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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The Tory-DUP deal has left Scotland and Wales seething

It is quite something to threaten the Northern Irish peace process and set the various nations of the UK at loggerheads with merely one act.

Politics in the UK is rarely quite this crude, or this blatant. The deal agreed between the Conservatives and Northern Ireland's Democratic Unionist Party has – finally – been delivered. But both the deal and much of the opposition to it come with barely even the pretence of principled behaviour.

The Conservatives are looking to shore up their parliamentary and broader political position after a nightmare month. The DUP deal gives the Tories some parliamentary security, and some political breathing space. It is not yet clear what they as a party will do with this – whether, for instance, there will be an attempt to seek new leadership for the party now that the immediate parliamentary position has been secured.

But while some stability has been achieved, the deal does not provide the Tories with much additional strength. Indeed, the DUP deal emphasises their weakness. To finalise the agreement the government has had to throw money at Northern Ireland and align with a deeply socially conservative political force. At a stroke, the last of what remained of the entire Cameron project – the Conservative’s rebuilt reputation as the better party for the economy and fiscal stability, and their development as a much more socially inclusive and liberal party – has been thrown overboard.

Read more: Theresa May's magic money tree is growing in Northern Ireland

For the DUP, the reasoning behind the deal is as obvious as it is for the Conservatives. The DUP has maximised the leverage that the parliamentary arithmetic gives it. As a socially conservative and unionist party, it has absolutely no wish to see Jeremy Corbyn in Downing Street. But it has kept the Conservatives waiting, and used the current position to get as good a deal as possible. Why should we expect it to do anything else? Still, it is hardly seemly for votes to be bought quite so blatantly.

The politics behind much of the criticism of the deal has been equally obvious. Welsh First Minister Carwyn Jones – representing not only the Labour party, but also a nation whose relative needs are at least as great as those of the six counties – abandoned his normally restrained tone to describe the deal as a "bung" for Northern Ireland. Scotland’s First Minister Nicola Sturgeon was also sharply critical of the deal’s lack of concern for financial fairness across the UK. In doing so, she rather blithely ignored the fact that the Barnett Formula, out of which Scotland has long done rather well, never had much to do with fairness anyway. But we could hardly expect the Scottish National Party First Minister to do anything but criticise both the Conservatives and the current functioning of the UK.

Beyond the depressingly predictable short-term politics, the long-term consequences of the Tory-DUP deal are much less foreseeable. It is quite something to threaten the integrity of the Northern Irish peace process and set the various nations of the UK at loggerheads with merely one act. Perhaps everything will work out OK. But it is concerning that, for the current government, short-term political survival appears all-important, even at potential cost to the long-term stability and integrity of the state.

But one thing is clear. The political unity of the UK is breaking down. British party politics is in retreat, possibly even existential decay. This not to say that political parties as a whole are in decline. But the political ties that bind across the UK are.

The DUP deal comes after the second general election in a row where four different parties have come first in the four nations of the UK, something which had never happened before 2015. But perhaps even more significantly, the 2017 election was one where the campaigns across the four nations were perhaps less connected than ever before.

Of course, Northern Ireland’s party and electoral politics have long been largely separate from those on the mainland. But Ulster Unionist MPs long took the Tory whip at Westminster. Even after that practice ceased in the 1970s, some vestigial links between the parties remained, while there were also loose ties between the Social Democratic and Labour Party and Labour. But in 2017, both these Northern Irish parties had their last Commons representation eliminated.

In Scotland, 2017 saw the SNP lose some ground; the main unionist parties are, it seems, back in the game. But even to stage their partial comeback, the unionist parties had to fight – albeit with some success – on the SNP’s turf, focusing the general election campaign in Scotland heavily around the issue of a potential second independence referendum.

Even in Wales, Labour’s 26th successive general election victory was achieved in a very different way to the previous 25. The party campaigned almost exclusively as Welsh Labour. The main face and voice of the campaign was Carwyn Jones, with Jeremy Corbyn almost invisible in official campaign materials. Immediately post-election, Conservatives responded to their failure by calling for the creation of a clear Welsh Conservative leader.

Read more: Did Carwyn Jones win Wales for Labour  - or Jeremy Corbyn?

Yet these four increasingly separate political arenas still exist within one state. The UK was always an odd entity: what James Mitchell astutely termed a "state of unions", with the minority nations grafted on in distinct and even contradictory ways to the English core. The politics of the four nations are drifting apart, yet circumstances will still sometimes mean that they have to intersect. In the current instance, the parliamentary arithmetic means the Tories having to work with a party that celebrates a form of "Britishness" viewed increasingly with baffled incomprehension, if not outright revulsion, by the majority of Conservatives, even, on the British mainland. In turn, the Tories and other parties, as well as the news-media, are having to deal with sudden relevance of a party whose concerns and traditions they understand very little of.

Expect more of this incomprehension, not less, in the post-2017 general election world. 

Roger Scully is Professor of Political Science in the Wales Governance Centre at Cardiff University.

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