by Carl V Phillips

My previous post should have sat at the top of the page for the rest of the day, or two, because it is important (so please read it), but this is breaking news that I wanted to report on.

As many readers know, the World Health Organization (WHO) came out this week with an attack on e-cigarettes which presages them trying to pressure governments into acting against e-cigarettes. CASAA has not tried to address this in detail because (a) most of what we would have to say is generic observations of how many of the claims are wrong and proposed policies are bad, and we have already done that in other contexts, and (b) it seemed a reasonable division of labor to leave this to European supporters of tobacco harm reduction because we had to deal with the CDC and FDA this week. One of the Europeans who took on the WHO was Clive Bates, including with these posts. In response to Bates’s challenge to them, WHO did not pause to consider that they might be wrong and doing harm, nor did they try to defend themselves substantively. Instead, they threatened legal action against Bates.

Bates’s position, shared by many, is that with this document and associated public statements, WHO is denigrating and spreading misinformation about e-cigarettes, which will tend to scare smokers away from using them to quit smoking and cause smokers who have quit to return to smoking. In addition, the government policies endorsed in the document would tend to make e-cigarettes less available and less attractive compared to smoking, further reducing switching from the high-risk product to the low-risk one. The net result would be more smoking and thus more disease and death.

Part of WHO’s objection was to a parody of their logo that Bates posted, which (at the time of this writing) he has replaced with a text graphic that reads “Graphic removed at the request of the Legal Counsel of the World Health Organization”. But the characterization of “request” is not exactly correct. In the letter sent to Bates by the WHO (which we have obtained a copy of), they threatened to “refer[] the matter to the relevant authorities in the United Kingdom” (where Bates is based) if he did not comply with removing his content. They asserted that he was “using the name and emblem of the World Health Organization (WHO)…in an unauthorized, misleading and libellous manner”.

That accusation is quite troubling from the perspective of a free exchange of ideas. There are very brief substantive claims about particular statements (see below), but notice that the accusation says that the mere act of using the name of WHO when criticizing WHO is unauthorized, misleading and/or libellous. It boggles the mind that WHO is effectively claiming that no one can criticize them by name. Yet they make that clear as they continue, “The use of the WHO emblem and name, and any abbreviation thereof, is reserved for the official purposes of the Organization in accordance with a resolution adopted at the first World Health Assembly (resolution WHA1.133). Furthermore, the aforementioned resolution expressly prohibits the use of the WHO name and emblem in any matter without the prior authorization of the WHO Director-General. According to our records, WHO has not granted you permission to use its name or emblem for any purpose.”

I am no international lawyer, but it is difficult to imagine that this resolution is enforceable anywhere outside of WHO headquarters, even in the UK with its relatively poor freedom-of-the-press rules. It seems safe to assume that >99% of those reporting on the actions of WHO (including this blog) have no such prior authorization, nor would ever consider asking for it. There are, of course, various laws and treaties that prevent someone from making unauthorized use of a corporate name in ways that implies that he is speaking behalf of the corporation or the statements are endorsed by the corporation. Obviously, those do not apply in this case.

Presumably it was the parody of their logo that triggered this response, but that does not change the fact that WHO is specifically claiming that criticizing them by name is not allowed.

Graphic political parody, including parodies based on corporate logos, is also protected free speech in the USA and most of the civilized world. As is news reporting. To be able to properly understand this news story, it is useful to see the graphic that originally appeared on Bates’s pages:

It should be immediately clear to the reader that this logo is intended as parody — political commentary, specifically — and thus is widely protected free speech (though I do not know exactly what the laws are in the UK). Superimposing a skull-and-crossbones on a corporate logo might be legitimately criticized on the basis of it being cliché. But the reason it is allowed to occur to the point of cliché is that it is clearly political commentary and parody, and is not misleading. There is no chance of any reader genuinely confusing this graphic with the real WHO logo or believing that it implies that WHO in any way endorsed the posts.

The parody reflects the substantive content of Bates’s reporting, in which he predicts that WHO’s proposed policy “would do more harm to health than it prevents” and the misinformation itself will also cause more people to smoke. He cites a specific example of someone being persuaded to resume smoking as a result of misinformation about e-cigarettes.

WHO’s accusations about Bates’s actual statements are (in total) that it is misleading and libellous to “imply[] that WHO is responsible for preventable deaths” and to “assert[] that WHO is de facto protecting cigarette sales.” The latter appears to refer to the title of the second of the above-linked posts, which derives from a statement in the post. The former refers to Bates’s main thesis. It would certainly be possible for WHO or anyone else to dispute Bates’s arguments. They did not do so. Instead, they asserted without further elaboration that these statements were “incorrect and unfounded information” (the latter word being a rather strange choice), as well as “misleading and libellous”.

The letter demanded Bates “take immediate action to remove the disfigured and misrepresented WHO emblem and related material from your website” (emphasis added). Given the accusations about the core substantive arguments Bates was making, as well as the repeated references to the use of WHO’s name, this seems to imply they are demanding removal of all of Bates’s analyses of WHO actions, and all other mentions of WHO, on his blog. At the time of this writing, Bates has complied with the demand about the logo but has apparently not removed any prose. If this is not sufficient to appease WHO, what comes next could be very interesting indeed.

It is always troubling when someone attempts to use indefensible, but still intimidating, threats of defamation, trademark, or copyright violations to censor legitimate criticism. It becomes more troubling when such threats are made by a large and wealthy entity against an individual journalist, researcher, or policy analyst. But when the threats come from a quasi-governmental organization that is supposed to be representing the welfare of the people of the world, and it is aimed at someone who is seriously questioning whether they are fulfilling that mission — and furthermore, they insist that the mere act of criticizing them by name is a violation — it reaches a higher level still. If the WHO is so defenseless against criticism that this is the only way they can respond to it, perhaps it is time to replace them with people and an organization that are more suited to their role.