Jeni Barnett on MMR – is copyright law right for this case?

by scotslawstudent

Dr Ben Goldacre has received a legal challenge for a recording he put on his site. The recording was a 44 minute extract from Jeni Barnett’s 1pm to 4pm radio phone in chat show broadcast in January 2009 (as far as I know, it’s not clear when the broadcast in question actually took place – I think the 27th (last Friday of January) but I have heard other dates) by LBC, a London based commercial radio station owned by Global Audio. The recording, now available on a variety of sites around the Internet, is not the best listening; it’s very biased and does not constitute much in the way of medical advice.

This being said though, the issue that the publishers have taken umbrage to is not the content of the broadcast but is the fact that such a substantial chunk has been placed on Goldacre’s site (44 minutes is roughly one quarter of the 3 hour broadcast) and Goldacre has received a lawyer’s letter telling him to remove it or face legal action. This step of having the critical site ordered to remove the content is very unusual and what makes this situation so incredibly controversial – this is being regarded as censorship by solicitor. By challenging on copyright grounds they have shifted the angle from the disagreement and negative criticism that Dr Goldacre has heaped upon Ms Barnett and onto an economic loss that they have suffered. The site itself is designed as a forum to critique poor logic and science in the media and the extract was originally posted as the soundtrack to a tongue in cheek game of “vaccination canard bingo” in which listeners were to count the number of urban myths about vaccines that were mentioned and he offered that anyone who could think of one that wasn’t mentioned would be given a signed copy of his book. To me that is clear satire and parody, although according to Jeni Barnett’s personal blog that is sarcasm and criticises “the Bad Scientist” for “making another person feel small” (I personally suggest that Ms Barnett is not acting like a professional broadcaster in this situation but that is another issue).

However, the copyright suit is based on a very reasonable point that requires explanation:

Why is the extract so very long?

Ben Goldacre has explained his reasoning himself and I think that quoting his words is the best way to convey it:

But thirdly, there is a question of the basic tools you need to illustrate a point. The clip I posted was, to my mind, hideous and unremitting: it went on for so long.

In fact it was so long, so unrelenting, and so misinformed that I really couldn’t express to you how hideous it was. If I tried, without the audio, you might think I was exaggerating. You might think that I was biased, that I was misrepresenting Jeni’s demeanour and views in this broadcast, that LBC and their parent company Global Audio are living up to the standards of basic responsibility which we might reasonably hold them to, as they shepherd Jeni’s views and explanations into our cars and kitchens. You might think that I was quoting Jeni out of context, cherrypicking only the ridiculous moments from an otherwise sensible, proportionate and responsible piece of public rhetoric.”

Dr Goldacre claims to have posted the long extract as it was the only way to convey the content which he took issue to without claims of bias or selective editing – in other words fair use of the extract for purposes of review. I think that’s a very carefully thought out reason to put the 44.2 megabyte file on his site and would be accepted without question in an academic debate in which you live and die by the rule “you cite your sources or people can’t trust you” .


The MMR issue is widely reported and I do not think that I need to repeat that here – I would like to point out that the few remaining advocates of the MMR-autism link run private autism treatment clinics and, with respect, have a massive commercial incentive to claim that anything at all causes autism. There is a clear potential for a conflict of interest in their testimony. Every other research project has failed to repeat their results. This does not help the millions of parents of young children who are determined to take the right course of action for their charges if they are barraged with negative media coverage of what appears to be, and always was, a false result by a now discredited scientist.

I personally feel that MMR is safe and this is not just because I have received it and I am still healthy because that’s not proof. It is possible for some individuals to smoke and use sun beds without contracting cancer even though nearly everyone would say there’s a definite link – some people turn out to be resistant or even just lucky.  It’s impossible currently to work out who will and who won’t be affected in advance just as it is with who will catch measles in an outbreak. Instead I feel the MMR vaccine is safe because I have read studies saying so which are much larger in scale, better equipped and more methodical than the one that tells me it’s not. To use a legal analogy I feel that the studies which have held MMR to be innocent are more authoritative and hold higher precedential value than those that dissent (not to mention that there are many more of them).

Jeni Barnett’s comments

Despite this there are still some seriously dubious statements made in the 44 minutes available on wikileaks including, and I feel this is the most horrifying single offence, reading out an unattributed email from an anonymous listener claiming that the MMR vaccine, as well as causing autism, contains cancer causing chemicals. This kind of comment should never be made on a public broadcast radio station by anyone whose name doesn’t start with “Professor” and has an incredible amount of valid and accepted research to back him up. Saying that children’s vaccines cause cancer is a sure fire way to terrify parents and this should have been as well received as Jonathan Ross and Russell Brand’s Radio 2 phonecall.

Apart from this she also shows undue bias towards callers who subscribe to alternative medicine (her first caller introduces herself as a young mother who looked into alternative medicine to keep her children safe but later admits that she is a homeopath and is therefore actually speaking as a businesswoman with the incentive against other forms of medicine that entails) and is dismissive of other opinions – I have included some of the transcript at the bottom of this post to show what I mean – and finally, when talking to a nurse, accuses her and the Government of scaring people in order to make money before apparently hanging up on the caller without allowing her a response.

The situation is already fairly murky due to a sketchy method of reporting in the UK press – for example, unsolicited quotes that were negative to MMR were sent to non-science section reporters in newspapers and, apparently deliberately, kept away from reporters who had the science background to look at the source critically. That is like sending skewed sports results to a business columnist so that they can report your angle and it reeks of unethical practice and quite a worrying trust shown by reporters.  Jeni Barnett’s comments will pour yet more oil on these troubled waters.

