Dutch Sceptics Have ‘Bogus’ Libel Decision Overturned On Human Rights Grounds.

The Dutch sceptics group, Vereniging tegen de Kwakzalverij (VtdK – The Society against Quackery) have managed to overturn a important court ruling that was preventing them calling quacks quacks. In a remarkable case, that in many ways closely parallels the BCA vs. Simon Singh case in the UK, a judge has decided that using a narrow definition of the word ‘Quack’ that a previous ruling was forcing the group to defend in a libel case, was incompatible with Article 10 of the European Convention of Human Rights.

The Society against Quackery claims to be the world’s oldest sceptics group. Its first newsletter was published in 1881 (Google translation) and has campaigned ever since against the misleading claims of alternative medicine.

In 2000, their magazine published an article “Quacks of the 20th Century” that looked back over the last 100 years and wanted to ‘preserve the history’ of the characters that had dominated, in their view, the world of quackery. They published a score card of how they had arrived at the top twenty quacks and stated that this list was “not meant to belligerently settle scores” but provide ‘insight into the personality of the healers of this period”.

In publishing their top 20 list, the Society were quite careful to explicitly define what they meant by the word ‘quack’. They said, (Google translation)

‘Quackery is:
(a) any professional act and/or the extending of advice or assistance related to the state of health of either man or animal;
(b) which is not founded on contemporary and/or empirically tenable hypotheses and theories;
(c) which is actively propagated among the public (“over-promotion”);
(d) which has not been tested on efficacy and safety within the professional group;
(e) which is (usually) performed without consultation of fellow practitioners.’

Now, you may not agree with this definition. And that is fine. But it is important to note that this is what the Society explicitly said about the meaning of the word. The Society also made it quite clear about what they thought about the honesty of such people:

As has been made clear by the Society & co, being labelled a ‘quack’ does not in the least imply bad faith or fraud: in practice, it is hardly possible to establish this. Therefore, nominees on the “long list” need not feel they are accused of immoral behaviour; the only thing they are accused of is quackery and nothing else!

I quite agree with this. In my explorations with the Quackometer, I can say that one of my biggest discovered undertsandings is that there are very few people out there practicing alternative medicine that fit into a simple categorisation of ‘fraud’. Most people sincerely believe that what they practice is genuine and are sincerely trying to help people. They are not deliberately misleading people, they are just mistaken in their beliefs. And why they are mistaken is much more fascinating and insightful into human behaviour than mere trickery and con-artistry. And when I do suspect genuine fraud, it is impossible (bar a few exceptions) to prove that this is the case. As the Dutch Society make clear, “it is hardly possible to establish this”.

At number seven on the list was a doctor by the name of Maria Sickesz (Google translation) who claims to be a “doctor of Orthomanual Therapy”. Sickesz believes that she has “developed a unique method to correct misalignments of the spine and the pelvis. She pays attention to the individual misalignment of each vertebra and noticed that they followed specific patterns.”

Misalignments of the bones in the back can be responsible or add to all sorts of diseases according to her. She claims to be able to treat “syndromes such as lung and digestive disorders, problems with the menstrual cycle, ADHD, autism, multiple sclerosis, Parkinsonism”. According to the VtdK, she has claimed to be able to treat “anorexia, asthma, autism, bipolar disorder, dementia, depression, diarrhea, eczema, palpitations, high blood pressure, fever, stomach pain, menstrual complaints , migraine, neck pain, tinnitus, psychosomatic stomach, schizophrenia” all by manipulation and hammering of the spine. She says that “The connection between these seemingly unrelated conditions and the spine is that the nerves, which serve all areas of the body, can be irritated directly or indirectly by spinal disorders.”

Yes. Sickesz has developed hew own brand of chiropractic or osteopathy. Indeed, a paper by her describes her subluxation based theory of why children develop colic. It is pretty indistinguishable from the sort of nonsense promoted by British chiropractors.

