Australian Biologics
Australia's defamation laws make it a difficult and dangerous
process for anyone to express an opinion. The threat of huge legal
costs and crippling damages awards is often used to silence
critics, and, absurd as it might seem to anyone unfamiliar with
the assedness of the law, a judge has actually ruled that if a
defendant states that a lawsuit against him might have been
commenced to inhibit his freedom of speech then that statement is
itself defamatory and could (and has) resulted in additional
punitive damages running into hundreds of thousands of dollars.
The exchange of letters below illustrates the problem. The
supposedly defamatory article appeared in the online magazine
The
Millenium Project on July 24, 2004.
For
some time now the
Australian Competition and Consumer Commission has been
pursuing a quack called Jennie Burke and her business, Australian
Biologics, over some false and misleading advertising that the
company had been doing. Australian Biologics was (and still is) offering several
worthless and useless "diagnostic" procedures which could be used
to make people think that they had diseases or ailments which
could be treated by quacks. The action was scheduled for court
on July 19, 2004, but settlement was reached by consent during the
previous week. Here is
what the ACCC had to say in its
media release:
Australian Biologics and Ms Burke have agreed that these
tests are not diagnostic tests and the results of such tests are
not indicative of a specific medical condition.
"Where claims are made about the efficacy of medical
testing services they should have a supportable scientific
basis", ACCC Chairman, Mr Graeme Samuel, warned today. "The ACCC
is of the view that such scientific support should be of a high
standard such as articles published in peer reviewed magazines.
"This is even more important in relation to medical
claims which can have a serious impact on a person's wellbeing.
"In this case the ACCC considered it important that any
misleading impression about the services in the minds of
patients should be corrected".
Australian Biologics doesn't bother to mention
the consent decree on its web site, but just baldly says "Please
follow this link to view the press release". When (or if) someone
clicks on the link they are taken to a scan of a
newspaper
advertisement where what the ACCC says has been expressed in a
subtly different way:
There may be insufficient scientific and medical
evidence to support all of these claims about our services.
These tests are not diagnostic tests and the results of such
tests are not indicative of a specific medical condition.
Note the "may be insufficient". No maybe about
it, there is NO evidence to support the claims. So, what will
happen next? Will Australian Biologics stop testing people and
then saying that their tests show that some alternative remedy is
needed? Well, of course not! Live Blood Analysis and the other
forms of fraud practised at Australian Biologics won't be used to
diagnose "a specific medical condition", they will be used to
diagnose general medical conditions like "weakened immune system",
or "presence of toxins", or "chemical sensitivity", and it will be
business as usual for Jennie Burke and the quacks she feeds
victims to. Business may even be better, because people will have
to keep coming back to see if their vague ailments are getting any
better. And after a short time, when new names have been found for
Thermography, Live Blood Analysis and Clot Retraction Testing, I
would expect Australian Biologics (perhaps with a new company name
and structure) to be doing what it has always done, and they will
point to the advertisement and innocently state that they never
said they were not going to be offering Differential Thermal
Imaging, Erythrocytic Tomography and Hypothrombology.
Ms Burke was not happy with what I wrote, so she called in the
lawyers. Here is the first threat, with my responses interspersed:
From: "Richard Farago"
Subject: Australian Biologics & Burke
Date: Wed, 11 Aug 2004 13:03:42 +1000
Dear Peter Bowditch
We are solicitors acting for Australian Biologics Testing
Services Pty Ltd and Jennie Burke.
We refer to the website article headed "The lying quack
consents, and having signed, lies on (24/7/2004)" on your website
ratbags.com/rsoles/. On any view the article, including the
heading:
I have changed the headline on the article. I did this
immediately upon receiving your email as an indication of my
good faith in this matter.
- significantly misrepresents the settlement reached by our
clients with ACCC,and:
- and is defamatory of both Australian Biologics and Ms Burke in
numerous respects.
I quoted verbatim from the media release issued by the ACCC,
which can be seen at
http://www.accc.gov.au/content/index.phtml/itemld/524259/fromltemld/2332
and I provided a link to that document on the ACCC web site. I
have no access to the settlement documents, so I had to rely
on the content of the media release; if the wording of that
media release somehow misrepresents the settlement then that
is a matter you should take up with the ACCC. If you could
provide me with a copy of the settlement documents I would be
able to see for myself where I was mistaken, and I would then,
of course, immediately change my article to remove any
misrepresentation. It would help if you could highlight those
parts of the settlement which you believe I have
misrepresented.
