Termed the “responsible communication” defence, it will significantly enhance libel protection to those who write on matters of public interest. The ruling seems to apply broadly to journalists and bloggers:

[96] A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”

[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

And what is the defence?

A. The publication is on a matter of public interest
and:
B. The publisher was diligent in trying to verify the allegation, having regard to:
(a) the seriousness of the allegation;
(b) the public importance of the matter;
(c) the urgency of the matter;
(d) the status and reliability of the source;
(e) whether the plaintiff’s side of the story was sought and accurately reported;
(f) whether the inclusion of the defamatory statement was justifiable;
(g) whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
(h) any other relevant circumstances.

Much has been written in the media about this decision. Read the analysis from the Globe and Mail here and here, the Montreal Gazette‘s comment is here. The Toronto Star‘s initial comment was published here, and a follow-up editorial appeared last weekend with the following comments:

The “responsible communication” defence gives writers, broadcasters and bloggers greater legal protection in reporting on matters in the public interest — even if they can’t prove the truth of allegations against individuals who believe their reputation has been harmed by that reporting.

and

Journalists have rightly lauded the landmark ruling. Though it holds us to high standards, it provides greater freedom to publish important information we believe the community has a right to know, even when the absolute truth of that information cannot be verified. In essence, as was stated in the Supreme Court hearing, the defence provides journalists with “the right to be wrong.”

Osgoode Law School’s blog had the following comments [emphasis mine]:

The first prong of this two-step framework, determination of matters of public interest, is bound to undergo considerable development in later jurisprudence. Under this step, the judge must be satisfied that the publication is on a matter of public interest. There is no static or formulaic test to determine what is of public interest. The matter must be one encompassing more than “mere curiosity or prurient interest” with the public having a “genuine stake in knowing about the matter published” (at para.105).

The judge must first determine the subject matter of the publication in question. The judge should view the subject matter broadly, taking into consideration the publication as a whole (rather than focusing in on the impugned statement) (at para.109). It is not necessary that the plaintiff be a public or prominent figure, nor that the communication relate to government or political matters. Many matters “ranging from science and the arts to the environment, religion, and morality” and more broadly, the democratic interest in “wide-ranging public debate” could be considered a matter of public interest (at para.106).

Canadian journalists and bloggers acting in good faith now have a checklist to follow. It’s not immunity from acting irresponsibly, though: If the writing is not in the public interest, or the responsibility standard is not met, libel charges can proceed. I’m not a lawyer and I defer to the experts for their interpretation and guidance, but to anyone who has faced legal intimidation for writing critical appraisals of published scientific studies, or for noting the lack of scientific evidence supporting dubious health advice, this decision looks reassuring.

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  • Scott Gavura

    Scott is passionate about improving the way drugs are used. A pharmacist by background, Scott has a professional interest in improving the cost-effective use of drugs at the population level, while helping consumers make more informed decisions about their health. He blogs about pharmacy practice and questionable science at Science-Based Pharmacy and Science-Based Medicine. All views expressed by Scott are his personal views alone, and do not represent the opinions of any current or former employers, or any organizations or associations that he may be affiliated with. All information is provided for discussion purposes only, and should not be used as a replacement for consultation with a licensed and accredited health professional.