A new escalation in the war on what governments deem to be medical mis-, dis- and mal-information appears to be under way.
To begin, a couple of caveats: First, I came to this story late, having only heard about it some 15 hours ago. As such, I have not been able to get as deep into the undergrowth as I would have liked. Plus, it is about France, a country that is not my bailiwick and whose language I am not nearly as versed in as I am in English (my mother tongue) or Spanish (my second language). In addition, at the heart of this story is draft legislation Macron’s government is determined to bulldoze into law, and I am even less versed in legal terminology than I am in the French language. Now, I’m having to put the two of them together.
That all being said, this is a story that I believe needs reporting beyond French borders, for if the French government is successful in this endeavour, it could be replicated by other governments in Europe. But there are almost certain to be gaps in my account. Even more than usual, the input of members of the Commentariat, especially those of you living in France and/or with knowledge of the inner workings of the French political and legal system, is most welcome. Now, to the story.
On Wednesday (Feb 14), France’s Chamber of Deputies passed new legislation aimed at intensifying the crackdown on what the Macron government calls “sectarian abuses-” Contained within that legislation is an article (#4) that essentially seeks to make it criminal, and punishable with jail, for any person or organisation to encourage other people to abandon or abstain from receiving medical care or treatment. Here’s the first paragraph (machine translated) of the article’s original text, which has since been tweaked (more on that later):
Incitement to abandon or abstain from following therapeutic or prophylactic medical treatment is punishable with one year of imprisonment and a fine of 15,000 euros, when this abandonment or abstention is presented as beneficial for the health of the persons targeted when in reality it is, according to medical guidelines, clearly likely to be detrimental for their physical or psychological health, taking into account the condition from which they suffer.
Second paragraph:
Incitement to adopt practices presented as having a therapeutic or prophylactic purpose for the persons concerned is punishable by the same penalties when it is clear, according to established medical guidelines, that these practices expose the persons to an immediate risk of death, or injuries likely to result in mutilation or permanent disability.
Third:
When the provocation provided for in the first two paragraphs has had an effect, the penalties are increased to three years’ imprisonment and a fine of 45,000 euros.
Fourth and last:
When these offences are committed through the written or audiovisual press, the specific provisions of the laws which govern these matters are applicable with regard to the determination of the persons responsible.
The new offence seeks to “facilitate the prosecution and repression of behaviour that could seriously harm people’s health, without prohibiting the promotion of additional practices that fall within individual freedom,” according to Vie Publique, a website produced, edited and managed by the Directorate of Legal and Administrative Information.
The ostensible goal is to address the growing proliferation of non-professional practitioners within the alternative healthcare sector. Since the pandemic, the number of lifestyle gurus, naturopaths and other health coaches has mushroomed. Many of them have found success and even a certain amount of fame on social media. According to the government, some are putting their clients’ health at risk by distancing them from the public health system.
In response, the government proposes not only to escalate its war on alternative forms of medicine but also to apply a battering ram to three basic fundamental human rights: the rights to freedom of expression, bodily autonomy and bodily integrity. And it is applying the broadest possible brush by not specifying to whom the proposed article 4 may or may not apply to. It is not hard to discern the likely main target here: criticism of the COVID-19 vaccines, as the bill’s co-sponsor, Brigitte Liso, recently all but admitted (clarification in brackets my own):
“[A]fter the COVID-19 crisis, protest movements against public institutions and doctors, and the emergence of the famous anti-vaxxers, Miviludes [a French government agency charged with observing and analysing the phenomenon of cult movements and coordinating the government response] has seen the number of cases explode, often linked precisely to the subject of well-being, care and health. It became urgent to propose a law which creates a real crime.”
That crime is to incite people not to take certain “therapeutic or prophylactic medical treatments” or “adopt certain practices presented as having a therapeutic or prophylactic” effect that in reality does not have that effect. As readers will no doubt appreciate, signing these measures into law raises a host of ethical, professional and practical concerns.
For a start, recent history is littered with scandals regarding medical treatment in which public health authorities have found to be complicit. One such case is that of Mediator, a drug produced by Servier Laboratories that is believed to have caused the death of between 1,500 and 2,000 French people. The French National Agency for Medicines and Health Products Safety (ANSM) was fined 303,000 euros for negligence.
