The Japanese Supreme Court upheld the lower court’s decision which held a former Novartis employee and the company innocent of unlawful “advertisement” of its product through academic publications. It was a significant setback for the prosecution and the Ministry of Health. The core legal issue of the case is over the admissibility of publication of academic articles based on false data, which obviously raises freedom of speech of concern.
The Japanese courts have not been the robust guardian of freedom of speech. In fact, the Japanese courts routinely condemned publications of false claims for popular medicines without any difficulty. What is the rationale this time? Judge Yamaguchi, a conservative criminal law expert, gives the answer in his opinion. He opines that the academic publications were no different from mainstream academic discussions and should not be considered the subject of criminal prosecution, even though they were false, edited by a Novartis employer (to be used for promotion) and were retracted. He seems to presume that there is an academic circle of elite scientists who are responsible for advancement of scientific knowledge, and they are above the prosecution.
If Yamaguchi expects a better science to emerge from the ruling, he has been betrayed so far.