LBC’s reaction

The company who own the rights to the audio have an undeniable right to control (and profit from if they should wish) the distribution of their property and so they have sent a letter to Goldacre with a strongly worded request to remove the extract from his site. They ominously chose to “reserve [their] rights” in relation to him so it’s possible that, even though Goldacre has followed their instructions, there could still be a court appearance in his future. I think that is unlikely in all honesty but cannot be certain either way. While I’m prepared to call this a lawyer being careful to leave their client’s options open, the idea that he could be sued after complying with a letter just seems unfair – the copyright breach is closed now, surely? It wasn’t Goldacre who made the recording, he simply posted it on his site and he has since removed it. In more extreme cases, ones where there is a substantial loss incurred by the copyright holders which lasts after the party has complied with the letter, it makes sense to be able still go after them for the economic loss you have suffered. This is good in cases of libel, for example.

But this case does not fall under libel rules – there was no comment made by Goldacre which affects Jeni Barnett as a professional actress or radio presenter and she will not suffer an economic loss as a result of this blog post by Goldacre. She is, particularly, not a medical professional whose expert and professional reputation is hurt. He said she is misinformed; she accepted it in a blog post and called him a bad scientist in return. At this point I would advise Ms Barnett that a libel action, although within her rights, would appear petty and she would need to show that Goldacre has actually caused her some kind of loss (apart from saying she was wrong).

The extract in itself is from a single show and that should not cut into the radio station’s bottom line since individual shows (and especially not individual 44 minute sections) are not sold, only access to the back catalogue as a whole. For that reason I do not think there is much of a loss caused by this comment made by Goldacre.

Therefore that the letter still retains the right to procede with other action will probably not require that Dr Goldacre needs to start looking for representation – it is just a line in a threatening (as the client is paying for it to be) lawyer’s letter.

However Dr Goldacre is wise to remove the recording from his site simply because Global Audio is a half billion pound company and are simply much too big to stand up to when all you have is an opinion that someone is wrong. Goldacre should not stop thinking she is wrong but at the same time should not rely on that to convince a judge.

Copyright as a silencer?

But should he have to? Is this the right time to use, as Cory Doctrow put it, the “tank mine” that is copyright law if what they appear to really want is to hide the criticism of this particular broadcaster?  The difference in the two parties’ financial positions could only be more stark if Goldacre lived in a cardboard box, he’s an author. Copyright law was invisioned in a time when the only people capable of breaching a publisher’s copyright were equally massive publishing companies with their own mechancial press and the resources to send lawyers to defend their position.

Thanks to the computing revolution individuals today, with only the money they earn through their own jobs, are capable of disseminating copyrighted material on a scale of readership which may exceed that achieved by nefarious publishers in the past but without the resources of a large company to mount a legal defence. This imbalance in the position of debaters is potentially damaging to the quality of debates they feel they can safely produce. The quality of debate someone can have with the words “I am not an expert, this is what I have observed* is limited when book writing, letters after their name wearing members of the scientific community receive legal threats when they criticise. This is a terrible precendent to be setting and has horrible ramifications in any situation but particularly so in the case of public health (if the ratio of immunised to non immunised people in a society drops below 83-96% herd immunity breaks down and that society starts to be at risk from measles epidemics and that threatens us all – parts of London, in particular, are already far past this point and may only be a matter of time).


Jeni Barnett has said on her blog that she wants a debate on the topic – she also says that “acting is all about honesty, if you can fake that you can fake anything” but I digress – and she appears to have got one.  I would have preferred, of course, that the debate had already taken place and was on that fateful radio show.

I believe strongly that people are allowed to have opinions but should never treat them as better than empirically established, peer reviewed facts. This seems obvious to me at least but very few people are really willing to have their strongly held beliefs overruled because they can’t back up their hunch with evidence, especially on the spur of the moment, and that is something that is simply part of human nature but it doesn’t make it anymore credible to use anecdotes and gut feeling against 10 and 20 year long clinical trials and to behave as if they are on equal footings.

As for Ms Barnett, I think it is acceptable to say she is a non-medically qualified person with a strong preference for alternative medicine but she is all that as well as having a microphone, a radio show and a powerful position in the heart in of London and for that she should be careful to stay to the facts and to report both sides of any discussion, regardless of her own bias, as soon as she gets behind her seat in the recording booth and to avoid unduly covering one point of view which will scare a sizeable portion of her listeners.

Ofcom does expect her to, after all.

* Emphasis made by Jeni Barnett on air – I took this emphasis to mean that this was her backing for her statements which made her dimissing, muting or talking over other people’s evidence that much more galling:

John: Afternoon Jeni. I’m not a medical expert, but I listen to the radio and I listen to LBC – I listen to your competitors quite a lot. Every single medical expert that you’ve ever had on LBC, always said MMRs are a good thing and all the evidence against them have been refuted.

JB: …yeah.

John: So?

JB: Does that make it right??

John: Well, yeah! I pretty much think it does, actually! Yeah!

JB: How come?

John: Well, you sound like… when you say ‘My four kids, this ladies’ four kids’ – you sound like one of those people who say ‘My Aunty Flo lived to be a hundred and ten and she smoked a hundred cigarettes a day’! There’s always going to be someone, but in general…

JB: Uh, but wasn’t Aunty Flo ALLOWED to do that?

NB: I completely agree with Dr Goldacre’s decision to post the audio, would his suggestion that Ms Barnett was out of order have had nearly the same weight in text form as it did when the listener could hear her, before telling people that fresh air and star jumps will keep their children safe, ask the microphone “what’s so wrong with childhood illness?” but it cannot be categorically stated enough that this is my personal opinion (which is why it’s not in the body text) as opposed to my legal one and I am not a judge.