Please elaborate on the alleged defamatory statements. It
is difficult to respond adequately without knowing what to
respond to.
We are instructed to advise that unless the article is
corrected (to be factually correct) or withdrawn forthwith we hold
instructions to take any necessary action to protect our clients’
reputation. This would include applying to the Supreme Court for
an injunction and/or commencing proceedings for defamation against
you without further notice.
Please advise me of the places where the article is
factually incorrect. If you are referring to my opinions about
the worth of the medical procedures offered by Australian
Biologics, then I must say that I have seen no evidence of any
scientific validity of these procedures published in
peer-reviewed literature.
A search of the Medline database (available at
http://www.ncbi.nlm.nih.gov/entrez/query.fcgi) for the
phrase "live blood analysis" results in a message saying
"Quoted phrase not found". This could be because the research
has been published too recently to have been indexed on the
date when I conducted the search (August 12, 2004), although
this seems unlikely as the ACCC action against Australian
Biologics and Ms Burke commenced some time ago and Medline is
generally quite up to date for published papers. Another
possibility is that the research has been published in
journals which are not indexed by Medline.
A search for Bolen's Clot Retraction Test produced two
citations, one from 1968 written in Italian and one from 1973
written in Russian. I do not know whether either of the
respective journal issues would be available in Australia, and
I wonder if there is some more recent research into this
technique. The comments above about inclusion in the Medline
index apply here as well.
Medline shows 5246 citations for "thermography" and it is
obvious that I cannot read all of these to see whether they
are applicable to the activities of Australian Biologics. In
any case, according to the ACCC media release, Ms Burke has
renounced the use of thermography as it was being used by
Australian Biologics.
I am prepared to change my opinion about the worth of these
procedures if I am presented with evidence. Please provide me
with journal citations, if available. I have access to the
excellent medical library at Westmead Hospital, so I should
have no trouble acquiring the articles and published papers.
On a philosophical note, it would appear that Ms Burke and
Australian Biologics have a serious dilemma. Medical
procedures fall into two broad categories - diagnosis and
treatment. As Ms Burke has apparently conceded that the
procedures mentioned above have no diagnostic value (although
the actual terms of the settlement, which I have not seen, may
not really say this) and she is not, as far as I know,
claiming that they cure or treat anything, one must ask what
benefit accrues to any client of Australian Biologics who pays
for these services. I am sure that you can advise Ms Burke of
the legal term for offering a service with no benefit in
exchange for money.
Should our client be forced to
commence legal action we will also be seeking orders that you pay
our clients’ legal costs.
As is my normal policy, your email and my response will be
published on the Millenium Project web site at the next
regular update.
Yours faithfully
Richard Farago
Langes
This was not satisfactory.
From: "Richard Farago"
Subject: Australian Biologics & Burke
Date: Tue, 17 Aug 2004 13:54:09 +1000
Dear Peter Bowditch
We refer to your email response of 12 August. It is noted that
apart from changing the heading to the article you have not
altered your website article with the result in our clients’ view
that the defamation is continuing.
Please provide us with an address for service of court
documents on you.
In my subsequent email of August 13, I offered to make any
changes to errors of fact in the article. As you may not have
received this later message, I have included a copy below.
I believe that this matter could be settled amicably if I
could see the settlement documents and the scientific evidence
for the efficacy and validity of the procedures carried out by
Australian Biologics. I intend to apply for access to this data
by making a Freedom of Information request to the ACCC, but this
should not really be necessary. If the settlement documents
exonerate Australian Biologics then I can see no reason why they
should not be proudly made public.
In any case, it says on the page headed "Enforcement
Priorities" on the ACCC web site:
Formal administrative resolutions
To resolve a possible contravention of the Act, the ACCC may
decide to accept formal administrative settlements or
undertakings from businesses, including in addition to or in
lieu of taking legal proceedings.
It usually does so pursuant to its power under the Act to
accept court-enforceable undertakings.
The ACCC does not accept offers of such undertakings unless
the undertakings are to be made public and do not contain
denial of contravention of the Act.
The ACCC may enforce such undertakings in court if they are
not honoured.
