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Protect researchers from the perils of public health advocacy

Public health advocates who criticise industries for promoting harmful forms of consumption – the alcohol, food, pharmaceutical, tobacco and gambling industries – increasingly find themselves facing legal…

The expense of defending defamation actions deters many public health researchers from speaking out. Emilio Kuffer

Public health advocates who criticise industries for promoting harmful forms of consumption – the alcohol, food, pharmaceutical, tobacco and gambling industries – increasingly find themselves facing legal action for defamation or other forms of legal harassment.

In 2009, Peter Miller and 50 colleagues (including myself) published a letter in the Medical Journal of Australia (MJA) stating that we would not accept research funding from the organisation Drinkwise, because we believed that the alcohol industry had undue influence over its research agenda.

Drinkwise was established by the alcohol industry and part funded by the Howard government to educate Australians to “drink wisely”. Many in the public health field were sceptical of its intentions because half of its board came from the alcohol industry and several of the community representatives on the board had worked for or with the alcohol industry.

The alcohol industry has a much bigger budget than most researchers and universities. Josh Staiger

Although the MJA gave the chair of the Drinkwise board the right of reply, signatories received a personal letter stating that Drinkwise Board members felt they had been “defamed” by the letter. No legal action was forthcoming but the letter was taken as a warning that we could be sued if they continued to criticise Drinkwise.

This kind of threat is not uncommon. The Melbourne public health physician Ken Harvey has been sued for damages by two companies for making a formal complaint to the Therapeutic Goods Administration (TGA) in which he said that that there was no evidence to support the health claims made for their products.

Neither are these are isolated events. I know colleagues who have received threats of legal action for defamation from industry advocacy groups and “independent” consultants who work for these industries. In another case, senior alcohol industry officials wrote to the vice chancellor of a researcher’s university attacking his personal integrity and professionalism.

It’s easy to say that researchers should refuse to bow to these attempts at intimidation. Unfortunately, it can be expensive to defend defamation actions brought by litigants with deep pockets. Nor can researchers depend on universities to provide legal defence in these cases.

While universities encourage “community engagement” by their staff, they don’t always provide legal assistance to deal with threats arising from public comment. I discovered this two decades ago when threatened with a suit for defamation for comments made on the ABC about the regulation of psychologists. The university’s lawyers declined to represent me because I was not speaking in “an official university capacity”, even though I was commenting on a matter of public importance within my area of expertise.

Universities don’t always provide researchers with legal assistance to deal with threats arising from public comment. Jeff Pearce

These issues should be of concern to lawyers. Defamation specialists could provide pro bono legal advice to researchers threatened in these ways. Public advocacy lawyers could examine the extent to which these threats occur and consider ways to combat the use of defamation and other laws by vested interests to silence public debate.

Legal remedies worth exploring include laws such as the one passed by the ACT parliament in 2008 imposing civil penalties on companies that attempt to use lawsuits to stop individuals and groups from voicing their opinions. Such laws may include actions, where possible, to seek protective cost orders.

Free public discussion is essential for good public health policy. Public debate is already heavily weighted against public health interests by the greater access that wealthy alcohol, pharmaceutical and complementary medicine industries have to advertising, and utilise the mass media and specialist legal advice. We need to prevent threats of legal action from being used to silence public health advocates and strangle public policy debate.

Join the conversation

22 Comments sorted by

  1. Gavin Moodie
    Gavin Moodie is a Friend of The Conversation.

    Adjunct professor at RMIT University

    It is true that companies threaten legal action, including for defamation, to try to silence critics. This is known as strategic lawsuits against public participation (SLAPP) and SLAPP writs have been used by the woodchipping industry in Tasmania and notoriously by McDonalds in the UK.

    I think a lunchtime seminar on defamation law would be enough to expose the hollowness of most of these threats.

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    1. Bruce Moon

      Bystander!

      In reply to Gavin Moodie

      Gavin

      The threats may be hollow, however, once receiving a SLAPP, the potential loss of one's assets via the courts is sufficient to silence.

      The earliest and most artful users of SLAPP's were the Qld Gov't ministers of the Bjelke era. Then, the SLAPP's were typically used against environmentalists baulking at the gov't mismanagement of the state's environmental treasures.

      Cheers

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  2. rory robertson
    rory robertson is a Friend of The Conversation.

    former fattie

    Wayne and Gavin, I agree that researchers' ability to speak fully and frankly about matters of public health needs to be protected. My question is: who in the science and university communities is going to step-up and work to protect everyday people from researchers who publish - and then refuse to correct - false scientific conclusions that have become a menace to public health? I have a particularly glaring example in mind: http://christopherjoye.blogspot.com.au/2012/07/journo-skewers-university-of-sydney.html and #6 at http://www.australianparadox.com/

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  3. Rosemary Stanton

    Nutritionist & Visiting Fellow at University of New South Wales

    I've had experience of people trying to sue me - and also the reverse.

