Libel Laws Stifle Scientific Debate

The editor of the British Medical Journal, Fiona Godlee, writes that “organized sceptism,” or the  “requirement that scientific claims be exposed to critical scrutiny before they are accepted” is one of the basic tenets of good science.Yet in the UK, where a firestorm is raging over libel lawsuits being used to silence scientific debate, that  “critical scrutiny” could land a skeptic in court.

Right now, the legal case garnering the most attention involves British journalist Simon Singh, author of a Guardian article that strongly questioned the benefits of chiropractic treatments for some pediatric problems. Singh, who is also co-author of the book “Trick or Treatment? Alternative Medicine on Trial” wrote;

“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 British Chiropractic Association demanded that The Guardian print a retraction of Singh’s article. The newspaper refused to retract the piece but offered the group the opportunity to publish a rebuttal. Instead, they chose to sue Singh for libel. The BCA claims that the wording of the article would lead the public to believe that the chiropractic group was being consciously dishonest.

In the two years since this suit was filed, British libel laws have increasingly come under attack by advocacy groups who charge that they are being used to suppress free speech. The British libel system is considered very attractive to claimants—defendants have to  prove that their published statements are true (guilty until proven innocent); rather than the other way around as is the case in the U.S. Defendants also have to cover their own legal fees, whether they win or lose. If the defendant does lose, he or she often has to pay the claimant’s fees as well. This week Singh told “Science Weekly”  (a podcast from The Guardian) that “There is enormous time and therefore enormous cost involved” in fighting these kinds of cases. So far his legal expenses have exceeded £100,000 and could reach £1 million if he loses.

The laws are so friendly to claimants, says Singh that the UK has become the “libel tourism” capitol of the world—with international companies using British courts to stifle dissent from foreign journalists, scientists and other critics. The twist is that since the advent of the Internet, a book or article originally published in one country will often be available online and therefore in Britain as well.

For example, at a 2007 medical conference in Oxford, Danish radiologist Henrik Thomsen spoke in front of about 30 colleagues and told them how 20 patients at his hospital had suddenly fallen ill with a rare and serious disease called NSF. All of the patients had kidney disease and as it turned out, all had been injected with a contrast agent called Omniscan, a top-selling imaging product manufactured by the American company GE Healthcare. Thomsen warned his colleagues about this possible danger with the scanning agent; ending with a slide that read "I hope none of you meets a similar medical hurricane." The talk took less than 15 minutes, but the repercussions have lasted for almost three years.

It turns out that Thomsen’s findings were also published in a scientific journal that was accessible on the Internet—and therefore in the UK. GE Healthcare could then file a libel suit against Thomsen in British courts; accusing the radiologist of defaming the company by suggesting they knew about problems with Omniscan and suppressed the information. Eventually, other clinicians reported that hundreds of patients, also with kidney disease, developed the same crippling side-effects after being injected with the contrast agent. Finally, last month, GE Healthcare dropped its libel suit against Thomsen and announced it had reached a settlement with the researcher. The company says it never meant to stifle scientific debate; but fearing further libel suits, Thomsen did not speak about his concerns about Omniscan for more than two years while the case was active. Other scientists took note and kept their own criticisms silent.

Meanwhile, NMT Inc., a Boston-based manufacturer of a heart implant device used to close congenital holes, has also taken advantage of libel tourism. In 2007 the company filed a libel claim in London against Peter Wilmshurst, a British cardiology consultant who was involved in a clinical study of the device. Although Wilmshurst criticized the device, called Starflex, at a medical conference in the US, his remarks were posted on the Internet for about three days after the conference. The case is still making its way through British courts, but if Wilmshurst loses, he could be responsible for his own legal fees plus more than £500,000 in legal expenses incurred by NMT.

The issue of scientific libel is most prevalent in the UK. But it’s clear that until the country adopts legal reforms, foreign companies will continue to sue scientists, journalists and other critics there without incurring financial risk; they have nothing to lose. Several states, including New York and Illinois, have recently enacted laws that would block enforcement of British libel decisions in the United States. Congress is also looking at legislation that would protect U.S. citizens from these lawsuits abroad.