See
http://www.accc.gov.au/content/index.phtml/itemId/344494/fromItemId/37
44#h2 _141
A media release issued by the Natural Health Care Alliance
over the signatures of Dr Mark Donohoe and Ms Burke contains at
least two implications of "denial of contravention of the Act".
The ACCC were apparently unaware of the NHCA media release, but
they have been advised of it and of its implied allegations of
deliberate deception by the ACCC. You can see the NHCA release
at
http://www.australianbiologics.com.au/documents/Aust%20Bio%20-%20nhca%20press%20release.pdf
In that release it also states that "[t]he scientific
evidence filed by Australian Biologics in support of its tests
was extensive, impressive and compelling". Surely research of
this nature should be made available to the medical community,
and I look forward to receiving the relevant citations from
peer-reviewed journals, or perhaps even copies of the papers
themselves.
As I said above, this matter could be settled by making the
terms of the settlement available. If they are so supportive of
Australian Biologics' position, I can see no reason why the
settlement documents could not be made available on the
Australian Biologics web site, along with the supporting
research.
I reiterate my willingness to correct any defamatory
statements or statements of fact in my article, but I cannot
correct anything if I do not know what is wrong. If Ms Burke
cannot enumerate her specific complaints, then I am led to
assume that her threats of legal action are simply a tactic to
stifle my freedom to express an opinion. I should state here
that Ms Burke is free to say, write or publish anything she
likes about me and I guarantee that I will never take legal
action against her for defamation.
I realise that Australians have no constitutional guarantee
of freedom of speech, which is why people are free to exploit
the legal system to silence and impoverish critics. It is
ironic, then, that Australia was not only a significant
contributor to the drafting of the Universal Declaration of
Human Rights (as one of the eight countries represented on the
drafting committee), but an Australian was the President of the
UN General Assembly at the time that it was adopted. According
to the Department of Foreign Affairs and Trade
(http://www.dfat.gov.au/hr/hr_manual_2004/chp1.html), we still
support the Declaration, and I do not see where Article 19 is
excluded from that support.
As is my normal policy, your email and my response will be
published on the Millenium Project web site at the next regular
update.
A new lawyer is briefed.
27
August 2004
Dear Sir,
re: AUSTRALIAN BIOLOGICS TESTING SERVICES PTY LTD
I confirm that I am the solicitor acting for the company
referred to above and have received instructions concerning a web
site article placed by you on your ratbags.com.au site.
The contents of the article are untrue, not based on any
facts and are defamatory to my client.
The purpose of this letter is to demand that you withdraw
the article within 24 hours of receipt of this fax failing which I
have instructions to institute appropriate proceedings.
In the event that my client is forced to take any action
against you an application will be made for an order for payment
of costs by you.
Yours faithfully
W H BENNETT
Dear Mr Bennett,
RE: Australian Biologics Testing Services Pty Ltd
I received your fax today requesting that I remove certain
material from my web site at www.ratbags.com (no “.au”). I have
had previous correspondence with Mr Richard Farago of the law
firm Langes about this matter, and I have twice asked to be
given specific details of any errors of fact in what I wrote. I
have received no answer, despite my unqualified offer to correct
any error as soon as evidence of the error is provided to me. I
make the same offer to you – tell me in which way “the contents
of the article are untrue, not based on fact and are defamatory”
and I will do my best to rectify matters.
I will also repeat to you my promise not to take action for
defamation against your client, whatever is said or published
about me. As evidence of my good faith, I refer you to an
article by Eve Hillary, titled
“The Jennie Burke Story”, which
was published on more than one web site in late 2003. That
article accused me of being malicious and underhand, and also
suggested that I was an active and aware participant in one or
more conspiracies. As you can see, my commitment to the
principles of free speech extends to allowing people to make
ludicrous and unsupportable statements accusing me of criminal
activities.
I do not know why Australian Biologics Testing Services Pty
Ltd no longer appears to be using the legal services of Mr
Farago and Langes, and has chosen to use a lawyer in Queensland
rather than in New South Wales where the parties are located. I
assume it is not to bypass Section 8A of the
NSW Defamation Act 1974 (as amended by the Defamation Amendment
Act 2002), which limits the ability of corporations to sue
for defamation in New South Wales.
As is my normal policy, your fax and my response will be
published on the Millenium Project web site at the next regular
update.
Yours faithfully
Peter Bowditch
