WHO attempted censorship re e-cigarettes, follow-up

by Carl V Phillips

Following my reporting on a WHO lawyer trying to censor Clive Bates’s criticism of their disinformation and bad policy recommendations about e-cigarettes, I sent a letter to the lawyer who wrote to him to try to gather more information and clarification. Two full work days in Switzerland have now passed without reply, so I am just going to publish the questions:

via: burcig@who.int

29 August 2014

Dear Mr. Burci:

I am writing with regard to a cease-and-desist letter that you addressed to Dr. [sic] Clive Bates, regarding his blog at www.clivebates.com, dated 27 August 2014.  I have written one news report on this matter, which you can find at https://antithrlies.com/2014/08/28/who-responds-to-criticism-over-e-cigarettes-with-attempted-censorship/, and am now writing a follow-up story. I believe my readers would like to know your responses to the following questions:

1. In your letter, you objected to two bits of the substance of Mr. Bates’s arguments, specifically “an assertion that WHO is de facto protecting cigarette sales” and “implying that WHO is responsible for preventable deaths”.  You characterize these as “incorrect”.  But Bates makes what must be recognized as, at least, a prima facie argument for these conclusions, while you offer no substantive reply. What is your basis for the claim that these conclusions by Bates are incorrect?

1.a. Moreover, you appear to characterize Bates’s conclusions as libelous. Is this your position? If so, is it your position that any analysis about negative effects of WHO statements and proposals are libelous? If not, what is it about these particular conclusions that constitutes libel?

2. You objected to Bates’s parody of the WHO logo, although this appears to be protected legal fair use in most jurisdictions (if you disagree with that, please feel free to comment). In doing this, you seem to be claiming that any use of the WHO logo without expressed prior permission is prohibited. You base this on a World Health Assembly resolution. Could you please explain to my readers, from your perspective as a lawyer, how such a resolution by a non-governmental entity can restrict the private action of individual authors in free countries? (this relates also to the questions under point 3)

2.a. A quick image search on the web finds thousands (presumably millions, though I cannot confirm that) of examples of entities other than WHO publishing the WHO logo. Among these are free-to-use and for-purchase graphics collections, as well as news-of-the-day stories and long-unchanged advocacy websites. Do you have any statistics about how many of these have requested or received the permission of which you speak? In particular, how many news publishers who are using the image have such permissions?

2.b. Presumably such permissions have been granted for only a tiny fraction of those publishing the images. Is it your position that all the others who are publishing those images are violating your resolution? If so, how many of them has WHO issued cease-and-desist letters to? Can you give an example of WHO issuing such a letter to an author who associated the image with positive statements about WHO, or do you only attempt to assert this claim when the author in question is writing negatively about WHO?

2.c. Alternatively, are your attempts to enforce the restrictions you assert limited to cases where someone is creating a parody version of the logo?

2.d. Following on that, as an apparent response to your treatment of Bates, a viral campaign has sprung up to create and distribute parody versions of the WHO logo. I have observed (without actively searching) hundreds of examples already in blogs, twitter and facebook posts, and social media avatars. As with Bates’s version, these are political parody (this time about the act of trying to restrict Bates’s publication itself, rather than the original content of his analysis), but the authors clearly have no greater claim to being protected political parody that Bates has. Thus, following the precedent you set with Bates, will you be sending cease-and-desist letters to the individuals who are disseminating these images? Or is such action reserved for those who parody the logo in conjunction with substantive policy arguments?

3. You assert, in your letter to Bates, that merely using the words “World Health Organization” or “WHO” without permission is a violation of your resolution. It seems that this must have been an error on your part. Are you seriously claiming that the mere act of referring by name to the organization without permission (as, for example, I am doing in this letter) is a violation of something? Please clarify that for my readers. Exactly what usage of the name are you claiming to be some sort of violation and what usage by third parties do you find acceptable?

3.a. If your answer to the previous question actually is that referring to the organization by name is some kind of violation, can you provide some statistics on how often you have issued a cease-and-desist letter about this action, which presumably occurs in print on the order of a billion times per day? Can you provide an example where you issued such an order to someone writing positively about the WHO, or do you only do that in the case of negative analyses?

4. Do you have any other observations you would like me to pass on to my readers. If you so request, I will publish verbatim any statement you wish to give.

I look forward to your replies to these questions so that I can incorporate your views into my next story.  I realize that I am sending this a few minutes after 17:00 in Geneva and so you will presumably not see it until tomorrow.[Note: I realized it was Friday after sending and sent a follow up amending this promise to wait until he had a full workday to respond; he has now had two.] Thus I will not publish my next story until late tomorrow, your time, to give you a chance to respond. I realize also that I have asked quite a few questions, so if you would like to answer some (or even none) while indicating that you intend to respond more later, I will report that.

In particular, I would like to encourage you to take what time you need to answer question 1., which is far more important than the legalistic bickering over trademarks and such. Bates argues that elements of WHO’s anti-tobacco policy are harming public health (as many other analysts, including myself, have done — though I should make clear that I am wearing my news reporter hat for present purposes and not introducing my own substantive analysis). Your declaration that this is incorrect, given how fast it came, presumably came only from the Legal Counsel office without consultation with your scientific colleagues. My readers would be interested in how your office reached that conclusion. But they would be far more interested in seeing a reply to Bates’s analysis from your analysts. I would be more than happy to present that, at whatever length you so desire.

Thank you for your attention.

Carl V Phillips, PhD – CASAA Scientific Director

(end quoted material)

I think the questions and lack of reply speak for themselves. If I get a reply, I will certainly post about it.

I would like to take the opportunity to point some implications of the point in that last paragraph for my readers. The outpouring of parody that resulted from WHO trying to censor Bates’s parody was as amusing as it was inevitable. It spread the substantive messages far more widely than would have occurred without it. But it is wise to be wary of the common tactic of people in power, trying to deflect attention away from their crimes and onto the cops or, equivalently, the lawyers.

A common pattern in street protests is for officials to abuse their power and send in the cops, who can generally be counted on to abuse their power and unlawfully interfere with the protest. A frequent result is that the protesters come to focus their hostility toward the cops, diluting their focus on the issue (which generally has nothing to do with the cops, though cases like Ferguson are obviously an exception), which is exactly what the puppet masters want. Fortunately, the UN has the good sense not to give WHO access to their troops and black helicopters, but lawyers tend to serve the same purpose — making unlawful threats to distract protesters attention away from the issues. If we put too much emphasis on their attempts to censor per se, it risks overshadowing the content of what they seek to censor.

Again, this is not to say that such attention is not useful. It makes a compelling narrative which attracts the attention of those who might glaze over when reading the original policy analysis. It rallies the troops. It provides some desperately needed catharsis. But after it does those, it needs to slip back into being the footnote that it is.

Do not fear for Bates. I suspect they are little more likely to respond to his follow-up than they were mine, or to say another threatening word to him. They cannot possibly be stupid enough to not have learned their lesson from this. If ever forced to answer for it (though I cannot imagine by whom), they can easily play it off as the misguided unilateral action of one person (which it might genuinely be).

WHO’s threat of censorship is not a serious threat. Their plans to push governments (particularly those in poor countries that beholden to them) into making policies that will kill millions and harm hundreds of millions are a serious threat.