Displaying what we now know to be a typical chiropractic response to criticism, she decided to sue the VtdK for calling her a quack. An initial ruling by a district court said that the Society had not acted unlawfully and rejected Sickesz’ claim to prohibit the society from calling her a quack. However, on appeal, this decision was overturned and the Society was told not to repeat the claim and to issue an apology in De Telegraaf, a popular daily newspaper. It would appear that the main reason was that a major Dutch dictionary, “Van Dale, Groot Woordenboek der Nederlandse Taal” described quackery as follows: “

Someone who applies useless remedies to cure some disease or other or claims knowledge of remedies for all kinds of diseases, and/or someone who offers such remedies for sale, usually with a lot of noise; – unqualified practitioner of medicine, (fig) someone who wants to take the public for a ride, syn. cheap swindler, fraud, trickster.

This is a far more negative definition that the one offered by the Society in their article and the court decided that it is this meaning that the ‘ordinary’ man would ascribe to their article despite the Society being explicit about what they meant.

The Society decided to appeal this decision as it had far wider implications than just this case. Indeed, it would make it very difficult to talk about quackery in the Netherlands at all if courts were to take it as fact that an accusation of quackery meant that the Society were calling someone a “cheap swindler, fraud [and] trickster.” Fortunately, at appeal last May, this decision was overturned by the Supreme Court of the Netherlands. A number of very interesting things were said.

The Society claimed they had a duty and a right to warn the public about medical treatments that claim to be effective but are not supported by science. They believed there was no scientific evidence to back up Sickesz’ claims. They claimed the treatments met with fierce criticism from academic circles and that the treatments could even be dangerous,

Five experts in the fields of neurology, internal medicine, lung diseases and psychiatry, when asked for their scientific opinion, said: ‘the answers not only show that there is not a jot of scientific backing in serious medical literature for the opinions of Sickesz, but also that experts cannot even imagine that OMM could have any efficacy for their professions.’ The Society & co also have concerns about the safety of the manipulations. They have placed Sickesz on the list not just because of her claims concerning neck and back complaints, but mainly because of her other claims.

The court looked at the case from the perspective of the European Convention on Human Rights. They had to balance Article 8 that gave Sickesz a right to personal privacy against Article 10 that gave the Society a right to free expression. The court had to decide between a “colliding of fundamental interests interests in determining what level of carefulness should be practiced in society towards one’s fellow man.”

The Supreme court found in favour of the Society against Quackery. The court decided that the definition of ‘quack’ must follow the Societies own definition if it is to protect its right to free expression. That an average reader might not have the same definition cannot be blamed on the Society. Furthermore, there was substantial important public interest in the publications of the Society and so the publication of the list with Sickesz name on it cannot be “unlawful or grievous towards her”.

No justice is done to this freedom when no attention is being paid to the content that the Society & co themselves have given to the term and the context in which the term is used. The [previous] court has also failed to take into account that the publication with the list of quacks comes from a society with a serious character and a serious aim and the circumstance that in the medical world a treatment is considered quackery when it is claimed that it can cure something while there is no scientific evidence to support this claim.

It was also noted that the publication did not say anything about Sickesz private life but only discussed aspects that were matters of public interest and should as a matter of principle be part of a public debate. As such, the court said that “there must be sufficient room for freedom of expression in situations like these”.

This freedom of expression was characterized by the European Convention of Human Rights as ‘one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment’ and consequently: ‘must be narrowly interpreted and the necessity for any restrictions must be convincingly established.’

This court hearing only overturns a decision by a previous court that the Society should defend itself on the basis of the dictionary definition rather than their own definition. My understanding is that the full case is yet to be heard.

What does this mean for the current British Chiropractic Association vs. Simon Singh case in the UK? I present this here simply as a parallel and a reflection on how other countries might view such cases. Simon Singh is in quite a different situation at the moment.

