Quackery

'Vaccine Misinformation for Profit: Conspiratorial Wellness Influencers and the Monetization of Alternative Health' by Rachel E Moran, Anna L Swan and Taylor Agajanian in (2024) 18 International Journal of Communication 1202–1224 comments 

Influencers in the alternative health and wellness space have leveraged the affordances of social media to make posting misleading content and misinformation a lucrative endeavor. This research project extends knowledge of antivaccine misinformation through an examination of the role of social media influencers and the parasocial relationships they build with audiences in the spread of vaccine-opposed messaging and how this information is leveraged for profit. Through digital ethnography and media immersion, we focus on three prominent antivaccine influencers—the Wellness Homesteader, Conspiratorial Fashionista, and Evangelical Mother—analyzing how they build community on Instagram, promote antivaccination messaging, and weaponize this information to direct their followers to buy products and services. 

Misinformation is an immensely profitable endeavor. Amplifiers of misinformation have found routes to monetize their digital content by using it to direct their online followers to purchase the products and services they endorse. Far-right news and opinion site Infowars, for instance, made $165 million between 2015 and 2018, selling health supplements and merchandise through the Infowars store (Vaillancourt, 2022) advertised during Alex Jones’ talk radio shows, often attached to misinformation narratives or in the context of discussing conspiracy theories (Locker, 2017). This project explores how misinformation is monetized, focusing specifically on how influencers within the antivaccination movement use social media to amplify misleading information about vaccinations and leverage this information for profit. 

Although vaccine misinformation far predates COVID-19, its scale and prominence have increased immensely because of the pandemic (Wardle & Singerman, 2021). Extant research has identified a range of vaccine-related misinformation, including spurious claims that the vaccine contains microchips (Virality Project, 2022) and broader attacks on the safety, efficacy, and necessity of COVID-19 vaccines (Brennen, Simon, Howard, & Nielsen, 2020). Further research has explored the dominant sources of vaccine misinformation, identifying the spread of vaccine opposition from antivaccine influencers (Center for Countering Digital Hate [CCDH], 2021)—in addition to a top-down amplification of misinformation from political elites (Enders, Uscinski, Klofstad, & Stoler, 2020). 

Alternative health and wellness influencers were a cause for concern during the COVID-19 pandemic because of their ties to misinformation and vaccine hesitancy (Maloy & De Vynck, 2021). Leveraging a lack of trust in Western institutionalized medicine, some wellness influencers have pushed hyperindividualistic frameworks that dispute the need for collective vaccine uptake in favor of natural wellness (Kale, 2021). Furthermore, the sociotechnical savvy of wellness influencers affords them significant reach for their content. A report from the CCDH (2020) noted that the top 12 antivaccine influencers gained 877,000 followers between December and June 2020 (p. 5). Beyond numerical reach, the parasocial relationships built via social media exacerbate the impact of vaccine misinformation. Moreover, influencers well-versed in the economic and technical infrastructures of social media are well positioned to financially benefit from the misinformation they share. 

This article opens by discussing research on the spread of vaccine-related misinformation on social media and within the health and wellness space, as well as the role of parasocial relationships in this spread. By highlighting the role of gender in both the saliency of health-related misinformation and the monetization of wellness content, we offer insight into the gendered dimension of misinformation spread. We then present our methods, drawing on a digital ethnography of three wellness influencers on Instagram. Ultimately, our analysis reveals how influencers take advantage of the platform’s sociotechnical infrastructure and attempt to profit from misinformation while normalizing antivaccine sentiment and conspiratorial rhetoric.

Platforms

'Platform Administrative Law A Research Agenda' by Moritz Schramm comments 

Scholarship of online platforms is at a crossroads. Everyone agrees that platforms must be reformed. Many agree that platforms should respect certain guarantees known primary from public law like transparency, accountability, and reason-giving. However, how to install public law-inspired structures like rights protection, review, accountability, deference, hierarchy and discretion, participation, etc. in hyper capitalist organizations remains a mystery. This article proposes a new conceptual and, by extension, normative framework to analyze and improve platform reform: Platform Administrative Law (PAL). Thinking about platform power through the lens of PAL serves two functions. On the one hand, PAL describes the bureaucratic reality of digital domination by actors like Meta, X, Amazon, or Alibaba. PAL clears the view on the mélange of normative material and its infrastructural consequences governing the power relationship between platform and individual. It allows us to take stock of the distinctive norms, institutions, and infrastructural set ups enabling and constraining platform power. In that sense, PAL originates-paradoxically-from private actors. On the other hand, PAL draws from 'classic' administrative law to offer normative guidance to incrementally infuse 'good administration' into platforms. Many challenges platforms face can be thought of as textbook examples of administrative law. Maintaining efficiency while paying attention to individual cases, acting proportionate despite resource constraints, acting in fundamental rights-sensitive fields, implementing external accountability feedback, maintaining coherence in ruleenforcement, etc.-all this is administrative law. Thereby, PAL describes the imperfect and fragmented administrative regimes of platforms and draws inspiration from 'classic' administrative law for platforms. Consequentially, PAL helps reestablishing the supremacy of legitimate rules over technicity and profit in the context of platforms. 

