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Fighting Quackery: Tips for Activists

Stephen Barrett, M.D.

Many people concerned about quackery wonder what they can do about it. The crucial first step is to overcome any negative feelings about becoming involved. So before discussing techniques, let's look at the concerns faced by would-be activists.

The Fear of Libel

Almost everyone who thinks about fighting quackery experiences some fear of being sued for libel or slander. The fact is, however, that no one who understands the law and follows commonsense rules faces any significant risk. To be libelous, a statement must be defamatory, malicious, and false, and must be published. Slander is similar but applies to oral claims and requires proof of actual damages. A defamatory statement is one that accuses someone of being dishonest, criminal, or professionally incompetent. One that is malicious is done for an improper reason, either with knowledge that the statement is false or with reckless disregard for the truth. It is possible for a statement to be false but not defamatory. In any case, truth is a complete defense against libel and slander. A published statement is one that a third party sees or hears in a letter, article, book, tape recording, or other fixed medium. It is possible to defame an individual, a small group of individuals, or an organization. But one cannot defame a large class of individuals (such as "all doctors") or an entire industry.

It is never libelous to criticize an idea. Therefore, it is safe to attack ideas or to list ideas characteristic of quackery. It is legal to mention adverse facts—such as criminal convictions or dubious credentials—about people who place themselves in the public spotlight by claiming to have expert knowledge. But avoid statements about motivation (such as "He's only in it for the money") because they may be impossible to prove. The appearance of malice can usually be avoided by investigating carefully and citing reliable sources of information. Also avoid name-calling. Above all, never call anyone a name (such as "quack," "crook," or "fraud") unless you are willing to defend this claim in court.

It should be apparent from the above discussion that antiquackery actions based on facts and done for legitimate reasons cannot provide the grounds for a successful libel suit. But what about suits whose purpose is intimidation? They occur, but they are rare. There is very little chance of being sued if you avoid name-calling and do not deliver your message in an insulting manner.

To win an Internet libel suit, it is generally necessary to prove that the writer knew that the contents were false or acted with reckless disregard for the truth. The best evidence for reckless disregard is failure to modify when notified. When people threaten me, I ask them to spell out precisely what they object to and identify every word and sentence they believe has an incorrect fact. If they do not (and most do not), it is extremely unlikely that they will file suit because no court can reasonably conclude that I failed to remove a statement that has not been identified.

If they do dispute individual sentences, I carefully examine what they say and act appropriately. If there is a factual error, I will correct it. If they object that a statement is ambiguous, I will clarify it. If their situation has significantly changed, I will update as needed. If they feel that the article does not properly provide their side of a story, I might include more of what they say or invite them to write a response. Such "negotiated" modifications generally strengthen rather than weaken my original articles.

Alleged Trademark and Copyright Violations

Companies with names that are trademarked or service marked sometimes allege that use of their name in an article violates their mark and is illegal. I know of a few situations in which companies used this claim to demand removal of (truthful) information about them from a Web site. However, trademarks and service marks merely protect the right to use a name in commerce. They do not protect any right to prevent others from speaking or writing about the named entity. Groundless suits can subject the plaintiff to sanctions.

Other Concerns

Of course, if it makes you more comfortable, you can avoid criticizing individual people or organizations. Just criticize ideas with which you disagree, and provide the correct information. For additional safety, you can use the word "questionable" (e.g., "That idea is certainly questionable"), which is not defamatory.

Some people fear that taking a stand against quackery will embroil them in unpleasant public controversy. While that certainly can happen, many effective actions require no public exposure at all. For example, you can:

All these things can be done privately and without risk.

Lack of confidence may also interfere with taking action. Non-experts often feel that only experts can be effective. Even experts may hesitate when they aren't sure what action would be most effective. However, although expert knowledge is helpful, the number of people taking action is often more important than the nature of what they do. Moreover, many antiquackery actions require no expertise.

Fighting quackery can be very time-consuming. But keep in mind that many actions (such as reporting illegal ads) take only a few minutes.

Dealing with the Media

Much can be done to counter the spread of misinformation.

Dealing with Character Assassination

Some quackery promoters attempt to defend against criticism by making false and defamatory accusations. The Internet affords a convenient way to do this. I have been falsely accused of being: (a) an incompetent journalist; (b) a "stooge of the pharmaceutical industry"; (c) a chronic liar; (d) responsible for many deaths; and (e) an habitual criminal who has committed both specified and unspecified offenses. When I discover such a statement, I usually ask the person making it to stop—and most people do. If I think that the libel was spread with malicious intent, my request may be accompanied by a demand for payment of damages. If that doesn't resolve matters, I will consider filing suit.

Reporting Illegal Activities

Suspicious activities can be reported to government agencies. Some people hesitate to do this for fear they will become embroiled in legal controversy. This fear is unfounded, however. Enforcement agencies conduct their own investigations and obtain outside experts as needed. Anyone has the right to complain to any regulatory agency. If you do, please send a copy to me by e-mail or Quackwatch at Chatham Crossing Suite 108/208, 11312 US 15-501 North, Chapel Hill, NC 27517. We may be able to investigate and write about the situation. All complaints should be typewritten.

Unscrupulous practitioners may be prosecuted by state agencies, but a lawsuit by an injured victim may be more effective. The trick is to find an attorney interested in fighting quackery who will file suit on a contingency basis. Under this arrangement, the attorney gets paid a percentage of the winnings but charges no fee if the case is lost. Several of Quackwatch's legal advisors are interest in pursuing such suits. We might also may be able to help locate other suitable attorneys.

The Bottom Line

Remember that in matters of health there should be no tolerance for deception. Your effort in opposing quackery may save many people from being hurt—and may even save a life!

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This article was revised on April 4, 2008.