British Chiropractic Association v Singh

Whether words are fact or comment depends on their full context and subject matter. In a scientific controversy, an assertion that there is no evidence for a treatment may express a value judgment about the quality and reliability of the available material. It is not necessarily an assertion of objectively verifiable fact.

Words describing treatments as bogus and their promotion as happy may, in context, amount to criticism that the promoter has acted irresponsibly or blithely in the face of insufficient reliable evidence. They do not necessarily allege knowing dishonesty. The defence traditionally called fair comment is more accurately described as honest opinion.

The British Chiropractic Association sued Dr Singh for libel over an article published in the Guardian. The article criticised the Association’s promotion of chiropractic treatment for several childhood conditions. It said there was no evidence for the treatments and described them as bogus.

On agreed preliminary issues, Eady J held that the article alleged that the Association knowingly promoted treatments despite knowing there was no supporting evidence. He held that the words were assertions of fact: [2009] EWHC 1101 (QB).

Dr Singh appealed. The central issue was whether, read in context, the impugned statements were factual allegations requiring justification or expressions of opinion based on an evaluation of scientific evidence.

1. Appeal allowed. The judge erred by treating the assertion that there was no evidence for the Association’s claims as an objectively verifiable fact, and by conflating that issue with whether the Association’s personnel knew of the alleged absence of evidence.

2. The classification of words as fact or comment must reflect their context and subject matter. In a scientific and epidemiological dispute, the sufficiency and reliability of material said to be evidence are legitimately contestable. An assertion that there is no evidence naturally meant that there was no worthwhile or reliable evidence. It was therefore a value judgment, supported in the article by reasons, rather than a factual assertion requiring proof by justification.

3. The word bogus, in context, was emphatic and evaluative. The article explained why the writer considered the treatments unsupported. The word happily did not allege that the Association knowingly promoted treatments it knew to be worthless. Its natural meaning was that the Association blithely promoted treatments which the writer considered bogus, without regard to the absence of reliable evidence.

4. The decision did not collapse the general distinction between fact and comment. It applied that distinction to a context in which scientific evaluation, rather than a fixed and verifiable factual proposition, was at issue. The Court did not need to determine other potential defences or whether it should substitute a different meaning for that found below.

5. Observationally, the Court questioned the traditional label fair comment. It considered honest opinion a clearer description of the defence, while recognising that it could not alter its legal elements.

• Court of Appeal (Civil Division): Allowed Dr Singh’s appeal and held that the impugned words were expressions of opinion: [2010] EWCA Civ 350.

• High Court, Queen’s Bench Division: Eady J held that the words alleged knowing promotion of treatments despite an absence of evidence, and that they were factual assertions: [2009] EWHC 1101 (QB).