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Keeping your skepticism out of court
This is a version of a talk I gave to SkeptiCamp Sydney in April 2011.
Has anyone here ever been sued?
I have, and it's not a pleasant experience.
Many of you here will be familiar with the action brought against Simon Singh by the British Chiropractors´┐Ż Association. His sin was to say in an article in The Guardian newspaper: "the British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments". The BCA eventually withdrew, but it cost Simon a lot of money. He was lucky in a way, as he is a best-selling author and could afford the costs without being personally ruined, but we aren't all in that fortunate position. For many of us even a brief appearance in court would make a severe dent in our savings.
Skeptics have been rather lucky in Australia, and only a very few have ever ended up in court over their skeptical activities. This is more by good luck than anything else, because we have been known to say some pretty harsh things about our opponents, or, more correctly, opponents of reason, and until recently Australia has had some rather draconian defamation laws.
Possibly the most famous case was Professor Ian Plimer, who invited himself into court when he took on creationist Allen Roberts. I believe this case was doomed from the start. Plimer took action under the Trade Practices Act, claiming that Roberts was being deceptive and not offering goods of merchantable quality when he sold tickets to talks promoting young Earth creationism. He lost the first case and then decided to throw away more money by appealing. The result was financially devastating for Professor Plimer and he was only rescued by the action of some generous benefactors. While I applaud his intentions in taking on the religious nuts it was a self-inflicted injury. There were better ways to make his point, and most of them would have cost him a lot less money and time. The fact that he lost is still crowed about on creationist web sites, as if his loss in court somehow validated nonsense.
What happened to Simon Singh probably can't happen in Australia now because corporations can't sue for defamation, but I'm not about to say similar things about the Chiropractors Association of Australia. I've upset them enough lately by writing a magazine article saying that subluxations don't exist and chiropractors shouldn't be treating children's ear complaints. I got a hostile reply saying that just because nobody can see subluxations on an x-ray or detect them in any other way doesn't mean that they don't exist and my comments about there being no nerves between the brain and the ears that pass through the spine didn't acknowledge advances in human anatomy since the 19th century. The word "bogus" just doesn't seem adequate.
The tactic in Australia now is to claim intellectual property infringements or to sue for damage to business.
An example based on copyright was used by a scam artist named Joel Wallach against Stuart Adams. Wallach distributes a video named "Dead Doctors Don't Lie" in which he lies about the death rate of doctors as compared to other professions. He is a veterinarian who likes to call himself a physician because he has an ND degree from a mail-order "university"; he runs a pyramid scheme selling quackery and did a tour of Australia in 2003. Stuart Adams examined Wallach's claims and published his findings on a web site. He was served with a subpoena on a Saturday to appear in court at 9:30 the following Monday morning, where it was claimed that he had emailed all of Wallach's distributors in Australia and that he had violated their copyright by publishing this image. Unfortunately, Stuart panicked. The obvious answer to these claims was that the only way that an email could be sent to all the distributors was if someone in Wallach's organisation had sent it and the image was obviously Stuart's original work.
A few years ago I took on someone for using a false university degree to promote books. This person claimed on her Australian web site that she held the degrees MB,BS from the University of Adelaide but on her US web site and the cover of her books she claimed "MD" from the University of South Australia (which does not have a medical school). Her supporters told me that MD just means medical doctor, so any doctor can use it, that doctors can't publish books using their real names and that she had only done it for marketing purposes. She finally whined to my web hosting company that I was violating her trademark by mentioning her name. I didn't bother to fight this because I had won - she no longer claims a degree she doesn't have. By the way, she claimed both "Sandra Cabot" and "Dr Sandra Cabot" as trademarks. Did she think I wouldn't check? Only the first was registered, but bending the truth didn't surprise me.
I've had two other claims of trademark violation from the US. One was a pyramid scheme called "Nutrition For Life" who claimed that they had been awarded hundreds of thousands of dollars in the US for mentioning their name and that they owned the trademark in Australia. Did they think I wouldn't check? The trademark in Australia was registered to Merck for a system of dietary advice to people with AIDS. I informed the clown in America of this fact and that I had notified Merck's lawyers of his claim. The only time I heard of the US outfit again was when they went broke.
The second one of these was sent by someone pretending to be a lawyer, claiming that I was violating the trademark Jack Shulman. As the Jack Shulman in question had created a web page on which he called me a Nazi and a pedophile I wasn't too concerned, but to keep him happy I changed all references to his name to Jack Shitman. He wasn't happy but what can you do?
I'll briefly talk about my experience on the only occasion when I was dragged into court. My "offence" was reporting the fact that a company had been found by the Federal Court to be operating an illegal pyramid scheme. Their initial attacks on me consisted of continual complaints about copyright violations. For example, I had published a picture of this building that they were using in brochures to represent their Australian headquarters. The signage on the building had been blotted out in their literature, with the obvious intent of getting people to assume that they occupied the entire building instead of the single floor they were renting. At the time, ISPs had no protection against being enjoined in any damages actions for copyright violation and were obliged to take down any web site about which a complaint was made. They dripped out copyright claims an almost a weekly basis, usually late on Friday afternoons. One of the claims was for material on a web site which they had categorically denied having anything to do with in the Federal Court action, but since when have pyramid scheme operators cared about honesty?
They finally dragged me into court with a complaint that I was maliciously attempting to damage their business. Three specific claims were made: that I had conspired with Telstra and Optus and when anybody rang either company's call centre and asked about the pyramid operator the telephone person referred the caller to my site, that the unnamed Saudi billionaire who owned the building had seen my web site and had instructed AMP Capital and Jones Lang Wooten to toss the pyramid company out, and that when you typed their company name into Google my criticism came up above their corporate site. They also engineered a contempt of court charge against me.
The judge was clearly on my side (he actually referred to them as "shonks like you" on one occasion) but he had to uphold the law. All they had to do was get someone to swear in court that they had not done business with the company because of what I had said and I could have been forced to pay damages. That would not have been the real risk, however, as even if the damages awarded had been $1 I might have been ordered to pay their legal costs, which we had estimated at about $250,000. They would have had no problem getting someone to swear this, because an employee of the company had committed perjury by signing a false affidavit in the contempt matter, so clearly lying in court wasn't a problem for them.
We finally settled with each side bearing its own costs, but it still cost me far more than I could afford, both in money and time. By the way, the case is lied about on several alternative medicine sites as evidence that I was successfully sued.
So what did I learn out of all this?
Firstly, I am a lot more careful now in the words I choose. I pay a fee each year to the registrar of my domain name which ensures that my contact details will not be revealed without a US court order. (Jack Shitman had difficulty with that, but he finally emailed me through my web site.) I make sure that if I say something critical about someone I have the facts to back up what I say.
And I keep my lawyer's phone number on speed dial.
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