Court of Appeal mounts robust defence of intellectual freedom of expression
1 April 2010
British Chiropractic Association v Dr Singh [2010] EWCA Civ 350
Dr Simon Singh has won the first battle in the libel action, brought by the British Chiropractic Association (BCA), in the Court of Appeal. Dr Singh was sued by the BCA in respect of an article he wrote in The Guardian in April 2008, in which he said there was not enough evidence to prove that chiropractic treatment is effective against certain childhood conditions including colic and asthma.
Mr Justice Eady ruled against Dr Singh in May 2009 in relation to two important preliminary issues. Dr Singh appealed to the Court of Appeal, and Lord Judge, Lord Neuberger and Lord Justice Sedley were asked to rule on the preliminary points relating to possible defences.
The Court has used the opportunity to mount a robust and somewhat lyrical defence of the right to freedom of expression.
The grounds of the appeal were, as stated in the judgment at [8]:
the [High Court] judge elided the issues of meaning and comment when, though related, they are distinct; he used an unwarranted “verifiable fact” test to eliminate comment as a defence; contrary to the article 10 jurisprudence, his decision placed an onus on the defendant to prove what was in truth a value judgment; in deciding the meaning of the words the judge overlooked their context; he paraphrased them damagingly; his approach marginalised or underrated the value now placed by the law on public debate on issues of public concern.
The Court referred to the Article 10 (freedom of expression) jurisprudence of the European Court of Human Rights and stated that:
The critical question, at least for present purposes, is whether its meaning includes one or more allegations of fact which are defamatory of the claimant, or whether the entirety of what it says about the claimant is comment (or, to adopt the term used by the European Court of Human Rights in its Article 10 jurisprudence, value-judgment).
The judgment went on (at [23]) to quote Miltonto Italy (and Galileo, who had been imprisoned by the Inquisition), in which he bemoaned the lack of “philisophic freedom” as compared to in England. The Court then stated “That is a pass to which we ought not to come again.” It concluded (at [34] to [36]):
“[Plaintiffs] cannot, by simply filing suit and crying ‘character assassination!’, silence those who hold divergent views, no matter how adverse those views may be to plaintiffs’ interests. Scientific controversies must be settled by the methods of science rather than by the methods of litigation. … More papers, more discussion, better data, and more satisfactory models – not larger awards of damages – mark the path towards superior understanding of the world around us.”
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