Who’s afraid of the big bad wolf?
Boiron sue completely innocent blogger because he dared to tell the truth about homoeopathy!!!!!11!!11! Can it possibly be true? Well, no, not exactly, and one thing this case will serve to demonstrate well is the fact that you can’t say much without facts, and that it’s easy to lose sight of them in all of the fuss. To any who don’t know what I’m talking about, here is a summary:
- Blogger Samuele Riva posted an article about homoeopathy, including a picture of a particular product made by Boiron
- Boiron sent a letter (in Italian) to the internet provider in question demanding the removal of the article, etc. (Several translations of the letter appeared to show Boiron taking exception to a number of points in the blog.)
Already, comparisons between this case, and that of BCA vs. Singh are being bandied about, and the picture of Samuele Riva as David to Boiron’s Goliath is forming rapidly, but I think that the whole situation deserves further scrutiny before Riva is painted as a hero of modern science. As the letter is originally in Italian, some of the translations have been a little shaky (several machine translations have been doing the rounds), and as the legal wording is likely to be quite important in such a case, it’s difficult to understand the spirit of the letter without being able to read it, fluently, in its original Italian (and in the context of Italian law). As I can do neither, I can only look to the translations, as others have been doing.
A selection of the points Boiron seem to be complaining about are as follows:
- The unauthorised inclusion of a picture of their product
- The caption associated with the picture (the total nothing that according to Boiron is the cure for influenza… diluted 200C does not contain any molecule of active ingredient!)
- A further article, including a picture, and caption associated with the picture (Seriously damages the intelligence (of the person buying it))
The letter also contains some other points, such as demands for removal of internet services, denying Riva’s access to his blog, etc. All in all, it’s the kind of letter that I’m sure anyone would be intimidated to receive, and I have little doubt that this was the intention, and while I recognise that Riva has a right to state his opinion, there are things he could have done differently that may have prevented this letter arriving in the first place.
As unpalatable as it may be, the simple fact of the matter is that people tend to be rather lax about copyright on the internet. We take images from websites without crediting them or asking the owner, and often use them repeatedly without asking the owner. This is as wrong as it would be to copy a chapter from a book and claim it as your own. Copyright law means that you cannot just take the first image you find and use it with impunity – if that image belongs to someone else, and you haven’t asked their permission to use it, and they haven’t stated that it’s there for the taking, then you are breaking the law by using it. In this respect, Boiron do have the right to request that their image be removed, as I suspect they were not asked for permission to use it, and were certainly unlikely to give permission given the context in which it would be placed.
The next major point is to do with the caption of the image – “the total nothing that according to Boiron is the cure for influenza… diluted 200C does not contain any molecule of active ingredient!” We know that one part of this sentence is fact – a 200C dilution can not include a single molecule of the active ingredient. This has been tested and proven repeatedly, and it is an established fact. In this respect, Boiron really have no complaint, though I would welcome the situation in which they were legally obliged to provide proof that this statement was untrue, should it arise. The first part of the sentence, though, is a bit more tricky. The author states that Boiron say Oscillococcinum is the cure for influenza, and if this were true, it would be both laughable and sad. A thorough scouring of their promotional media, however, has failed to turn up a single instance of Boiron stating that Oscillococcinum is a cure for influenza – the strongest claim they make is that is is used “to reduce the duration and severity of flu-like symptoms”. They don’t claim to cure the flu, and it’s quite likely that this is a conscious decision made as a result of legal advice given to them – quite simply, they’re not stupid, and they haven’t come to be the largest manufacturer of homoeopathic products in the world without learning a thing or two. Whether or not their employees believe in the efficacy of the product, their literature is carefully crafted to avoid the mention of an outright cure, and instead employs the same terminology as often found advertising other products with questionable scientific background (e.g. may help to improve x, etc.). By putting words in their mouth, Riva left himself open to criticism and sanctions – to say that they claim it’s a flu cure is, factually speaking, untrue.
The last point I’ve highlighted refers to another use of a product picture, and the caption accompanying it – Seriously damages the intelligence (of the person buying it). This is a comment which, I believe, falls into a bit of a gray area. While I make absolutely no pretence at being a lawyer, I’d imagine that Boiron will argue that this is a serious slight against their product and a claim about a side-effect which doesn’t exist. In this, and only this, respect, this is similar to BCA vs. Singh, because it can possibly be argued that this is use of opinion, etc. on the part of Riva. For a better discussion of where this particular argument may go, I suggest you look up the various rulings for the BCA/Singh case, as they explain it far better than I could.
Let me be absolutely clear – I don’t like what Boiron are doing, and I think it is a disproportionate response, but to cast them as the big bad wolf without any consideration for the blog itself is neither rational, nor critical, nor sensible. Libel laws are, in many countries, downright punishing, and sadly, open to abuse, but here’s the rub – if we want the law to change, to better protect bloggers and authors and anyone else who wishes to share an opinion, then we also have to play nice with the existing laws. Direct criticism of a company or their product is a difficult thing to do, and there is a fine, often poorly defined, line between valid criticism and outright libel. You can be critical of a company or product if you have evidence to back up that criticism, but you cannot invent evidence to support a criticism. You can share your opinion of a product or company, but you can’t put words in their mouth. In short, you can’t libel a company simply because you don’t believe in their product, and you can’t use their copyrighted imagery to help you libel them. I have sympathy for the position that Riva now finds himself in, but I also hope that others take this as a cautionary tale and learn from the mistakes that were made. Check your facts, and then check them again; don’t make claims that you do not have evidence to support, and above all, write responsibly.