"Everyone claims they have reality on their side. That's why lawyers exist"The law is not there to decide on the science of whether particular medicines work. This was put astonishingly well by the UK high court, in the case of the BCA vs Simon Singh - http://www.bailii.org/ew/cases/EWCA/Civ/2010/350.html
"To see where this approach leads, one can look at the pleadings. By his defence Dr Singh sets out the undisputed fact that the BCA promotes chiropractic as a treatment for infants and young children suffering from colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, and then says:
"The comment which the Defendant contends that the article bears is that the Claimant's behaviour in so doing is reckless and irresponsible in the light of the lack of any reliable scientific evidence supporting the effectiveness of such treatments and in the light of the risks of the treatment proposed."
He then sets out, ailment by ailment and study by study, his reasons for considering that none of the available epidemiological evidence reliably supports the BCA's claims. This is met by a reply of comparable length in which the BCA, again ailment by ailment and study by study, contests his view and asserts that there is some dependable evidence for its claims. Ms Rogers has told us that, given the judge's ruling that these are verifiable facts, the trial can be expected to involve expert evidence on both sides and a judicial conclusion as to whether there is any evidence for the BCA's claims.
One has only to contemplate this prospect to conclude that something is amiss. It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. But these have been precisely cases in which the defendant has made a clear assertion of highly damaging fact, and must prove its truth or lose.
The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:
"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."
That is a pass to which we ought not to come again."