Ken Harvey – all expenses paid

Australian Skeptics are pleased to announce that some hundreds of members of the skeptical community have banded together to successfully cover all of the legal expenses of Dr Ken Harvey, campaigner against pseudoscientific medical claims.

Dr Harvey had been hit with a defamation SLAPP suit by SensaSlim Australia Pty Ltd, the makers of a discredited weight loss product, in response to a complaint by Harvey to the Therapeutic Goods Association.

Dr Harvey’s legal expenses, defending himself from the action, amounted to more than $42,000.

Australian Skeptics organised a drive for financial commitments to show support for Harvey in the face of great adversity. The organisation asked any supporters who felt able to contribute to pledge money to offset his legal expenses, and close to 300 people responded with donations ranging from $10 to several thousand dollars each. Australian Skeptics and Choice also made contributions.

Skeptics president Eran Segev says “The amount of money pledged and how quickly it was collected – more than $13,000 within 12 hours – indicates the grassroots support for the fight against pseudoscience and the deception of the public with disproven or unproven claims.”

A strategic lawsuit against public participation (SLAPP) is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.*

“Dr Harvey was not intimidated,” Mr Segev says, “and he has received support in his activities by Skeptics across Australia and the world to cover the legal expenses that he has incurred in defending himself from an unwarranted legal action.”

Dr Harvey is an adjunct senior lecturer in the School of Public Health, La Trobe University, and a regular campaigner against non-scientific products and services.

Earlier this year, he complained to the Therapeutic Goods Administration (TGA) over a promotion by SensaSlim Australia Pty Ltd for its weight-loss product that uses a spray to supposedly ‘desensitise’ taste buds and reduce hunger pains. The promotion claims that a research study of over 11,000 people had substantiated the company’s claims for the product.

In his statement to the TGA Complaints Resolution Panel (CRP), Harvey provided a number of reasons why, “in my opinion, the ‘sensational results’ claimed are most likely to have been fabricated. In addition, I do not believe that any of the other claims made for this product are capable of substantiation.”

But before the complaint could be properly considered by the CRP, SensaSlim issued a ‘statement of claim’ against Harvey in the NSW Supreme Court alleging that his complaint was defamatory and claiming “general and punitive damages for libel in the sum of $800,000.00”, plus costs. This action also had the effect of postponing the CRP’s consideration on Dr Harvey’s complaint (and a number of others) because of Therapeutic Goods Regulation 42ZCAJ.

On August 15 the defamation case was dismissed, with costs awarded. However, Harvey said he would be surprised if those costs were ever paid as SensaSlim Australia was now in liquidation.

At the same time, the Australian Competition and Consumer Commission brought its own action against SensaSlim. The ACCC alleged that SensaSlim and several of its officers engaged in misleading and deceptive conduct and made false representations in relation to the identity of SensaSlim officers, the SensaSlim Spray and the business opportunities offered by SensaSlim.

The ACCC successfully campaigned to have the company’s bank accounts frozen, and bring action against its directors, one of whom appears to be known and convicted fraudster Peter Foster. This action in the Federal Court is ongoing.

But while Harvey rightly celebrated his win in the NSW court, and the support he has received from the Skeptical community, a second defamation case was launched in the Queensland Supreme Court on August 11 by SensaSlim director, Peter O’Brien. This second case involves a claim of $1,075,000, and is yet to be resolved. However, this time Dr Harvey is being defended pro bono by Marcus Blackburn Lawyers who believe the second case is an abuse of process.

Harvey says that “Hopefully, the win in Sydney will also make it easier to throw out the Queensland case as the statement of claim is virtually the same.”

Meanwhile, the TGA’s Complaints Resolution Panel decided that the Queensland defamation case did not block them from considering earlier complaints as it did not fall within the scope of regulation 42ZCAJ. In particular, the Panel noted that the advertiser, SensaSlim Australia Pty Ltd, was not a party to the court proceeding. The CRP has already upheld one complaint with many others under consideration.