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.
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.
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.