Served chilled

It has been a year full of drama and controversy for libel twitchers. Following a concerted campaign by the media for change, and then the Jackson report on costs in civil litigation, justice secretary Jack Straw proposed a number of important reforms in relation to CFA success fees, the abolition of recovery of ATE insurance premiums and measures to reform jurisdiction shopping. For the moment, however, with the dissolution of Parliament, the changes will not come into force. The Draft Conditional Fee Agreements (Amendments) Order 2010 was defeated last week and it has been confirmed that the proposed order will not now be given parliamentary time.

But it is not just the government that is reacting to the protests from the media about our libel laws. The courts are as well, if the Court of Appeal's judgment in British Chiropractic Association v Dr Singh [2010] EWCA Civ 350 last week is anything to go by. There was a delicious irony in the judgment being released on April Fools Day which will not be lost by Mr Justice Eady, our senior defamation judge. On the face of it, the decision appears to trample over the traditional interpretation of fair comment and it certainly trampled over him.

The principles of fair comment are long established (see box, right). The Singh case, subject to it going to the Supreme Court, represents a major shift in attitude and approach by the courts. It appears to represent a judicial nod to the call for the removal of the alleged 'chilling' effect of our libel laws.

The parties and the subject of the disputeThe British Chiropractic Association (BCA) is a company limited by guarantee promoting UK chiropractors, about half of whom it represents. The defendant and successful appellant, Dr Singh, is a scientist and science writer who wrote an article in The Guardian on 19 April 2008 in the paper's 'Comment and Debate' page, which included the paragraph:'The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.'

The BCA sued for libel, not the newspaper but Dr Singh, and Mr Justice Eady was asked to determine two preliminary issues. First, what the meaning of the words was and, second, whether those words constituted assertions of fact or comment. Nowhere in the paragraph was there any wording which clearly expressed an opinion such as 'I believe that' or 'I am unable to find any evidence that'¦' (though this of itself would not determine if it was an opinion). The judge had little difficulty in concluding that a reasonable reader would find the words meant that: (i) the BCA claimed members could treat the various problems listed, although it knew that there was absolutely no evidence to support its claims; and (ii) by making those claims the BCA knowingly promoted bogus treatment.

He went on to find that the assertions were factual and not expressions of opinion with the result that, at trial, the defendant Dr Singh would have to prove the meanings were factually true or lose. He gave judgment in favour of the BCA. Dr Singh appealed to the Court of Appeal. In the meantime, the media cried 'foul' over the decision saying that scientists like Dr Singh would be unfairly constrained if they could not speak their minds.

An Orwellian ministry of truth

The appeal court was made up of the Lord Chief Justice, Lord Judge, the Master of the Rolls and Lord Justice Sedley. Lord Judge delivered the judgment. He observed that it was nearly two years since publication of the offending article and it was unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Such litigation was having 'a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic remedies'.

Critics of this observation point out that to allege that treatments were bogus in a self-evidently factual way, without any attempt to couch the words in the form of opinion, was bound to attract a writ since, if true, it undermined the core beliefs of the association and was extremely damaging. Likewise, it is of course stating the obvious that the law of defamation does indeed have a chilling effect on those who publish untruths. Defamation is about protecting reputation and the publication of unjustified allegations which are damaging. Words have to be chosen with care. As for the public making any informed choice about the allegation, the information given by Dr Singh was inadequate to do that anyway.

The Court of Appeal allowed the appeal. The Lord Chief Justice asserted that to compel an author to justify his arguments in court was to invite the court to become an Orwellian ministry of truth. The court concluded that the test was, in this instance, whether or not the meaning included one or more allegations of fact, defamatory of the claimant, or whether the entirety of what was said about the claimant was comment, or, referring to article 10 jurisprudence, a value judgement. Mr Justice Eady was taken to task for his interpretation of the test 'notwithstanding his very great experience' in treating the assertions made by Dr Singh as verifiable facts since fact and comment are not readily divisible. 'To anyone (and not only a scientist) concerned with the establishment of dependable generalisations about cause and effect (such) primary information is as worthless as evidence of the secondary fact as its converse would be.'