The Dutch case has very much depended on the court allowing decisions to be appealed. Simon has of yet no such luxury and must defend his article on the definition of the word ‘bogus’ handed to him by Justice Eady – and that definition is that ‘bogus’ implies dishonesty. As Simon made his own meaning of the word bogus quite clear in his article as referring to chiropractic’s lack of evidence, he has to defend his position on a basis that quite obviously he himself does not believe.

Simon also has currently no platform to defend his case on European Human Rights grounds. But it is worth noting that the laws considered by Dutch judges are also applicable in the UK. Whether, a similar conclusion can be come to in this British case I will leave to better qualified commentators although my amateurish perspective would suggest that Simon would have very similar grounds to appeal.

Simon Singh must decide this week how best to move forward either with an oral appeal or some other route. This decision will undoubtedly rest not just on the apparent injustice being done but also on the financial and emotional drain placed on Simon (Defending English libel law may cost a hundred times more than most European proceedings, plus Simon has to defend his article on his own.)

My own commentary would be this:

Science is so successful because of one central feature: its self correcting nature. Ideas in science get better over time. Ideas that do not match reality are discarded and those that do survive testing are refined and become more useful. The Dutch sceptics are in the fortunate situation they find themselves because the legal decisions so far have been subjected to several bouts of scrutiny and refinement. Everyone in the Netherlands should have confidence that those decisions have got better with each legal iteration.

Simon Singh has not been so fortunate. He has been refused permission to subject the current ‘bogus’ ruling to any scrutiny under an appeals process. He is currently subjected to the tyranny of the man on the Clapham omnibus where the meanings of the words he has written has been decided by one man who appears to believes he can have definitive and infallible insight into the mind of the ‘common man’. There is currently no mechanism to question that ruling and so Simon is being forced to defend his words in the terms of a definition that is quite arbitrary, at the extreme of possible interpretations and in contradiction with Simon’s own stated definition.

And even if Justice Eady’s is right (and many doubt it is), then what the Dutch decision shows us is that by forcing Simon to accept an opinion about quackery that Simon would himself believe to be ill informed and ignorant of the true nature of alternative medicine then he is being denied a legitimate right to free expression about an issue of important public health. The ordinary man on the Clapham omnibus may indeed view quackery as simple fraud, but it is vital for public health for people to appreciate that it may be a little more complicated than that. And laws that force Simon to accept this situation are fundamentally unjust and oppressive according to rights that are now enshrined in European law.

The more I look at how English libel law operates the more convinced I am that such laws are an anachronism. Born in an age where a gentleman needed his honour protected against the tittle-tattle of the popular press, they now serve as a source of oppression where the powerful, the wealthy, the corrupt and the vested interest can close down democratic discussion. We now live in an age where we are all publishers, not just the press. The law is out of step and if the BCA vs Singh case causes fresh thinking about how we mediate the various rights involved in free speech then a great good will have been done.

With thanks to Cees Renckens (pictured) of Vereniging tegen de Kwakzalverij and to Jo van Ringen for translating the court papers (my Dutch is limited to ordering a beer at the bar). I must add that the opinions and interpretations discussed are mine alone.

13 comments for “Dutch Sceptics Have ‘Bogus’ Libel Decision Overturned On Human Rights Grounds.

  1. SVETLANA PERTSOVICH
    August 3, 2009 at 9:51 pm

    Bravo, Dutch Skeptics!

    Sorry, but it seems ultimately the point is not laws even…
    The main point is PEOPLE.
    Courageous (and clever) people win.

  2. Richard
    August 3, 2009 at 9:58 pm

    I'm also having trouble seeing the point of libel law right now – Would the sky really fall in if it went the same way as the blasphemy law? In place of the sacred taboo around religion we're left with this near-sacred taboo around people's oh-so-precious reputations…

  3. Jack of Kent
    August 3, 2009 at 11:14 pm

    "The more I look at how English libel law operates the more convinced I am that such laws are an anachronism. Born in an age where a gentleman needed his honour protected against the tittle-tattle of the popular press, they now serve as a source of oppression where the powerful, the wealthy, the corrupt and the vested interest can close down democratic discussion. We now live in an age where we are all publishers, not just the press. The law is out of step and if the BCA vs Singh case causes fresh thinking about how we mediate the various rights involved in free speech then a great good will have been done."

