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Thoughts on the validity of Boiron's threat

Pharmaceutical firm Boiron threatened an Italian blogger over posts in which he criticized "Oscillococcinum", a product which they very carefully and precisely market as treating flu-like symptoms. Naturally skeptics have been outraged, but I can't help feeling the story is a bit more complex than people are making out.

It took me some time to find reliable and complete translations of the offending posts and Boiron's threat (all of which were in Italian). Now, I'm not here to defend Boiron - they sell magic pills and spent 16 times more on marketing than research last time I checked (http://www.guardian.co.uk/science/blog/2010/feb/04/homeopathic-association-evidence-commons-committee) - but looking more closely at the claim, I think the blogger involved may have made mistakes.

Boiron complain about two passages in their letter, one of which reads:

“the total nothing that according to Boiron is the cure for influenza… diluted 200C does not contain any molecule of active ingredient!"

I can't find (and I've asked on Twitter as well) any material in which Boiron specifically claim their remedy is a cure for influenza. All the current marketing material I've seen describes it pretty carefully as a 'treatment' for the symptoms of flu (or 'flu-like symptoms'), which I suspect is language they've chosen very careful.

Maybe I've missed something, and someone can point me to a place where they do claim to cure flu in the comments; but if not then it looks like the blogger was wrong to say that they claim this. Had I written this in the Guardian, and received the same complaint, then it's quite likely that in the absence of finding this 'smoking gun', we would have - rightly - had to make an apology.

To be clear, I don't like Boiron or their behaviour. I think this action is disproportionate and the proposed sanctions daft. I think their letter contains a load of bunkum regarding homeopathy and that the action is probably self-defeating for them - the last thing a homeopathy manufacturer needs is more public scrutiny. But it's important to be need to be very careful how they present the facts. It's easy - and I've done it myself many times - to fall into the trap of assuming dishonesty or reading between the lines, and starting writing arguments your evidence can't support.
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Eleonora S.'s profile photoAndrea Scarpetta's profile photoJen Keane's profile photoRoy Grubb's profile photo
33 comments
 
I think you're right - this case is being painted to be something that it appears not to be once you scratch the surface. They're not suing him because he dissed homoeopathy, they're suing him because he used copyrighted pictures without permission, because he made a comment about their drugs lowering people's intelligence, and because he said that they made claims which they (maybe) didn't.

I too dislike Boiron, and the way they have behaved, but I think it's very important to not present this as a totally black and white, good vs. evil situation with the poor innocent blogger as David to Boiron's Goliath. The fact that you think homoeopathy is nonsense doesn't mean that you can target specific companies without facts. It's one of the reasons I thought long and hard about how best to write my post about Dettol's stuff.
 
Ah thank you - I see your point now Martin; Initial reports suggested he was being sued because he claimed O-silly-scam didn't work; I wasn't aware he'd gone onto make claims as stupid as homeopathy itself. Of course this is the antithesis of critical thinking and I fully see your point now.

That said, if he meant "makes the person buying it appear stupid in the eyes of anyone who've even done an iota of research on the subject" then I'd agree wholeheartedly!
 
Hi, I'm Samuele, the blogzero.it owner.
I don't get your point.
Boiron can sue me because they wrote "symptoms of flu" and I wrote "flu"?
Following this rule they should sue half Internet.
And look at web shops:
http://tinyurl.com/shopboiron1
http://tinyurl.com/shopboiron3

They talk about "Flu Remedy"...

Anyway, do you really think that a big multinational company can sue everybody this way?
Let's focus on the real issue...
 
Samuele

As I've said in the post above, I don't like the action they're taking, and you have my sympathy; but it seems like you've said something about them that isn't true (the sites you've linked to don't say that their remedy can cure flu), and if that's really the case then unfortunately you're in wrong - however much it sucks and however disproportionate their response may be.

There is a wider issue about big companies suing bloggers for libel, I agree, but it cuts both ways - if we want better libel laws to protect bloggers, then bloggers also need to accept the responsibility that comes with that.
 
+Jo Brodie I think I came across that while doing a bit of reading on the topic. Mine is here: http://www.zenbuffy.com/2011/07/lava-bacteria-and-germy-soap-pumps/

+Samuele R. I agree with +Martin Robbins - I don't like what they're doing, but there were mistakes in the blog which opened the door for them to write such a letter. I hope that it goes no further than the letter, because I don't wish that hassle on anyone, but I also hope that you learn from the experience, and that you take what you can from it to improve your writing.