In a judgment of which Wittgenstein would be proud, the Lord Chief Justice concluded that to say there was not 'not a jot of evidence' to support the BCA claims was a value judgement. Accordingly, to then say that the BCA was 'happily' promoting bogus treatments lost its sting. The natural meaning of the passage was not that the BCA was promoting what it knew to be bogus treatments, but that it was promoting what Dr Singh maintained were bogus treatments without regard to the want of reliable evidence of their efficacy '“ a meaning which takes one back to the assertion that there was not a jot of evidence for the BCA's claims.

The court was anxious to make it clear that their decision was not an attempt to collapse or erode the general distinction between fact and comment, but to relate the distinction to the subject matter and context of the particular article in dispute to which it related. Another way of saying that, as with so many other issues in defamation, each case depends on its particular facts.

However, the Lord Chief Justice went on to adopt a judge's observation in an American libel action that 'scientific controversies must be settled by the methods of science rather than by methods of litigation'. He ended by expressing concern about misleading terminology in relation to fair comment and the imprecision with regard to its interpretation. Fair comment may have come to 'decay with'¦ imprecision' and 'honest opinion' better reflected the realities '“ which is now the Australasian and Irish approach to the defence of fair comment.

Fair comment in reviews

The Singh decision does not entirely sound the death knell for claimants opposing fair comment defences. It needs to be compared with the decision last year of Sarah Thornton v Telegraph Media Group Limited [2009] EWHC 2863.

The Daily Telegraph has been refused permission to appeal against a decision of Sir Charles Gray when he struck out the defence of fair comment in a libel over a book review written by the celebrated journalist, Lynn Barber. Thornton applied to strike out the defence over a review of her book Seven Days in the Art World, which she said dishonestly claimed that she had carried out an hour-long interview with Lynn Barber as part of her research for the book, when the true position was she had not interviewed Barber and had in fact been refused an interview. It also alleged that she gave copy approval to interviewees and that she lacked integrity and credibility as a researcher and writer as a result of her conduct.

Gray said that a reviewer could always freely comment on the literary or artistic merits or demerits of a book, leaving the readers of the review to decide whether or not to buy it. In this instance, there was no way that a reader could judge whether a claim about Thornton's methodology was a fair one. The review made assertions about matters as to the way Thornton dealt with interview material and this was different to reviewing the quality of the writing. For a defence of fair comment to stand, it would be necessary for Barber to indicate, at least in general terms, how Thornton claimed to deal with interview material and why Barber was sceptical about that claim and would have been free to comment on the validity of Thornton's practice. Here, there was no possibility of the newspaper proving the truth about Thornton's methodology and there was therefore no possibility of section 6 of the Defamation Act 1952 enabling a defence of fair comment and it was struck out accordingly.

Cheng v Paul [2001] EMLR 777 widened the fair comment defence proved by allowing it to succeed if the comment made was one an honest person could have made on the facts, irrespective of motive; and now, as with so many domestic decisions, the influence of the European Convention of Human Rights on our judges is increasingly significant. Perhaps the Lord Chief Justice had been reading Duncan and Neill on Defamation (3rd edition), where on pages 150-152 the influence of article 10 is laid bare. Mostly quoting libel cases involving politicians (such as Feldek v Slovakia '“ accusing a minister of a fascist past; Dichand v Austria '“ accusing a politician of passing a law bringing 'big advantages' to his clients) the authors observe in paragraph 13.47(2) that the truth of value judgements is not susceptible of proof but that the existence of facts can of course be demonstrated. A domestic court requiring a defendant to prove the truth of the value judgement would infringe his article 10 rights accordingly. That said, it is also noted that even a value judgement may be excessive and disproportionate.

What are our judges to do? What will the British Chiropractic Association and others accused of happily promoting bogus treatments do? Is freedom of expression as enshrined in article 10 destroying our libel laws, and is that a cause for celebration? Is an Englishman's castle becoming his chateau given the dependence on the European Convention? There are clear dangers in interpreting assertions of fact as value judgements. In Singh, the words complained of could not have been plainer. The damage caused by libel, scientific or otherwise, can be enormous. The result in Singh will be celebrated, but the consequences of this liberalisation of the defence of fair comment could have serious repercussions. Far from clarifying the law of fair comment, the Court of Appeal has muddied the waters even more.