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Offline thedoc

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Are scientists set to get sued?
« on: 15/12/2009 18:26:09 »
It is the stuff of nightmares - a society so wound up in the legal system that no-one is allowed to tell you the truth, or that those with money control state censorship. However, this isn’t some John Grisham novel, this is the unfortunate state of the UK libel system today. Here, Harriet Dickinson finds out how it's impacting on the ability of scientists to state the facts...

Read the article then tell us what you think...

« Last Edit: 15/12/2009 18:26:09 by _system »


 

Offline chris

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« Reply #1 on: 15/12/2009 21:05:34 »
A system that deters rational argument threatens to jeopardise the whole scientific process. Modern science is based on peer review. So what next? Reviewers finding themselves in a libel court for critiquing a piece of work...?

This is scary and it needs to stop.

Chris
 

Offline LeeE

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« Reply #2 on: 15/12/2009 23:08:29 »
I think the problem is encapsulated in a phrase from that article:  "Scientists can no longer afford to disagree with big corporations".  The important point is that it should not be the scientists who disagree (with anyone) but that the evidence and data indicate a particular 'truth' upon which the conclusions of the scientist should be based.

If scientists stick to basing their conclusions upon the data and evidence, any disagreement is not with the scientists but with the data and evidence.  Let them try suing the data.

Anyone who spouts off about something likely to upset someone else, without good evidence for showing that what they say is truthful, is just asking for trouble, whether they be a scientist or not.

In the cases identified in that article, the scientists clearly seem to have the data and evidence to back up what they have said and should seek damages from the organisations wrongly persecuting them, either on the basis of malicious accusation or on lack of due diligence in bringing the case and incurring the costs of the defendant.  They should also ask for punitive damages too, to act as a deterrent.

The saddest thing of all though is that some people think it's ok to try to win through fraud, and the reason that it's so sad is that it's part of human nature to take the p!ss.
 

Offline chris

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« Reply #3 on: 15/12/2009 23:19:46 »
In the cases identified in that article, the scientists clearly seem to have the data and evidence to back up what they have said and should seek damages from the organisations wrongly persecuting them, either on the basis of malicious accusation or on lack of due diligence in bringing the case and incurring the costs of the defendant.  They should also ask for punitive damages too, to act as a deterrent.

But I think the point being made is that teh writers are guilty until proven innocent, which is the converse of the way the legal system actually works under other circumstances.

Also, the writers, traumatised by one heap of litigation - as Goldacre says he spent a year dealing with it, Simon Singh's into year 2 - are hardly likely to want to pursue even more expensive and risky litigation to rectify the damage that's already done.

Simon Singh's article - included in Harriet's article - is supported by evidence - he bases it on published material - check out the link in her Ref 1 for the actual publications; I can't see what else he could have done to make a reasoned case out of that.

The point is that we're now in an evidence-based era; the days of dogma are gone or going. But unless people are allowed to question practices and highlight when they are wrong then nothing can improve.

It seems that, in this case at least, "you can't teach an old dogma new tricks..."

Chris
 

Offline LeeE

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« Reply #4 on: 15/12/2009 23:40:17 »
The point is that there is no case for the scientist to answer.  It is the data and evidence that is being challenged and not the scientist.  Perhaps the scientists who have suffered from this phenomena haven't made that point.
 

Offline graham.d

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« Reply #5 on: 16/12/2009 09:46:32 »
It is not just libel, but any private litigation is hugely in favour of those with wealth. The cost of pursuing a matter in court is prohibitive to the ordinary man-in-the-street. Unless someone is 100% confident in their position, the deterrent factor is the risk of losing; and being right does not necessarily guarantee success either. The "no win - no pay" system that was introduced a few years back can help to a point but has its own disadvantages. An example is public services (i.e. ultimately, taxpayers) getting sued because a person stubbed their toe on a paving slab etc. and giving a market to "ambulance chasing" lawyers.

The article cited does not criticise any particular individual but throws doubt on the validity of chiropractic treatment. I am surprised that this can be classed as libel at all, particularly as, at least in the section quoted, it is mainly a criticism by implication from evidential sources. The point is that even if the libel was not provable, the threat of litigation is sufficient to prevent criticism or to deter a journal from printing such criticism.

This is not just an issue in science. The British libel laws certainly need addressing. The weight is too much in favour of those who are libelled at present. However, I can see no reason why Chiropractic methods cannot be criticised provided there are no ad hominem attacks on chiropracters themselves.
 

