There is an interesting libel case out of England that once again shows what I believe is the fundamental flaw in the system’s treatment of defamation cases. Simon Singh is being sued by the British Chiropractic Association (BCA) for his criticism of their profession in what would be treated as non-defamatory opinion in the United States. England has a extremely broad interpretation of defamation that chills speech and allows major corporations and associations to pursue critics with threats of financial ruin.
Singh wrote a 2008 op-ed in The Guardian to coincide with Chiropractic Awareness Week that questioned claims that spinal manipulation could be useful for treating childhood conditions such as asthma and ear infections. The BCA charged that he defamed the association and chiropractors in general. While the Guardian offered a chance to respond in print and to add corrections in the newspaper, the BCA was clearly gunning for this critic and sued.
In May 2009, Sir David Eady ruled the commentary article was “fact” not “comment” and included “the plainest allegation of dishonesty” that amounts to a claim of “thoroughly disreputable conduct.”. Singh is now appealing that ruling.
In the United States, it is very difficult for associations or groups to claim libel. One of the leading cases occurred in 1952 in a New York lawsuit. In Neiman-Marcus v. Lait, 13 FRD 311 (SDNY 1952), employees of that high-end story sued the author of a book titled “U.S.A. Confidential.” The book claimed that some of the models at the story and all of the saleswomen in the Dallas store were “call girls.” It further stated that most of the salesmen in the men’s department were “faggots.” The issue came down to the size of the group. With 382 saleswomen and models, the court found that the group was too large. However, with the 25 salesmen, the court found that an action could be maintained.
We have criticized the English defamation rulings in the past as chilling speech and punishing critics, here.
Our English cousins need to seriously consider libel reform. The English system has some rules that tend to significantly favor corporate and associational interests (as shown by the English rule that forces people to pay the legal fees of parties if they lose in a lawsuit — making it much more difficult to sue corporations). This case is an example of free speech being limited not by government action but private litigation. Dr. Singh should be free to raise these points and the BCA should be free to rebut them and seek corrections from the paper for any false statements. Instead, others are likely to think twice before questioning the basis for BCA claims — which may be the ultimately purpose of this litigation.