    Indeed.

  4. Jan Willem Nienhuys
    August 4, 2009 at 8:17 am

    Excellent summary of the Sickesz case. I would like to add one more detail. The Supreme Court stated explicitly that "kwakzalver" (quack) is not a kind word. The Amsterdam higher court had used a dictionary for this, but in the opinion of the Supreme Court this was superfluous. As the Supreme Court saw it, the issue was: should the Society be held responsible for how journalists or the public interpret or misinterpret the term quack?

    In my opinion Mrs Sickesz had been angered by a newspaper report about her nomination as the 7th worst Dutch quack of the 20th century. Indeed, the article in "de Volkskrant" used the terms quack, liar, cheat, charlatan many times and obviously as synonyms of each other. Later the chairman of the Society wrote a kind letter to her explaining that it wasn't meant like that, but in the end this could not make Mrs. Sickesz anger subside, especially because she is convinced of the value of her treatment mode.

    So the Supreme Court delved into the question: "can the Society be held responsible for misinterpretations?" The Amsterdam higher court had argued that the common meaning of "quack" was so evident that any prudent person would have known that there would be a serious risk that journalists would not pay attention to the Society's own definition. The Amsterdam lower court had said just the opposite. The Supreme Court said that the Society had been clear enough.

    So in a kind of juridical calculus, the Supreme Court decided that the Amsterdam higher court had not provided enough reasons for its opinion. (In the Netherlands the Supreme Court only decides whether the judges have applied the law correctly.) The law clearly implies that if art. 10 ECHR is ignored or judged to be not important enough, then this should be very carefully argued. This careful argumentation was missing from the decision of the Amsterdam higher court. In fact they didn't even mention art. 10 ECHR if I recall correctly. Merely pointing at a dictionary definition and simply ignoring the care the Society took to explain its intentions, cannot be considered a carful argumentation.

    Put more simply: art. 10 ECHR (Freedom of expression) is not absolute, but you have to be extremely careful to argue that there are cogent reasons why this article must yield to other articles of the European Convention of Human Rights.

    If the case is ever retried (it's not up to the Society or the Supreme Court to decide this) the judges will have to take into account the directives of the Supreme Court. The Supreme Court has also said that Mrs. Sickesz' claim to (e.g.) cure epilepsy by manipulating the neck is clearly unscientific and that therefore the Society's definition applies.

    As long as there is no decision in a retrial, the verdict of the Amsterdam lower court (which in favor of the society) stands.

  5. Le Canard Noir
    August 4, 2009 at 8:34 am

    Thankyou Jan. Very helpful.

  6. David Allen
    August 4, 2009 at 1:04 pm

    An interesting development but it is a valid observation that in all reasonableness one cannot re-define a word solely in order to be critical of another regardless of whether or not the better known definition might generally obtain.

    For example I couldn't write an article accusing someone of being a murderer even if I defined the word murderer as something other than that generally understood by the term purely for the purposes of the article.

    Maybe this has some way to run.

  7. exarch
    August 4, 2009 at 2:42 pm

    David makes a good point. There is the slippery slope of redefining words as we want to make them fit the situation in order to sneak in the more ugly definitions that people will read.

    At the same time, murder for example, is a pretty well defined legal term to start with, and on top of that there's not much wiggle room to define it as anything less than one person taking another person's life.

    There are however plenty of words that offer a much wider scope of misuse. Words already laden with emotion, like racism, sexism, etc…
    People should be free to say whatever they want, but at the same time be willing to take the consequences of their words if they violate someone else's rights. Especially if they use those words in a meaning too far removed from the dictionary definition. Iit's not just about what you want to say, it's also about what you want your audience to hear.