I've blogged about this myself, expanding on some of the points I've made in various tweets and comments about it - http://www.zenbuffy.com/2011/08/whos-afraid-of-the-big-bad-wolf/
 
"Seriously damages the intelligence" it's a joke, in Italy we found similar sentences on cigarettes (Seriously damages the health)... it's ironic, maybe you don't get it because of translation.

About the Oscillo image and the small difference between "flu" and "flu symptoms"... you're splitting hairs, I think you're not looking to the bigger picture:
can we let a big company threaten all websites (even the tiniest one, 100 visitors/day, like mine) only because they have one copyrighted image and some small not-completely-perfect sentences?
If yes, we can close Internet.

(sorry for my bad English)
 
Re: intelligence damaging, I saw that it was a joke, and took it in that context. However, comments made by Simon Singh also intended as jocular did end up forming part of the BCA case against him. I don't think it's right, and as you can see in my blog, I did say that this complaint is a grey area. Re: flu and flu-symptoms, and treat/cure, it's not just hair splitting. There is a significant legal difference between claiming to treat some symptoms that may be associated with flu, and claiming to cure flu, and I have no doubt that Boiron are aware of this difference, which is why they don't use the word cure.

Re: one copyrighted image, it doesn't matter if you only get a few visits a day, and if it's only one image. If they own the copyright, and want to complain about usage outside of copyright, then they can. Just because many people do something doesn't mean that it's right - just ask those who were caught up in the looting during the London riots if "everyone else did it" is working as a defence for them...

As I said, I don't think the position you're in is nice, and I do think their response is disproportionate, but I do also think that there are errors in the original blog that you should probably be aware of to prevent future problems.
 
@ +Samuele R. - What Jen said. Its not splitting hairs - there's a huge difference between claiming 'product X cures the flu' and claiming that 'product X helps with symptoms'. It's not a question of your sentences being 'not-completely-perfect' - you've made claims about them that may be untrue.

I completely agree that it's not nice to see a big company threaten a blogger, but they're perfectly entitled to complain if it turns out that you've misrepresented them, or used their copyrighted materials. I'm all for protecting bloggers against legal chill, but bloggers also have a responsibility to make sure what they post about people is accurate in the first place. It works both ways.
 
Out of curiosity, what is the legal value of the term "remedy"?
 
+Eleonora S. Not sure of an exact legal definition, but OED says: "A means of counteracting a source of misery or difficulty, in early use especially sin, evil, or a vice; a means of relieving a bad situation or avoiding a problem." Note the emphasis on relief, etc. but no mention of cure. I expect that, legally, remedy and cure would be treated differently. After all, it's likely that the reason they advertise remedy rather than cure is to comply with advertising law, which would prevent anything not proven scientifically to cure something from being advertised as a cure.
 
The full Oxford English Dictionary gives as the first meaning of remedy: " A cure for a disease or other disorder of body or mind; any medicine or treatment which alleviates pain and promotes restoration to health."

The web shop pages that Samuele R. linked to say "Oscillococcinum Flu Remedy", so in normal English usage, they would appear to be claiming to 'cure' flu or 'promote restoration to health' after flu. I don't believe there is a question of 'legal' value of 'remedy', rather of what is claimed and would be understood by readers.

The web shops are not official Boiron pages, however, and as observed above, the Boiron site uses the much more careful wording.

The copyright claim and 'seriously damages intelligence' claim are another matter.
 
Is it normal to throw a copyright claim in with a libel threat?
 
+Roy Grubb Curious - I wonder is it a difference in versions? I pulled mine from OED online, as it's what I have access to here. You are correct though, in that Boiron are much more careful about what they call their homoeopathic preparations.

+Andrew Taylor Don't know that there is a "normal" here :) I suppose they just figured that a letter including all problems would save time and money, and probably accomplish the goal of getting rid of the posts effectively.
 
I just thought it seems a bit... petulant. Like somehow a serious company would decide what they objected to and say so, whereas someone who throws everything at you at once has probably come up with the objections to justify the aim — to silence a critic rather than to protect their IP or dispute the specific libel they allege. Which I imagine they have, but you don't want to look like you have. Not in a civil court.
 
My OED is the full CDROM version, Jen.
 
Interesting discrepancy so, especially given the current context of this discussion :) Does it have a year/version number to otherwise date it?
 
Re: Roy's definition, it still doesn't help. The OED definition posted doesn't define remedy as 'cure', 'cure' is just one possible meaning. Others include 'alleviates pain', which would fit neatly with their marketing approach of 'tackling symptoms'.
 