Offline Don_1

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« Reply #6 on: 16/12/2009 13:27:40 »
I have heard a number of reports on this matter and all concur with you Chris, as I do. But, as Graham wrote, "...litigation is hugely in favour of those with wealth." The ordinary scientist will be afraid to criticise despite evidence in his/her possession. The problem will be that it will be left to jurors and judges to decide the 'truth'.

We already have a situation where legal entanglement over financial irregularities leaves jury's, with no financial expertise, to decide on matters they do not understand. Are we to have the same situation with scientific research? How can a jury made up of plumbers, bus drivers, checkout operators, carpet salespeople and the like understand, let alone decide on, the in's and out's of drug research or some such case? How can they decide whether this theory or that is correct on a matter of quantum physics?

I think government or the Lord Chief Justice needs to act NOW, to stop this lunacy.
 

Offline LeeE

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« Reply #7 on: 16/12/2009 14:58:46 »
However, I can see no reason why Chiropractic methods cannot be criticised provided there are no ad hominem attacks on chiropracters themselves.

A very good point - unless there has been an allegation against an individual, there has been no libel.
 

Offline glovesforfoxes

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« Reply #8 on: 16/12/2009 16:04:50 »
Quote
However, I can see no reason why Chiropractic methods cannot be criticised provided there are no ad hominem attacks on chiropracters themselves.

They should be able to. Unfortunately people have committed muchos time to learning these techniques, only to find that they are ineffective in many cases. No doubt some would rather try to keep their occupation than look at the evidence when it's a question of livelihood :-\ I sympathise deeply with them - it's a very, very hard position to be in, & no doubt many are angry with Goldacre, though I believe he's right. I read Bad Science about half a year ago, & I was shocked at the level of evil pharma companies represent.

It's a very real problem for me, since I'm doing a Chemistry degree.. I can choose between trying to change them from the inside, or reject working for them altogether. To be honest, the way the system is set up right now, in terms of American patents & profits, I don't think I would like to work for them - there are more efficient ways of helping people. For example prevention of the diseases in the first place is easier & cheaper in poorer countries.

Gillian McKeith.. don't even get me started. I feel dirty walking into Holland & Barratts & knowing that people will buy into her products. I have deep sympathy for both her & her customers for being so sadly misinformed.
« Last Edit: 16/12/2009 16:09:11 by glovesforfoxes »
 

Offline AllenG

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« Reply #9 on: 16/12/2009 17:08:47 »
 

Offline graham.d

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« Reply #10 on: 16/12/2009 17:45:09 »
Ah, patents - there is another world evil that needs sorting. In the electronics/semiconductor industry patents are, primarily, a way of gathering enough weight of material to deter other huge companies from suing you. If you don't have an inventory of patents you can be in a weak position. It does not matter much in 99% of the patent claims are invalid because proving their invalidity can be very costly and time consuming. The people who are supposed to vet patents for validity are, for the most part, not competent to do so. I don't blame them for this as the subject is far too wide and complex for a patent lawyer or even any non-specialist. The large company patents are also a way of deterring small companies from getting into a field of business, which is exactly contrary to their original intent. There is also quite a bit of variation country to country with the USA, for example, not recognising prior art unless patented in the USA (or in other countries well in advance) or publicly disclosed in the USA.
 

Offline Bored chemist

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« Reply #11 on: 16/12/2009 19:24:06 »
As I see it, the problem was that Singh commented accurately on the chiropractors but the judge got it wrong twice.
Firstly he thought that this was a statement of fact, when it was actually a statement of opinion (and thus protected as free speech).
Secondly he thought that the fact was incorrect. Actually the chiroprctaors were engaged in exactly the behaviour that Simngh said they were.
It's not a fault with the law here, it's just a bad court decision.

A year or so back my boss falsely accused me of dishonesty and misconduct.
He insisted that his accusations were true and he put them into my end of year report on which, among other things, my pay and promotion prospects depend.

When I threatened to sue him for libel he retracted the allegations.
He realised that the so called "reversed burden of proof" is the normal burden, but looked at from the other side. It's not "guilty till proven inocent" at all.
I was entirely innocent of the charges he alledged and the law presumes that I am innoocent. That's why he would have had to prove the accusations in order to avoid losing a libel case. If he hadn't lied in the first place I couldn't have threatened to sue him, or I could have threatened, or even sued, but I would have lost as I wouldn't have been able to prove my case.
The idea is thet the court finds out what happened and awards damages accordingly.

