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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Why Theresa May can't end speculation of an early general election

Both Conservative and Labour MPs regard a contest next year as the solution to their problems. 

One of Theresa May’s first acts as a Conservative leadership candidate was to rule out an early general election. After a tumultuous 2015 contest and the EU referendum, her view was that the country required a period of stability (a view shared by voters). Many newly-elected Tory MPs, fearful of a Brexit-inspired Ukip or Liberal Democrat surge, supported her on this condition.

After entering Downing Street, May reaffirmed her stance. “The Prime Minister could not have been clearer,” a senior source told me. “There won’t be an early election.” Maintaining this pledge is an important part of May’s straight-talking image.

But though No.10 has wisely avoided publicly contemplating an election (unlike Gordon Brown), the question refuses to die. The Conservatives have a majority of just 12 - the smallest of any single-party government since 1974 - and, as David Cameron found, legislative defeats almost inevitably follow. May’s vow to lift the ban on new grammar schools looks to many like an unachievable task. Former education secretary Nicky Morgan and former business minister Anna Soubry are among the Tories leading the charge against the measure (which did not feature in the 2015 Conservative manifesto).  

To this problem, an early election appears to be the solution. The Tories retain a substantial opinion poll lead over Labour, the most divided opposition in recent history. An election victory would give May the mandate for new policies that she presently lacks.

“I don’t believe Theresa May wishes to hold an early election which there is evidence that the country doesn’t want and which, given the current state of the Labour Party, might be seen as opportunistic,” Nigel Lawson told today’s Times“If, however, the government were to find that it couldn’t get its legislation through the House of Commons, then a wholly new situation would arise.”

It is not only Conservatives who are keeping the possibility of an early election alive. Many Labour MPs are pleading for one in the belief that it would end Jeremy Corbyn’s leadership. An early contest would also pre-empt the boundary changes planned in 2018, which are forecast to cost the party 23 seats.

For Corbyn, the possibility of an election is a vital means of disciplining MPs. Allies also hope that the failed revolt against his leadership, which Labour members blame for the party’s unpopularity, would allow him to remain leader even if defeated.

Unlike her predecessors, May faces the obstacle of the Fixed-Term Parliaments Act (under which the next election will be on 7 May 2020). Yet it is not an insurmountable one. The legislation can be suspended with the backing of two-thirds of MPs, or through a vote of no confidence in the government. Alternatively, the act could simply be repealed or amended. Labour and the Liberal Democrats, who have demanded an early election, would struggle to resist May if she called their bluff.

To many, it simply looks like an offer too good to refuse. Which is why, however hard May swats this fly, it will keep coming back. 

George Eaton is political editor of the New Statesman.