Public health and free speech

When should free expression be limited for the public good?

The Advertising Standards Authority (ASA) today expands its remit to cover use of websites.

Until now misleading advertisers could escape sanction if they used their own webpage for their claims and not, say, a billboard poster or a newspaper advert. Already those opposed to the making of misleading claims by alternative health practitioners -- the new Nightingale Collaboration, Le Canard Noir and Ministry of Truth, as well as many others -- are poised to launch complaints to stop internet-based quackery and its promotion of bogus treatments for which there is not a jot of evidence.

This expansion of the ASA's remit, announced last September, will bring welcome consistency to what was a muddled and potentially dangerous situation for consumers. However, the expansion also raises the general question as to what is the correct relationship between free speech and public health.

The successful defence by Simon Singh of the misconceived and illiberal libel claim brought by the now discredited British Chiropractic Association emphasised that it is important that those making claims for the efficacy of certain remedies should be open to criticism. A spate of similar libel claims over the period 2008-10 involving scientists and science writers triggered the popular and influential Keep Libel Out Of Science campaign by Sense About Science (of which I am on the advisory board). There is an overwhelming public interest in scientists and science writers being uninhibited in being able to question and expose shoddy claims. One hopes this is reflected in the impending draft libel reform bill.

Accordingly, the general principle appears to be that those who promote treatments should be regulated in what they can say, while those who criticise promotions of treatments should always be free from any legal restraints. The overall public interest is thereby served by certain "speech acts" being prohibited whilst others are protected.

However, this general principle does have unwelcome possible implications. There are individuals whose attacks on MMR vaccines or antiviral treatments for HIV seem to border on the criminally irresponsible, almost to the point of facilitating manslaughter. Surely there must be some legal remedy to prevent such dangerous "speech-acts" when those heeding the attacks may well die? Are these attacks not the modern equivalent of Oliver Wendell Holmes's old roasted chestnut of falsely shouting fire in a crowded theatre? Shouldn't "anti-vaxers" and "HIV denialists" be banned?

The problem here lies partly in rhetoric. The bare assertion of the general right to free speech to criticise any purported treatments can easily be exploited by the knave and the fool. Perhaps their abuse of free speech is a price worth paying for a liberal society; or perhaps there really should be some sort of a prohibition on their bad "speech acts" which does not affect good "speech acts".

Nonetheless, knaves and fools will no longer be able to make misleading advertising claims on their websites which they cannot in posters and newspaper adverts. This is surely a victory for the public interest over the misuse of advertising space by quacks and others.

But it remains less clear how laws and rules should, if at all, prevent the misuse of free expression in undermining highly-beneficial treatments. In these cases, is free speech more important than public health?

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Quiz: Can you identify fake news?

The furore around "fake" news shows no sign of abating. Can you spot what's real and what's not?

Hillary Clinton has spoken out today to warn about the fake news epidemic sweeping the world. Clinton went as far as to say that "lives are at risk" from fake news, the day after Pope Francis compared reading fake news to eating poop. (Side note: with real news like that, who needs the fake stuff?)

The sweeping distrust in fake news has caused some confusion, however, as many are unsure about how to actually tell the reals and the fakes apart. Short from seeing whether the logo will scratch off and asking the man from the market where he got it from, how can you really identify fake news? Take our test to see whether you have all the answers.

 

 

In all seriousness, many claim that identifying fake news is a simple matter of checking the source and disbelieving anything "too good to be true". Unfortunately, however, fake news outlets post real stories too, and real news outlets often slip up and publish the fakes. Use fact-checking websites like Snopes to really get to the bottom of a story, and always do a quick Google before you share anything. 

Amelia Tait is a technology and digital culture writer at the New Statesman.