While the northern hemisphere is paralysed by the seismic shift that has caused the Icelandic volcano, Mt Eyjafjallajökull, to erupt, the case of the British Chiropractic Association (BCA) against Dr Simon Singh promises to have an equally seismic effect on the legal landscape of libel in the UK and the defence of fair comment – especially in the area of scientific debate.

The BCA sued the scientist and science writer Dr Singh over an article he wrote for the ‘comment and debate’ section of the Guardian. Published in April 2008 during ‘chiropractic awareness week’, it included the words: ‘The British Chiropractic Association claims that their members can help 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, whose aims are to promote, encourage and maintain high standards of conduct, practice, education and training within the chiropractic profession in the UK, took exception to this portrayal and sued the author for libel. It did not sue the Guardian or take up its offer to run an article by way of a right to reply. ‘As the law presently stands,’ said the Court of Appeal, ‘it was entitled, for its own reasons, to reject the opportunity fairly offered to it by the Guardian to take issue with and refute the criticisms expressed by Dr Singh and to demonstrate the fallacy of his opinion.’ Perhaps the words ‘as the law presently stands’ foreshadow yet another seismic shift heading our way.

By agreement, the trial judge Mr Justice Eady – and the action was due to be heard by judge alone – was asked to determine two issues: defamatory meaning and whether the words were comment or fact. If the latter, then to successfully defend the action, Dr Singh would have to prove that the defamatory words were true in a defence justification. But if the former, a defence of fair comment might successfully be made out, provided the other elements of the defence were established.

Fair comment will succeed where the defendant can show that his words, on a matter of public interest, are comment or opinion that could honestly be held on facts shown to be true. The name of the defence is somewhat misleading, because the comment does not need to be fair at all. Indeed, as long ago as 2000, the judgment of the Hong Kong Court of Final Appeal in Cheng v Paul, concluded that in this defence, ‘honesty of belief is the touchstone’. Provided it is an honestly held opinion, it can be biased or exaggerated but is still protected for public policy reasons, so that commentators may provide their opinion on the arts, religion, restaurants and, it seems, science and we, the public, can consider those opinions and make up our own minds.

Eady J found the words to mean, in summary, that ‘the BCA itself makes claims to the public as to the efficacy of chiropractic treatment for certain ailments even though there is not a jot of evidence to support those claims’; that ‘despite its outward appearance of respectability, it is happy to promote bogus treatments’; that ‘bogus treatments equate to quack remedies’; and that, in happily promoting them, the BCA ‘do [not] do it naively or innocently, believing in their efficacy, but rather that they are quite content… to present what are known to be bogus treatments as useful and effective’.

Heeding the reminder of Heather Rogers QC for the BCA that ‘one is not permitted to seek shelter behind a defence of fair comment when the defamatory sting is one of verifiable fact’, the judge found that ‘here the allegations are plainly verifiable’. The fact that the article had been published in the ‘comment and debate’ section of the newspaper was not determinative: ‘It is a question of substance rather than labelling,’ said Eady J.

Dr Singh appealed on the grounds that the judge, as summarised by the court of appeal, ‘elided the issues of meaning and comment when, though related, they are distinct’ and, ‘in deciding the meaning of the words the judge overlooked their context’, something that the Court of Appeal certainly did not do. Unashamedly, it stated, ‘it is now nearly two years since the publication of the offending article. It seems unlikely that anyone would dare repeat the opinions expressed by Dr Singh for fear of a writ. Accordingly this litigation has almost certainly had a chilling effect on public debate which might otherwise have assisted potential patients to make informed choices about the possible use of chiropractic’. The chill wind of defeat, it seems, was blowing the claimant’s way by this stage in the judgment.

According to the Court of Appeal, Dr Singh stated as fact that the BCA promotes chiropractic as a treatment for infants and children; but he then commented that in doing so the BCA was ‘reckless and irresponsible in light of the lack of any reliable scientific evidence supporting the effectiveness of such treatments’.

‘The material words,’ the Court of Appeal said, ‘however one represents or paraphrases their meaning, are in our judgment expressions of opinion.’

Some mental gymnastics may be required to join the Court of Appeal in its finding that ‘not a jot of evidence’ is a value judgment and not a statement of fact. But it is not a million miles away from the Irish Court of Appeal decision in Convery v Irish News in 2008, that grey and translucent looking squid, and warm, flat watery coke, are value judgments and not, as the trial judge had found, statements of fact (see [2008] Gazette, 10 April, 26). While an opinion might be mistaken, the Court of Appeal in Singh said that forcing the holder of that opinion to prove the truth of what he had asserted ‘is to invite the court to become an Orwellian ministry of truth’.

Freedom of speech, championed by the media, has been flexing its muscles of late with its old adversary, reputation. There have been cries for the demise of so-called ‘chilling’ conditional fee arrangements; demands for the wholesale reform of British libel law; and rebukes to the judiciary where allegedly responsible journalism has had to be ceded to claimants protecting their rights.

Scientific debate is the most recent winner of this latest bout and the defence which helped it succeed may well be renamed in the process. The Court of Appeal concluded: ‘Fair comment may have come to "decay with… imprecision". "Honest opinion" better reflects the realities.’

While other defences to libel actions have been regularly called upon to fight for the right to free speech, for years fair comment slumbered like Sleeping Beauty. With Cheng v Paul, she yawned and stretched a little; Convery v Irish Times perked her up a bit; and now Dr Singh has got fair comment out of bed, given her a cold shower and a cup of strong coffee, and readied her to face a new dawn.

Amber Melville-Brown, Withers