But the chill that libel lawsuits—or at least the threat of some legal action—can have on scientific debate is felt here in the U.S. as well. In October, journalist Amy Wallace published an excellent article in Wired that detailed the fear and misinformation campaign waged by vaccine opponents who believe the shots cause autism. The article was well-researched and used as a main source Dr. Paul Offit, a pediatric infectious disease expert and Director of the Vaccine Education Center at the Children’s Hospital of Philadelphia. Offit is an outspoken critic of the anti-vaccine camp and has been vilified by them—weathering death threats and vicious attacks. Soon after the article ran, Amy Wallace, Paul Offit and Conde Nast (the publisher of Wired) were sued for libel by Barbara Loe Fisher, founder of the National Vaccine Information Center, an anti-vaccine group. Fisher’s defamation suit revolves around the following quote that Wallace attributes to Offit:

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

It’s still unclear if Fisher’s suit will be successful. Had it been brought in the UK, Fisher would have a better chance of proving libel. But in this country, with her frequent blog posts and regular radio and TV appearances, Fisher might be considered a public figure. The First Amendment protects free speech, which includes broad criticism of public figures. But beyond the legal issues, the hypocrisy of this lawsuit is mind-boggling: Offit himself is regularly attacked by Fisher and other anti-vaccine types. (According to Wallace’s piece Fisher’s group calls him “the leading ‘pro-forced-vaccination proponent’ and cast him as a man who walks in lockstep with the pharmaceutical companies and demonizes caring parents.” It’s not hard to think of these charges as “lies.”)

In the end, using libel lawsuits to muzzle journalists and researchers who question the scientific evidence behind claims is fundamentally counter-productive to progress. Witness the back-story to the Singh vs. BCA legal battle that’s been played out in the British Medical Journal. In June, Evan Harris, an MP in British parliament published an editorial in the BMJ that criticized the chiropractic group, saying:

“It is remarkable that the plaintiffs in this case are representatives of healthcare practitioners, who could, one would expect, make their case in peer reviewed scientific literature as well as through the usual letters columns of whatever newspaper they believe has treated them unfairly. Resorting to litigation against a writer, rather than the writer’s publisher, gives the impression that the British Chiropractic Association is seeking to "chill" criticism of the treatments that it promotes, or of the practitioners who make efficacy claims about such treatments.”

That editorial prompted Richard Brown, the vice president of the British Chiropractic Association  to finally lay out the evidence for his group’s claims in the BMJ. In his article, Brown provides some 19 refere
nces to support chiropractic benefits in treating colic, ear infections and asthma in children.

That evidence has not stood up to critical inquiry. Edzard Ernst, a professor of complementary medicine at the Universities of Exeter and Plymouth closely examined all the studies cited by Brown and wrote a rebuttal piece in the same BMJ issue. He concluded, “The association’s evidence is neither complete nor, in my view, ‘substantial.’” Few of the studies—virtually all of which were either published in small chiropractic journals or unpublished results presented at meetings—stood up to independent scrutiny. Meanwhile, wrote Ernst, Brown failed to cite the rigorous studies that found no benefit for the chiropractic treatments in question.

It’s no wonder the BCA chose to take the libel route in trying to silence its critics rather than fight it out in the evidence-based arena of a scientific journal. “Weak science sheltered from criticism by officious laws means bad medicine,” writes BMJ’s Fiona Godlee. In fact, because of all the attention this trial has garnered, The Guardian reports “A staggering one in four chiropractors in Britain are now under investigation for allegedly making misleading claims in advertisements.”

Sadly, it is not surprising that we are seeing a rise in libel claims being brought against scientists and science writers who question alternative medicine claims or new medical technologies. For one, there is a lot of money at stake—if the public is skeptical about the (often unsubstantiated) claims of chiropractic treatments, vitamins and nutritional supplements, and unproven autism treatments, then they will scale back the billions of dollars they spend on such remedies. The same is true in the poorly regulated world of medical devices. These industries depend on “good buzz;” in the popular press and at scientific conferences, to remain solvent.

Along with the money issue, there is a deep undercurrent of “anti-science” sentiment in our society. Leaders from the anti-vaccine camp and some alternative medicine groups portray themselves as somehow separate from the evidence-based, research-driven realm of scientific inquiry. They depend on personalities and gurus who position themselves outside the science-based world; relying on anecdote, conspiracy theories and unsupported, alternative explanations for what causes disease and disability. Until the rise in scientific libel lawsuits is checked by reform, you question them at your peril.

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