    In one case where I was accused of defamation (after giving my opinion of a shonky product in an interview on TV), my professional insurance (from a UK group that included defence against defamation) failed me because they decided I had given correct advice and I was only covered for giving wrong advice!

    I decided to fight the case myself - which cost me in legal fees. I contacted 32 people and organisations who were prepared…

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  4. Lisa Hodgson

    Director

    Hi Wayne,

    thanks for coming out on this important subject. I applaud your and your colleagues objection to obvious self interest in scientific research around safe alcohol consumption. Similar objection must surely be brought in relation to pharmaceutical companies providing their own research, and biotech companies doing the same.

    You've provided an explanation as to why so many honourable scientists appear compromised on so many issues. Your solution requires urgent attention if we are to progress as an open and honest society.

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    1. Joel Mayes

      Bicycle Mechanic

      In reply to Lisa Hodgson

      You forgot to mention "alternative" medicine researchers and providers, these are the people who are quick to fire off a libel or defamation suite when they are criticised.

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    2. Sue Ieraci

      Public hospital clinician

      In reply to Lisa Hodgson

      Lisa - holding a conflict of interest doesn't mean that a certain piece of research is "wrong" or biased - it means that it has the potential to be so.

      There are many sources of error and bias in research - the vast majority are unintentional and due to poor technique rather than any ethical issues. Fraud is rare.

      Published research gets its real peer review when an informed community analyses the methods and results. Scientific papers are critiqued all the time without any allegations of libel or defamation.

      Pharmaceutical companies have to "provide their own research" - that's what R&D is. The important factor is that the funding is declared, and the data and analysis are openly available for critique. This shoudl go for all research - whether in mainstream medicine or the so-called "alternatives".

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    3. Lisa Hodgson

      Director

      In reply to Sue Ieraci

      Quite right Sue. I see no reason to trust pharmaceutical 'interests' anymore or less than I would alcohol or tobacco interests.

      Bias stems right from the beginning of research in formulating the research question. When the hypothesis starts with drug X is better than placebo, already you have a bias in question, design and analysis.

      Fraud is not rare, it is becoming far too common. Shall I provide you with links?

      Another important factor in self-interested research is that the drug or invention (in the case of biotech) is available to independent scientists to repeat and verify research with declared conflict of interest. Unfortunately this is all too often NOT the case. In fact in terms of GMOs major patent holders have historically done all they could to prevent independent verification/falsification.

      Of course this would apply to ALL science.

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    4. Sue Ieraci

      Public hospital clinician

      In reply to Lisa Hodgson

      Lisa, you say "When the hypothesis starts with drug X is better than placebo, already you have a bias in question, design and analysis."

      The research question here is "Does Drug X provide a benefit over placebo?" or, the null hypothesis is that "Drug X is no better than placebo."

      No matter what links you provide, you need to realise that the cases of true fraud need to be seen in the context of the enormous numbers of research projects being conducted all the time. The majority are not from…

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  5. John Davidson

    Retired engineer

    This is part of the broader problem of "legal bullying". Legal bullying may consist of of someone with the resources and will threatening to take someone to court if they refuse to do what the bully wants. It can also consist of the bully fobbing off reasonable demands with the "well take me to court" answer. an answer given in the knowledge that you haven't the resources or will to take the bully to court. In both cases, the uncertainty re the length and cost of the court proceedings makes…

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  6. Stephen Riden

    Research and Information Manager, DSICA

    Isn't this article based on the false premise that each and every advocate is a pure of heart, truth-telling paragon of virture, and never, ever even slightly might be exaggerating the case, or leave out inconvenient facts or quite plausable altenative interpretations?

    Neither advocates or researchers (and they are often the same thing under today's public health paradigm) become saints just because they are studying controversial industries.

    Also, self-interest and academics' conflict of interest are not just financial - careers and public profile should also be included as considerations.

    What Professor Hall suggests is complete legal protection for one group of people - public health advocates - to say or write whatever they like, irrespective of the facts - about another group - certain industries and the companies within. No doubt that group of industries would grow over time.

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  7. Laurie Willberg

    Journalist

    Public health advocacy is not the job of "researchers". It's the job of public health officials to sort through research to determine how it may be used to shape public health policy. Public health officials are responsible to government which is in turn responsible to the electorate.
    In a civil society, one group or class of individuals is not exempt from the application of law nor should they be.
    It is up to elected representatives to debate public policy based on input from their constituents. This is how a democratic system operates.

