Handling Debate by Threatening Legal Action: Anti-Vaccination Activists in Israel

Anti-vaccination activists in Israel have recently resorted to threatening critics with defamation suits over comments in online social-media discussions. This is not a new tactic: In several countries, anti-vaccination activists have brought lawsuits against critics, with very little success in actually winning cases but with a potential chilling effect on the discussion. Such a tactic is inappropriate – both because of its effect on the market of ideas and because the anti-vaccination activists themselves regularly engage in personal attacks on critics. Israeli Courts or disciplinary boards should not support or allow this attempt to silence vaccine advocates, and Israeli citizens and supporters of Israel deserve to know this tactic is used.

Using the Legal System Against Critics: Attempts from around the world

Anti-vaccination activists have sued critics in the United States, Australia, and the U.K.. The suits were almost universally weak, and most were dismissed (in some cases, those sued settled). They did, however, require time and resources from those sued, and served as a threat to other potential discussants. It is no doubt a painful experience to those sued, even if vaccine advocates are confident that they have done nothing wrong.

In the United States, for example, Dr. Paul Offit, infectious diseases doctor, scientist, vaccine inventor and a powerful and impassioned voice against the anti-vaccination movement, was sued several times for defamation, once for saying an opponent, Ms. Barbara Loe Fisher, “lies” – a suit dismissed on the grounds that such a comment, in the context of a heated debate, is not defamation. The suit is especially ironic given the language regularly aimed at Dr. Offit on the National Vaccine Information Center’s forums and Facebook page – not by Ms. Loe Fisher herself, but by those whose information and point of view is shaped, at least in part, by the materials produced by the organization she co-founded and still leads, including materials by her; see, for example, here and here.  In Australia, Meryl Dorey is the former head of the Australian Vaccination Network, an organization that, despite its name, is anti-vaccination (as found by the NSW Office of Fair Trading, which ordered the AVN to change its name for that reason. In response to the efforts of the organization “Stop the Australian Vaccination Network”, she brought an “Apprehended Violence Order”(AVO) against three of her critics – attempting, among other things, to get a court to forbid her opponents from making derogatory comments about her online. Two were thrown out of the court, and one of the critics agreed to the AVO because of the harassment involved in dealing with it, though he required that the gag order be struck out.

Similarly, Andrew Wakefield, previously a doctor in the U.K., who lost his license over ethics violations related to an article suggesting there may be a connection between vaccines and autism (a claim now debunked) sued several of his U.K. critics, including journalist Brian Deer, first in the U.K. and later in Texas. The first suit was withdrawn, with Wakefield agreeing to pay his opponents’ costs, and the second was dismissed for lack of jurisdiction and is currently under appeal. He also threatened a member of the Autism Science Foundation with a libel suit, a threat retracted after she changed some of the information on her website.

The suits generally have very weak claims under the relevant country’s law. They may, nonetheless, negatively impact the free and vigorous debate on the topic by making vaccine advocates hesitant to speak openly.

Importing the Tactic to Israel

Anti-vaccination activists in Israel have been threatening critics with legal action, including defamation suits. The tactic is mostly used in response to comments made in online forums, including Facebook pages, journal articles, and other social media avenues.

Several times, anti-vaccination activists responded to a back and forth exchange with a vaccine advocate by sending a letter threatening a defamation suit if the critic does not apologize, retract statements, and cease making them. In one case, an activist ended the matter by apologizing for his tone while keeping the facts about the vaccine clear and denouncing the legal tactics taken by the Anti-vaccination activists (http://www.tapuz.co.il/forums2008/viewmsg.aspx?forumid=2321&messageid=170684673&r=1). Other activists have also received warning letters threatening to sue them. Anti-vaccination activists’ claimed critics were accusing them of misinformation (and occasionally lies), that critics engage in ad-hominem attacks, and decried criticism of anti-vaccine tactics. Using a similar tactic, an anti-vaccination activist filed an ethics complaint against a doctor for his online comments, saying his criticisms of her were unprofessional.