To me this highlights that the advertising regulations should be even more sophisticated: if there is room for a discrepancy and for double meanings to be exploited, it's not good enough. It needs something more like the traffic-light system, so that it is really evident whether a remedy's efficacy is scientifically proven.

I'm sure you can find a dictionary that claims that the Italian cura can mean "cure" but also "treatment" in a much more general way. Although in this context I still believe the translation of +Samuele R. 's words you attach is accurate [because the word is used as a verb], the fact that there is an ambiguity of interpretation in the first place is significant.

(Talking as an absolute layman on all of this, more a reflection on the power of marketing really, and inadequacy of advertising laws)
 
With respect to the "copyright" images - I'm not sure where "fair use" comes in. You ARE allowed to quote copyright material as long as you don't quote too much of it, not for profit, and for the purposes of e.g. criticism or satire. See e.g. http://en.wikipedia.org/wiki/Fair_use .

Italian law no doubt differs from US and UK law - but Italy's part of the EU, so it would have to have some similarities. It may be that usage of the images, unauthorised, to illustrate an a satirical or critical article may well (and IANAL) be legal.
 
Normally when you ask to remove the copyrighted content, you contact the site owner and failing that you contact the provider and/or the domain registrar. The "contacts" link is available on the upper right part of the screen. Asking the provider to remove the site is a disproportionate answer.
 
I don't disagree +Gareth Jax , I would be shocked to receive a letter like this as the first point of contact re: a copyright claim. I'm not sticking up for Boiron or completely agreeing with their actions, I'm just playing devil's advocate and pointing out that the whole thing is a little more complicated than "completely innocent blogger is sued by horrible demon corporation with no soul" :)
 
+Gareth Jax +Jen "Zenbuffy" Keane The removal of the website is in consequence of the alleged defamation, the copyright claim is a "warning" not to publish unauthorised images of their logos etc.
 
Re: +Jen "Zenbuffy" Keane yes, I can't work out why we've been stuck on the 'in favour of Boiron' list either. Considering my original point was that +Samuele R. was sloppy in the claims he made, his response of claiming we're 'in favour of Boiron' is not exactly disproving my case.
 
+Jen "Zenbuffy" Keane i agree, that's why i've asked to amend the position of the sites inside the list published on Samuele's post. +Eleonora S. i think you haven't read the scanned pages, i don't know if you read italian, but Boiron asked the provider to block Samuele from accessing the blog: that was a wrong move in my opinion and it was probably written by some over-zealous lawyer who doesn't know anything about the net.
 
+Gareth Jax I do read Italian and read the scanned pages (re-read them prior to writing post, but only in Italian). The threat of legal action under article 595 and consequent request to ban Samuele refers to the defamation claim.
The "diffida" from the use of unauthorised logos or product images means that if the blog provider publish them again there will be consequences (probably legal action).

In either case I agree with you that it is a disproportionate request (maybe fuelled by recent debates / new laws over copyright and online content removal in Italy), but for me the immediate threat of legal action to the blog provider is for defamation, not for copyright.
 
Hi +Martin Robbins and +Jen "Zenbuffy" Keane , your links are under "almost proBoiron" because your position seems to be "who cares about him, he was using one copyrighted image and he talks about flu instead of 'symptoms of flu'".
But if I've misunderstood I ask sorry to both of you!
:-)
 
+Eleonora S. , Boiron refers to "defamatory" sentences like the ironical caption under Oscillo picture and like my opinions against homeopathy.

They never refer to "cure" or "treat", this is why I was talking about "splitting hairs" in my previous comments here...
 
Re: +Samuele R. Yes they do - they refer specifically to your caption that includes the words "the total nothing that according to Boiron is the cure for influenza" .

The point we're both making here is that - as harsh as we think Boiron are being - you do also seem to be in the wrong here. If bloggers want protection from libel threats, they also need to accept responsibility for dealing with mistakes in their writing.
 
Good news, Boiron yesterday has sent an email telling me that they will not proceed to court (email is online)
Now I can move on, finally :-)
Bye
 
+Samuele R. I saw the update on the blog. I am glad that you don't have to go to court, but please don't forget the advice that you have received here (and elsewhere). Continue to blog, but be mindful of libel and the law in general - small imperfect sentences might seem like nothing to you, but as you have now seen, they can open up a very unpleasant door into court if anyone takes exception to them.
 
Yeah +Jen "Zenbuffy" Keane , I will be more careful in the future... I was a lone blogger with a few reader, being sued for one inappropriate sentence... it would have been ridiculous
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