    As far as I know though, calling someone out on their publicly spouted bulls#!t is not a violation of their rights. It's showing them the consequences of their OWN "freely spoken" words …
    Both Mrs Sickezs and the BCA are suffering the consequences of having their baseless assertions examined. Something they could have avoided had they been more truthful with their claims.

  8. Le Canard Noir
    August 4, 2009 at 3:01 pm

    But David and exarch – are you not missing a really fundamental point here? Words do not have absolute an immutable meanings. Dictionary definitions are a convenience not an unchanging constant. Usage drives definition – not the other way around. In science, the meanings of terms and concepts evolve as our understanding does. What we mean now by 'atom', 'planet' or 'star' is quite different to what we might have meant two hundred years ago (or two years ago with 'planet').

    Quackery has existed for many years and it may have been assumed in many quarters that it is a simple act of fraud. But we can re-appraise the many quacks both past and present and see that quackery need not be fraud but can arise from much more interesting and complex psychological motivational factors. It is quite probable that the popular understanding of quackery is quite wrong and that those interested in the subject should attempt to correct these misconceptions. It looks like the VtdK did just this. As I say, it is a tyranny of the man on the Clapham omnibus (or Amsterdam tram) to judge them against these misconceptions.

    Simon Singh used a word 'bogus' that also has a fluid meaning – its pop culture meaning has shifted away from its original 'counterfeit' meaning. Writing in a daily newspaper should take this into account – especially when Simon actually described the specific meaning he was using within a spectrum of possible meanings. Again, to judge Simon by a definition that was not his own and at an extreme of possible usages is again an injustice.

  9. SVETLANA PERTSOVICH
    August 4, 2009 at 8:50 pm

    http://www.dcscience.net/?p=2007&cpage=1#comment-3596

    If statutory regulation of CAM will be adopted in UK, Singh's case will seem simply childish feast compared to future situation!

    Say "No" to a possible statutory regulation of CAM in UK.

  10. BadlyShavedMonkey
    August 5, 2009 at 1:54 pm

    LCN,to enlarge a bit on these slippery meanings:

    When I say 'quack' I mean 'quack' and I definitely mean it in a deeply pejorative way. I do not want a situation where we are forced to pretend that we mean these words to be used in a sense characterised by the more polite end of the dictionary definition. I do not mean that most quacks are deliberately dishonest, but if I think of someone as a quack and would like to describe them as such in public I definitely mean it to imply that they are reckless of the truth of what they claim and very possibly ignorant of how to establish the truth. It is wholly unreasonable that they can go crying to Mummy/Justice Eady to complain that big boys have been rude to them instead of being forced to place their counter-arguments in the domain of public discourse for all to see. What we are seeing at the moment is quacks tending to run to the referee because they can't play the game very well.

    Behind all this us the problem that the law seems to see all 'reputations' as being equal. A defining quality of a quack is that their reputation is illegitimately acquired. That reputation needs to be destroyed, indeed it is our moral duty to do so!

    There should be a guarantee of right to reply but no guarantee of a right to suppress critical comment.

    I think we are in danger at the moment of being too mealy-mouthed and I see some of the defence of the word 'bogus' or the Dutch society's self-definition of the word 'quack' as being a bit disingenuous. These are meant to be rude words and I feel that the attempts being made to take the sting out of them are a bit expedient.

    One last point on shades of meaning. If someone is a 'bogus doctor' they are committing a conscious fraud. If a quack deals in bogus treatments they may well not be frauds but there is definitely a sense in which that axis of therapist and therapy is immoral in a way that innocent use of a reasonable but disproven treatment by a non-quack is not.

    I can think of examples of diseases where they used to be treated one way, but medicine has moved on and our basis of understanding has changed so we treat those same diseases in a wholly different way. I don't think a physician would describe the previous mode of treatment as 'bogus', it would be called 'out-moded' or 'disproven' or 'superseded'. Bogus carries a pejorative edge that it shares, for instance, with 'discredited'. Both words reflect badly on those advocating and using them, and rightly so.