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    1. Margo Saunders

      Public Health Policy Researcher

      In reply to Laurie Willberg

      Although I don't agree with exactly what you've said, you have put your finger on something that has been increasingly bothering me: it is increasingly the case that researchers -- including academic ones whom we would like to trust as being objective in terms of their inquiries, investigations, reporting and interpretation of findings -- are becoming outspoken advocates. This can result in their work being 'tainted' by their particular biases.
      There certainly is a role for public health advocacy…

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    2. Sue Ieraci

      Public hospital clinician

      In reply to Margo Saunders

      Margo - how do your comments apply to the case of Ken Harvey, who is repeatedly being threatened for exposing scam treatments? SHould the companies that market and sell these things not be challenged? If not public health activists, who should take action?

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    3. Margo Saunders

      Public Health Policy Researcher

      In reply to Sue Ieraci

      The distinction between 'academic researcher' and 'public health activist' has become blurred, and the question is whether this is necessarily a good thing. Of course, individuals, companies, industries, policies and programs which contribute to adverse health outcomes should be challenged -- it then becomes a question of who and how (especially now that we are unable to rely on active, informed, investigative journalism). Simply publishing findings and explaining their implications is not what I…

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    4. Sue Ieraci

      Public hospital clinician

      In reply to Margo Saunders

      Margo - I don't think anyone would disagree that we could benefit from more, and more potent, public interest advocacy groups. But I have two questions:

      1. Who would advise these groups; and
      2. In the absence of these groups, should people who detect fraud just keep quiet and wait, or should they take action like Ken Harvey did?

      I find it hard to understand how it can be seen as a conflict of interest to complain to an authority which will be the arbiter. If the complaint is vexatious or just incorrect, the arbiter will so judge. If there is a vexatious complaint, the complainant should be held accountable.

      Do you see evidence that regulators act differently if the complainant is an academic "trading on their credentials"?

      The paradox to me is this: if a person with credentials isnt the one to make the complaint, does that mean that someone without credentials is a preferable complainant?

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    5. Margo Saunders

      Public Health Policy Researcher

      In reply to Sue Ieraci

      I don't think I am talking so much about making complaints to a regulator, although I believe that this is still more effective if it is done via an organisation, which also has the benefit of not 'exposing' the individual. And yes, in my experience, regulators do act differently depending on who is making the complaint. I have been directed to do so myself.
      My experience in NGO advocacy and in government departments tells me this: if I were a politician or a senior bureaucrat, what would impress…

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    6. Sue Ieraci

      Public hospital clinician

      In reply to Margo Saunders

      So, Margo, which advocacy group would you think is most appropriate to make a complaint about fraudulent medication claims? What clinician would be more credible than a public health expert here?

      Do you think it is ethical to assess the complaint differently depending on complainant rather than assessing it on its merits?

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  8. Mike Daube

    Professor of Health Policy at Curtin University

    One purpose of threats such as those described by Wayne in his excellent and important piece is presumably to distract public health researchers and advocates - just as tobacco industry FOI requests to the Federal Department of Health and Ageing take up the time of public servants who might otherwise be working to reduce smoking.

    The Drinkwise episode he describes is also not an isolated incident.

    Some years ago, when I was critical of Drinkwise at an Australian Drug Foundation conference in…

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  9. dave copeland

    david copeland

    Dr. Geoffrey Kabat

    Anyone who takes the (passive smoking) science seriously and wants to assess its strengths and weaknesses is viewed as a threat to be neutralized. This situation has given rise to extraordinary attacks on the integrity of established scientists whose only documentable fault is to report findings in a peer-reviewed journal.
    http://tctactics.org/index.php/Critical_Scientists

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  10. dave copeland

    david copeland

    Dr. Michael Siegel

    "This is McCarthyism in action. Quelling debate. Stifling opposition. Expelling and blacklisting anyone who dares express dissent. No wonder the tobacco control movement has gone off the deep end in its fanaticism. Anyone who tries to stop it knows that they will be censored or expelled. You have no choice but to go along with the groupthink."

    http://tctactics.org/index.php/Critical_Scientists

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  11. Cris Kerr

    Volunteer Community Health Researcher, Advocate for the value of Patient Testimony

    I am an uncredentialled volunteer community health researcher and advocate for the value of patient testimony. My experience has been that being 'uncredentialled' equates to being 'invisible' in terms of due consideration of research or proposals.

    Submission to Australia's Strategic Review of National
    Health & Medical Research 2012:

    Submission No. 296 - Cris Kerr, Case Health
    http://mckeonreview.org.au/sub/296_Cris_Kerr_Case_Health.pdf

    On the plus side, whilst you remain invisible, you don't get threatened with legal action :-)

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