'Power Plays in Global Internet Governance' (GigaNet: Global Internet Governance Academic Network, Annual Symposium 2015) by Madeline Carr comments 

The multi-stakeholder model of global Internet governance has emerged as the dominant approach to navigating the complex set of interests, agendas and implications of our increasing dependence on this technology. Protecting this model of global governance in this context has been referred to by the US and EU as ‘essential’ to the future of the Internet. Bringing together actors from the private sector, the public sector and also civil society, multi-stakeholder Internet governance is not only regarded by many as the best way to organise around this particular issue, it is also held up as a potential template for the management of other ‘post-state’ issues. However, as a consequence of its normative aspirations to representation and power sharing, the multi-stakeholder approach to global Internet governance has received little critical attention. This paper examines the issues of legitimacy and accountability with regard to the ‘rule-makers’ and ‘rule-takers’ in this model and finds that it can also function as a mechanism for the reinforcement of existing power dynamics.

Pseudolaw

In Tweed Byron Local Aboriginal Land Council v Williams [2024] NSWSC 868 the Court states 

The Land Council, a body corporate constituted under s 50 of the Aboriginal Land Rights Act 1983 (NSW), is the registered proprietor of land at Banora Point where it understood the defendants were living when it brought these proceedings in January 2024. It finally sought orders for possession of the property against only Mr Williams, having sought and been given leave at the hearing to discontinue the proceedings against the other defendants, who it understands no longer live at the property and who have not been served or active in the proceedings. 

Mr Williams filed a defence, by which he accepted that the Land Council was the registered proprietor, but pleaded amongst other things, that he had occupied the land with the consent of two unnamed directors of the Land Council, with the result that there had been no trespass; that persons who had requested him to leave the property had no authority to do so; that the Land Council has not held a lawful meeting since 2011 to provide it with powers of eviction; that the persons who had sent him correspondence the Council relied on had not authority to serve it; and that the Council has ten vacant houses which it has not let under any program. 

Mr Williams also filed an affidavit, but it did not go into evidence. That was because by email sent to the Court the night before the hearing, Mr Williams advised that he would not be appearing and that he was no longer the Caretaker on behalf of the Minjungbal Tribal Discretionary Trust. He also there indicated that he was a “Protected Man under the protection of the Original Sovereign Tribal Federation Discretionary Trust as recognised and Apostilled by the Crown in the Right of THE COMMONWEALTH OF AUSTRALIA on the 6th Day of May 2019”, as well as “protected as a Minjungbal Sovereign Tribal Man under the Minjungbal Tribal Discretionary Trust as recognised and Apostilled by the Crown in the Right of THE COMMONWEALTH OF AUSTRALIA ON THE 5TH Day of December 2019”. The result of Mr William’s advice was that the hearing proceeded ex parte, the orders which the Land Council sought not being opposed, it understanding that despite his advice, Mr Williams was still residing at the property. ... 

The evidence established that Mr Williams had retained Leverage Solicitors, who had informed the Council’s solicitors in August 2024 that while it was accepted, “for the purpose of land registration”, that the property vested in the Council, it was not accepted that “the Land Council officially owns this property”. That was contradictory and did not accord with Mr Williams’ defence, where he admitted that the Council was the registered owner of the property. 

Leverage Solicitors also claimed that while the land does vest in the Council, it holds the land on trust for local Aboriginal nations, tribes and clans and that it was thus a trustee, not a beneficiary; that it had a fiduciary duty to them and had to act in their best interests, not that of the Council; that the property fell within the lands of the Minjungbal people; that it had been uninhabited for more than 6 years; that Mr Williams was occupying the property and using it for Minjungbal nation purposes; that the beneficial owners of the land were the Minjungbal people; and that the Council should bring proceedings in this Court, if it wished to evict Mr Williams. No basis for those claims was there or later revealed and they were not accepted by the Council. 