    Eady defined 'bogus' as in 'bogus doctor', but I think it is equally wrong to counter that by saying that bogus means the same as 'ineffective'. It does not.

    I think that Simon Singh's intention in those unfortunate sentences was to capture that morally deficient status, but genuinely without implying actual dishonesty.

  11. BSM
    August 5, 2009 at 3:13 pm

    "Both words reflect badly on those advocating and using them.."

    That was sloppy of me. By 'them' I meant the treatments themselves not the words being used to describe the treatments.

  12. Cees Renckens
    August 7, 2009 at 7:25 pm

    A comment based on a testimonial by W.G. Klooster, emeritus professor of Dutch Lin-guistics (University of Amsterdam), submitted by the VtdK in the Sickesz-case: ‘On the status of definitions in Van Dale comprehensive dictionary of the Dutch language’.

    In principle, the authority which must be attached to the definitions of words in Van Dale does not exceed that of other bodies to which knowledge of the subjects in question can be ascribed. In fact, Van Dale often carries even less authority. A definition in Van Dale is there-fore by no means to be seen as the only source of referral. Dictionary makers try to derive definitions from general language usage, basing themselves on references which are consid-ered representative.
    In the prefaces since the 12th edition Van Dale’s editors write:
    ‘The dictionary maker can only hope that his definitions succeed in giving the reader some insight into the hardly fathomable phenomenon called description of meaning.’
    Dictionary definitions do of course offer some basis, but as far as authority is concerned, they not necessarily outweigh other definitions. (…) A well-known and unavoidable weakness are the ‘loops’ in dictionary definitions: under abstract we find ‘not concrete’ – and under con-crete we fin ‘not abstract.’ Circularity in descriptions of meaning generally indicates that the competence of others is needed to provide the lexicographer with more specific informa-tion.(…)
    We can conclude that lexicographers should not and in fact do not deny bodies of recognized authority other than themselves the qualification to formulate relevant descriptions and defini-tions of a given concept. On the contrary, whenever necessary and possible, they particularly derive their descriptions from expert’s language usage.
    One could argue that in disputes of a various nature, practical considerations militate for using the dictionary deemed by the majority as most authoritative as the only source for descriptions of meaning. However, a ponderous argument against this is that dictionary definitions are not always adequate to serve as such.
    For example, how is it to be decided on the basis of a dictionary in which cases the ‘capacity’ of being ‘judicious’ in matters concerning the relevant field of expertise may be ascribed to a certain practitioner or organisation? Because the dictionary can provide no decisive answers to this question, in these cases definitions will have to be made more explicit – while avoiding circularity – with additional criteria, preferably provided by persons with extensive knowledge in the particular area.
    Thus, the question as to who may be qualified as a quack should primarily be answered by those who, by law or any other recognized authority or in a particular capacity, are deemed to be judicious in the field of medicine. Van Dale does not have such authority.

    In summary: the dictionary is a useful but by no means infallible source of information con-cerning the meaning of words. Especially in disputes, more expertise and explicitness is needed. The judge cannot avoid the duty to determine which persons are to be considered authoritative in the relevant area: who can decide whether someone is judicious in matters of medicine? It is these persons, dear David and Exarch, who can say whether someone is a quack or not. (Replace dictionary by ‘judge’ and quack by ‘bogus’!)

  13. Dr Benway
    September 12, 2009 at 5:04 pm

    I dated a few bogus boyfriends over the years and learned that one can waste ridiculous amounts of time trying to sort whether a person is intentionally or unintentionally behaving like a jerk.

    IANAL, but I note that criminal accusations typically require some evidence of *willful* wrongdoing. Civil complaints may use the lighter standard of "could have known" or "should have known."

    Being wrong but sincerely wrong and well-intentioned might be enough to get a person off the hook in many situations. But it's not enough for doctors. The "should have known" standard applies. People die when doctors get their facts wrong.

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