While Israel does not have an equivalent to the United States’ first amendment, explicitly enshrining freedom of speech, and the Basic Act: Liberty and Human Dignity enshrines both freedom of speech and reputation, these are probably very weak claims. The vast majority of the statements attacked probably fall squarely into the truth defense or the opinion related to a matter of public concern defenses in the Prohibition of Defamation Act, 1965. In spite of the weakness, the claims can have a chilling effect on a vaccine advocate, either because that advocate is unfamiliar with the law and unaware of how weaks the claims are or because of the expenses – in time and in money – involved in a law suit, and the stress and distress associated with it, even if the plaintiff wins. Even in cases where the weakness of the cases is less obvious, the courts, in balancing freedom of speech with defense of a plaintiff’s reputation, should take into account the use of the tactic to silence debate, reject them and impose costs.

It is also appropriate to call out those tactics and highlight, publicly, that they are used and that they are inappropriate. That’s the goal of this post.

The Inappropriateness of the tactic:

The debate about vaccination is a heated debate for a lot of reasons. The health of our children is near and dear to many of us, and when one side believes vaccines save lives and the other side that vaccines endanger them, it is easy to see the other side as evil and attribute the worst of motives to them. Harsh language abounds in this debate. But the impassioned nature of the debate does not make it any less important to the public health, and the issues raised deserve to be explored fully and addressed.

By threatening lawsuits or disciplinary action against vaccine advocates for comments in public forums, anti-vaccination activists are impeding the debate. The way to deal with criticism is to answer it, not silence it; and people should be able to argue freely in social media forum without looking over their shoulder for the approaching lawyer.

Especially in a matter as important to children’s health and public health as this one, it is crucial for the arguments and the evidence to be aired openly.  Allowing anti-vaccination activists to threaten vaccine advocates can lead to problematic claims about the harms of vaccines stand unanswered. At the very least, parents deserve to hear the answers to anti-vaccine claims and the evidence supporting the safety and effectiveness of vaccines without legal threats used to silence advocates.

The tactic is even more disturbing since anti-vaccination activists themselves regularly engage in personal attacks. It cannot be pleasant for anti-vaccine activists to be accused – as is done at least in the United States – of endangering children, of lying, of misusing or misunderstanding the science, and in extreme cases of being “cranks”, quacks, or child abusers. Those terms have to hurt, and it is natural for those believing vaccines are harmful to feel under attack. But anti-vaccination activists constantly attack their critics too, as discussed by scholar Anna Kata in her article “Anti-vaccine activists, Web 2.0, and the postmodern paradigm–an overview of tactics and tropes used online by the anti-vaccination movement”. The accusation that anyone citing the benefits of vaccines is a “pharma shill,” in the pay of pharmaceutical companies, is regularly made. The motives of critics are almost always attacked, with anti-vaccination activists attributing to them financial or ulterior motives for speaking up. Anti-vaccination activists also frequently accuse their critics of lying. They engage in name-calling. If you engage in personal attacks, suing others for such attacks is problematic.

The recourse to the threat of litigation is understandable, to some degree. The anti-vaccination position is based on very little credible evidence. It is not that vaccines are always effective or completely safe; but most vaccines are highly effective, and very safe – meaning that serious adverse reactions are rare, and the scientific and medical consensus is that their benefits outweigh their risks, and that the risks of not vaccinating are substantially higher than those of vaccinating. The lack of credible evidence and the reliance of problematic, non-scientific sources make the anti-vaccine position very vulnerable to attack when the discussion is open and opponents can bring evidence. As pointed out by Kata, above, anti-vaccination sites regularly censor or remove dissenting comments. Legal suits, or the threat of them, are another way to silence opponents.

However, it is not a use courts, ethic boards – or the public – should support. Israeli courts recognized the importance of free speech very early in the state’s history (HCJ 73/53 Kol Ha’am v. Ministry of Interior, Hebrew version available here: http://www.constitution.org.il/index.php?option=com_consti_comp&class=1&mytask=view&id=271). The heart of free speech is open public debate on issues. Threatening your opponents into silence is not an appropriate substitute for having facts and evidence on your side. If that is the only way you can support your position, you deserve to lose the debate.