Mr Williams’ right to occupy the property without the Council’s approval being so disputed and he continuing to refuse to vacate, it brought these possession proceedings, the local police having declined to assist it, without an order of this Court. 

In other communications it was claimed that Mr Williams was the trustee of the Minjungbal Tribal Trust, which had established a “Cultural Archiving Centre” at the property, which was to be used for specified purposes, including respite for tribal and clan elders who needed a short-term place to stay and would like their cultural stories archived. 

The Council’s solicitors advised in November 2023 that Mr Williams did not have its permission to enter or remain on the property and gave notice that he was to immediately vacate and not re-enter the property. Proceedings under the Inclosed Lands Protection Act 1901 (NSW) were also threatened, but have not been pursued. Nor were damages for trespass finally pressed. 

I am satisfied that, on all of the evidence, the Council has established a basis for the possession orders that it pursued. 

The Act provides for the constitution of a Local Aboriginal Land Council for each Local Aboriginal Land Council area: s 50(1). Each Council is a body corporate: s 50(2). The corporate name of each Local Aboriginal Land Council is “Local Aboriginal Land Council”, preceded by the name of the area of the Council: s 50(3). .. 

The members of the Local Aboriginal Land Council for a Local Aboriginal Land Council area are the adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for that area: s 53. Qualification for membership is further dealt with in s 54, by reference to residence or other association. On the unchallenged evidence of Ms Williams, Mr Williams is not a member. 

Councils are required to have Boards consisting of between 5 and 10 members, with part 2 of schedule 3 of the Act regulating their operation. Their functions are to direct and control the Council’s affairs in accordance with the Act and the regulations and consistently with the Council’s community, land and business plan: s 62. Board members must be elected at every fourth annual meeting of the Council: s 63. Chairpersons are elected from amongst the Board members: s 64. The Board may delegate functions to its chief executive officer: s 72. That Ms Williams was the Land Council’s chief executive officer was also not in issue. Her evidence was unchallenged and must be accepted. Provision is also made for the Minister to take steps to deal with Councils which cease to function: s 233. The New South Wales Aboriginal Land Council may also make a performance improvement order in respect of any Local Aboriginal Land Council, if it reasonably considers that action must be taken to improve the Local Council’s performance: s 234A. 

Mr Williams’ email suggested that the Council had mismanaged the property, which was being investigated by the Registrar, Premier and other investigative bodies, but there is no evidence of such investigations being pursued. It also suggested that the Minjungbal Tribal Discretionary Trust had replaced the “Parish Trust” or any other purported trust over Minjungbal Tribal Lands, as well as assets within the Minjungbal Tribal Estate with effect from the 5th day of December 2019. 

But neither Mr William’s defence, his email communication, nor that of his solicitors establish that the property is part of Minjungbal Tribal Lands; that the Minjungbal Tribal Discretionary Trust exists; that the property is held by that trust, or that he is one of its beneficiaries. That all required more than statements of belief. 

It was not suggested that this claimed trust was one established by the Council. As registered owner of the property, it could have conceivably put the property into a trust, so long as that accorded with the provisions of the Act which regulated its operations, but there is no evidence that it had done so. 

Nor is there any evidence that any other person or body had any interest in the property, which would have empowered them to establish any trust which could have had any effect on the Council’s legal ownership of the property, or created any equitable interest in it. Even if the claimed trust existed and it was established that Mr Williams was a beneficiary, that would not entitle him to possession of the property, as RS Hulme J explained in Aboriginal Housing Co Ltd v Munro [2015] NSWSC 1155. A “trespass can be committed even if the entry is made under a mistake of fact and even though the person entering honestly believes that the land is his own or that he has a right of entry on it”: Barker v The Queen (1983) 153 CLR 338 at 370; [1983] HCA 18. Further, a beneficiary of a trust has no right to possession: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] 1 NSWLR 510 at 519. 

It follows that even if it were accepted that the Minjungbal nation exists, as Mr Williams clearly believes, that it has a legal existence separate from the persons who may constitute it, let alone any legal interest in the property of which the Council is the registered proprietor, which it could have exercised to create any trust which could affect that property, so as to entitle Mr Williams to occupy it, that had to be established by evidence. 

That was not attempted by Mr Williams. Even if the possibility of such an interest could be accepted, of which I am not persuaded, Mr Williams not having appeared to defend the Council’s case, its existence cannot be established by the mere assertion of Mr William’s understanding and beliefs.