Other examples include Levothyrox, Dépakine, Distilbene, growth hormones, Isomeride, Vioxx and Thalidomide. All of these came to light thanks to whistle-blowers or painstaking research from journalists. With the passage of the new bill, in particular article four, similar such medical and scientific alerts, whether in the mainstream press, scientific journals or in the alternative media landscape, could be met with penalties including fines and even risk of imprisonment.
Without an open, informed debate, science can not properly function, as warns the NGO Bon Sens (again, machine translated):
Constructive criticism and questioning of information are essential aspects of the scientific process , and this should be done transparently and respectfully. A scientific consensus only has value over a limited period and only if it takes into account divergent opinions. Science is an ongoing debate, and stifling this debate in the name of a false consensus amounts to killing both any progress or any corrective mechanism. It is the pluralism of ideas – and not censorship – that allows us to progress.
Faced with the abnormal and often illegal influence (known corrupt practices and conflicts of interest) of pharmaceutical laboratories in Public Health decisions, it is essential to preserve the safeguard of freedom of expression on these issues…
Remember, in the Covid-19 crisis…, the discourse of the health authorities [around vaccines] evolved from “safe and effective” toward a general recognition that vaccines ultimately did not protect against infection but only serious forms of illness and finally to the acknowledgement several months after the vaccine roll out that they could cause myocarditis and pericarditis, especially in young men,… or hemorrhagic menstrual disorders… potentially requiring hospitalisation in young women… At this time there is no certainty about the impact this may have had on their fertility.
None of this is to say that the problem of digital health charlatans does not exist (snake oil salesmen and -women have always existed and there can be no doubt that social media offers their present day ilk a lucrative market place), or that the problem is not serious. However, the government’s proposed solution is totally out of proportion to the scale of the problem. That’s not just my interpretation but also that of France’s Council of State, which acts both as legal adviser to the executive branch and as the supreme court for administrative justice.
In November, the Council concluded that the government has failed to demonstrate “the necessity for or the proportionality of these new legal offences”. It also noted that the undesirable behaviours the proposed law is supposed to tackled are “already amply covered” by existing criminal offences. What’s more, aiming to prevent the promotion of so-called “unconventional” healthcare practices in the press, on the internet and social media “constitutes an attack on the exercise of the freedom of expression, protected by Article 11 of the Declaration of 1789.”
The Council then hammered what should have been the final nail in article four’s coffin:
[The Council] also notes that the European Court of Human Rights deduces from Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms the freedom to accept or refuse specific medical treatment, or to choose another type of treatment, which is fundamental to controlling one’s own destiny and personal autonomy, in the absence of inappropriate pressure (see ECtHR, judgment no. 302/02 of June 10, 2010). Even though the legitimacy of the objective pursued by the bill is incontestable, the Council of State notes that it was not able, within the time limit set for the examination of the text, to develop a drafting given these criticisms. It therefore recommends that the provisions in question (articles four and five) are not retained.
The Macron government chose to ignore the recommendation. But when the bill was presented in the senate in December, an overwhelming majority heeded the court’s advice and rejected article 4. But when it reached the House of Deputies earlier this month, it was reinstated, only for a slim majority of deputies to vote against its inclusion this Tuesday. But even that was not enough to deter the Macron government. On Wednesday, it took it back to the floor and finally got it past. After falling at literally every hurdle, article 4 is closer than ever to becoming law.
But there is apparently good news. Before presenting the bill in the Chamber a second time, the language in article 4 was significantly watered down. The new text allegedly specifies that the incitement to abstain from following a course of treatment must be the result of sustained pressure on the patient. Also, any “incitement” will not count as an offence if it is “accompanied by clear and complete information on the potential health consequences” of taking or not taking a particular treatment, or if “the conditions in which the incitement was made do not call into question the [patient’s] free and informed consent.”
As Bon Sens notes, this will probably make it a lot harder to prove that a crime has been committed. But it is still early days. The matter could now be referred to the Constitutional Court, where hopefully sanity will prevail. But the mere fact that Article 4 is still alive is deeply troubling. This is, to my imperfect knowledge, the first time an EU member government has gone from trying to get people systematically cancelled (or “de-ranked” or de-monetised) on social media for spreading what it deems to be mis, dis- or mal-information about health (one of the purposes of the EU’s Digital Services Act) to trying to systematically criminalise their actions.