The problem here seems to me to be that the court have got it wrong.


 

Offline chris

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« Reply #12 on: 17/12/2009 04:10:45 »
BC - is what your boss did actually libel, or defamation?
 

Offline Geezer

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« Reply #13 on: 17/12/2009 06:13:50 »
Ah, patents - there is another world evil that needs sorting. In the electronics/semiconductor industry patents are, primarily, a way of gathering enough weight of material to deter other huge companies from suing you. If you don't have an inventory of patents you can be in a weak position. It does not matter much in 99% of the patent claims are invalid because proving their invalidity can be very costly and time consuming. The people who are supposed to vet patents for validity are, for the most part, not competent to do so. I don't blame them for this as the subject is far too wide and complex for a patent lawyer or even any non-specialist. The large company patents are also a way of deterring small companies from getting into a field of business, which is exactly contrary to their original intent. There is also quite a bit of variation country to country with the USA, for example, not recognising prior art unless patented in the USA (or in other countries well in advance) or publicly disclosed in the USA.

Graham,

I beg to differ. One of the greatest reasons that there is so much patent litigation and befuddlement that allows the major corporations to push their weight around is that the majority of patents are very poorly written. Ironically, the patents produced by many of the major corporations are among the worst!

Individual inventors can still find significant gaps in prior art and obtain patents to improve the art. However, like most things, the inspirational part is a mere fraction of the total effort required.
 

Offline Bored chemist

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« Reply #14 on: 17/12/2009 07:10:53 »
BC - is what your boss did actually libel, or defamation?
It was libel.
He called me a liar and I'm not. He accused me of misconduct and, in doing so , he lied.
I don't want to give details here but there's no question that what he wrote was defamatory and since he copied it by email to a number of other people, it's libel.
« Last Edit: 17/12/2009 07:12:40 by Bored chemist »
 

Offline graham.d

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« Reply #15 on: 17/12/2009 09:06:18 »
Geezer, I detect you know something of the electronics industry. The IEEE journal (JSSCC) used to publish a handful of granted patents every couple of months and I can guarantee there would always be a version of the Schmitt trigger in there!! For non-electronics people this is like re-inventing a football on a regular basis.

Having been in both huge and small semiconductor companies (and also having run my own company) for many years, I can attest that the large companies have an upper hand in this game, although it costs them a fair bit of money and time. I agree the patents are often badly written and can allow gaps that allow improvements in existing inventions (I have a few myself) but the cost, time and effort of getting a patent in multiple countries and then defending will more often not yield a worthwhile return.

Some good patents still emerge from univerity departments who now often will be associated with a company to exploit their research. I think this is a shame as I think it corrupts the principles behind the concepts of a university, but I can see that the univerities need the money.

I am not saying there are no good patents and that these are not deserving of reward, but the vast majority are not in this class. The purpose of patents is to protect, encourage and reward invention, particularly for the small company or individual, but that is far from the effect in most cases. I used to like IBM's approach; they rarely (relatively) patented anything but simply disclosed inventions to stop others preventing their use via patents.
 

Offline Geezer

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« Reply #16 on: 18/12/2009 05:17:12 »
Graham - I don't disagree with your observations about the electronics industry. It's basically a game based on shear weight of numbers. Also, as I'm sure you know well, it's usually not so difficult to design around a patent to avoid infringement, or at least put things into a grey area. My point is that if an inventor really solves a problem in a novel way, they should consider patenting it, but it's not for the faint hearted!

Case in point 
 

Offline HarrietD

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« Reply #17 on: 18/12/2009 13:31:08 »
Yes LeeE, but the problem is that people/companies threaten to sue writers even when they know they’re not going to win. This is because most writers will back down when faced personally with a £100,000+ libel suit. It doesn’t matter how much data/evidence there is -it still takes a lot of time and money to fight the case, which most science writers don’t have. The writer will take down the article, or delete the comment, and the general public will never hear of it. This is terrible for science, and dangerous for the general public.

Even winning a libel case does not solve the problem- according to some of Ben Goldacre’s posts the guardian is still massively out of pocket from their case, despite winning.

The current libel laws are being used to silence scientists, and this must stop. We need libel reform, and fast.
 