Identity Crime

In Re Terei (No 3) [2024] VSC 423 Incerti J has addressed a bail revocation application, stating that 

Ms Terei is likely to be arrested and interviewed in relation to a charge of perverting the course of justice. This offence relates to Ms Terei claiming Aboriginality from her maternal line, knowing this to be untrue, during bail applications in this Court on 30 May and 17 June 2024 ... 

[6] There is in many ways nothing remarkable about this course of events. Ms Terei is a vulnerable person who presents to the Court with complex mental health issues, a history of family violence, serious drug abuse and a significant history of interface with the justice system. Her historical offending does not involve crimes of violence. Ms Terei was always going to pose a risk on bail, but it was my view that the risk could be ameliorated with strict bail conditions.\ 

[7] The unusual and troubling aspect is the allegation that Ms Terei has attempted to pervert the course of justice by lying about her Aboriginality. 

[8] Section 3 of the Bail Act 1977 (Vic) relevantly provides that: Aboriginal person means a person who – (a) is descended from an Aboriginal or Torres Strait Islander; and (b) identifies as an Aboriginal or Torres Strait Islander; and (c) is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Island community; 

[9] Before this Court there was evidence by way of affidavit that Ms Terei inherited her Aboriginality from her maternal line and that her mother passed away when she was three years old. This evidence was obtained on instructions from Ms Terei. 

[10] In most cases, and certainly in my experience, proof of Aboriginality has not been an issue and is ordinarily not challenged. Evidence of a person’s Aboriginality is provided by affidavit as occurred in this case. This is an appropriate manner in which evidence of this kind is to be provided to the Court for the purpose of a bail application. I can see no reason why this should change or that an applicant or their legal representative should be required to do anything more than set out the basis of a person’s Aboriginality as was done in this case. The circumstances of this case are unique and allegedly involve blatant deception about an individual’s Aboriginality. ... 

[12] The evidence before me, arising from enquiries made following comments during these calls, is that Ms Terei’s mother is from New Zealand, is not Aboriginal and still lives in New Zealand. It is therefore alleged that Ms Terei claimed her Aboriginality from her maternal line, knowing it was untrue, ‘in order to have the Court consider s 3A of the Bail Act when she was not entitled to do so’. While this is not the time to determine the current allegations made against Ms Terei, the Arunta phone recordings provide strong evidence that Ms Terei is not an Aboriginal person and sought to gain some benefit in the bail application on the basis of identifying as an Aboriginal person.

TRIPS

'A Regulatory Governance Perspective on IP and Access to Medicines–A Fresh Look Into the TRIPS Agreement' by G Ghidini and R Piselli in (2024) GRUR International comments 

As concerns the relationship between the Global South and the developed countries, the TRIPS Agreement provides a robust protection of IP. This might result in a weaker protection of fundamental rights, such as health, in those countries that do not possess the necessary know-how and industrial capacity to manufacture essential medicines. The recent Decision adopted at the 12th WTO Ministerial Conference provides the opportunity to focus again on the topic and deal with the issue of the clash between IP and the national interests of the least developed countries. Instead of addressing the problem by looking at the well-known flexibilities/inflexibilities of the Agreement, this paper proposes a different methodological approach that builds on the flourishing literature on regulatory governance. To this end, a multi-dimensional regulatory approach is suggested that simultaneously exploits a matrix of normative, market-based and cooperative instruments. While we wait for a more structural normative reform, a similar perspective not only proves to be useful from a theoretical perspective, but could also contribute to shedding a new light on the TRIPS Agreement.

Devices

'Innovating Preemption or Preempting Innovation? ' by David A Simon, Carmel Shachar and I Glenn Cohen comments 

Medical devices diagnose disease, prolong life, and improve health. But when defective, they can injure, disable, and kill. To successfully sue manufacturers for injuries caused by medical devices, patients must overcome the defense that federal law preempts, or displaces, state law claims. The Supreme Court has provided a framework for answering this question with respect to most devices. However, it has never confronted how it would apply the framework to an innovative but growing class of devices-de novo devices-that may incorporate novel technologies like artificial intelligence and machine learning. This Essay tries to answer this question as a predictive and normative matter. From a predictive perspective, the Essay argues that the Court's increasingly textualist orientation suggests it will reject preemption of claims against manufacturers of de novo devices, though the result is not certain. From a normative perspective, the Essay argues that allowing claims against de novo device manufacturers forces risk internalization, provides a regulatory failsafe for innovative technology, and preserves innovation without sacrificing patient health.