Offline LeeE

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« Reply #18 on: 18/12/2009 21:59:12 »
This is because most writers will back down when faced personally with a £100,000+ libel suit.

This is what I don't understand.  Why would someone back down when they know they're just representing the data and evidence?  If anyone is to blame for this state of affairs it is those people who have backed down in these cases, which has then encouraged further cases.

Anyone who doesn't stand up to this type of legal bullying when they have the data and evidence to prove their case is condoning the act of bringing a libel against them, and even worse, to others by backing down and allowing the action to pass.  Rather than bringing truth, which was the original intent, they're condoning falsehood.  Knowledge comes with a responsibility to defend it; failing to defend it, once discovered, is suppressing that knowledge.
 

Offline rosy

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« Reply #19 on: 18/12/2009 22:38:02 »
Rubbish, LeeE.
There are several factors here. One is that the "costs" paid by the unsuccessful party are not always the full costs of the successful party in defending their position. Another is that in order to be successful it is necessary to place ones trust, to the point of one's house and the wherewithall to buy the kids' Christmas presents/fund them through university, in a legal system whose reputation is not, frankly, 100%. Even if it's 99% that's not a gamble everyone feels they can make, if they have responsibilities to other people. Finally, big companies can hire damn good lawyers and if you're a moderately-paid scientist then you can't necessarily afford to get near enough to such a person to convince them of your case.
 

Offline LeeE

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« Reply #20 on: 18/12/2009 23:08:58 »
I think you, and many other, may have accepted too much of the legal professions' propaganda re the need to pay for expensive representatives to defend you, especially when it is the data and evidence that is actually being accused.  If you are reporting what the data and evidence suggests and you are not making a statement about a specific individual there is no case to answer.

Arguing that you should not defend this point because there is a risk of failing just seems worse, to me, than worrying about being hit by a falling meteorite.  It's worse because being hit by a meteorite is purely down to chance whereas defending the facts is entirely the opposite.  Failing to defend valid data and evidence, because of fear is neurotic.
 

Offline chris

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« Reply #21 on: 19/12/2009 23:57:57 »
But the point is LeeE that Simon Singh has done exactly what you suggest - if you look at the Ref 1 cited in the article you can see that all Singh's done is to put forward evidence against chiropractic. Nothing he says isn't supported by a published and peer-reviewed evidence base.

Yet, despite this "evidence", the judge initially found against him and then he had to appeal in order to appeal!

I think part of the reason is that judges know bugger all about scientific method, or at least this one did. Otherwise this sorry situation wouldn't exist.

The point is though that if I had written that article and been hit by the BCA with a libel suit, then I would have caved-in on financial grounds.

It's only because Simon Singh has got existing wealth (and a very good chance of selling this story or at least trading off the back of the publicity it's creating) that he's been able to take this course of action - and good luck to him. Most people, however, would not...
 

Offline LeeE

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« Reply #22 on: 20/12/2009 11:57:27 »
Don't get me wrong, insofar as I don't believe that the legal process is always perfect; far from it, but challenging it when it is wrong is the only way to fix it.

I don't know how much personal wealth Simon Singh had, to feel that he could challenge it, but it was that wealth that he risked losing.  I would love to be challenged in a similar case; I have no wealth, to the extent that I can barely afford to wipe my bottom, but then it also means I have literally nothing to lose and any damages would have to come out of my JSA - Lol.  Heh! - it would soon descend into farce as it would mean at least a 20+ mile walk to and from court each day, which isn't really feasible due to arthritis and PAD, and engaging any sort of legal defence would be out of the question.  Nevertheless, if I was supporting valid data and evidence I could not respect myself if I were to back down.
 

Offline Meera

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« Reply #23 on: 21/12/2009 17:55:36 »
which isn't really feasible due to arthritis and PAD...

...maybe you should see a chiropractor about that...!
 

Offline Variola

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« Reply #24 on: 21/12/2009 22:42:30 »
I would like to see the original piece, unedited. I would also like to see exactly the British Chiropractic Association are objecting too. In my opinion, the article is ill-researched, prejudiced, and sensationalist, all the hallmarks of a newspaper article. But still cannot fathom what could be considered libellous enough to warrant legal proceedings. It really isn't much different to any other newspaper article written about anything else in this country.
 

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« Reply #24 on: 21/12/2009 22:42:30 »

 

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