Another day, another lawsuit threat...

On Sunday the 21st of March 1999, I was the proud recipient of the following dubiously proofed nastygram (I've added a few hyperlinks for your reading pleasure):

From: "john lemon" <harmonic7@hotmail.com>
To: drutter@curie.dialix.com.au
Subject: LEGAL NOTICE
Date: Sun, 21 Mar 1999 03:08:49 PST


Mr Daniel Rutter
email: drutter@curie.dialix.com.au

Your article titled Plug your snake oil into the wall: The Empower
Modulator, TheQuack Strikes Back, Legal Inaction from Harmonic Energy
Products and Fields of Conflict author responds! are currently published
on the internet. The articles contain statements and comments which are
defamatory of Harmonic Products Pty Ltd and Noel and Elizabeth Orchard.

I have been instructed to arrange for legal proceeding to be issued
against you. To this end, would you kindly advise your residential
address for the purpose of serving legal notices and documents on you.
I assume that you will be prepared to provide this information as you
have previously indicated (in your article titled Legal Inaction from
Harmonic Energy products) that you wait with bated breath to make their
[Harmonic’s lawyers] acquaintance.

Signed

John Lemon
Corporate Solicitor
Harmonic Products Pty Ltd
7/41 Price Street,
Nerang, Qld 4211
Phone 07 5596 6726
Fax 07 5596 6026
Get Your Private, Free Email at http://www.hotmail.com

Coincidentally, this was barely more than a year after the last time I'd been notified of legal sabre-rattling from Harmonic Products. But this was the first time they'd directly contacted me.

I thought it was a bit odd that a "corporate solicitor" was posting from a Hotmail account (and one belonging to Harmonic Products, at that), but since Harmonic have no Web site or other Internet connectivity I've been able to find, it wasn't outrageous. I also found it a bit peculiar that a small company actually had a "corporate solicitor". Corporate solicitors are a species normally found only in those corporations big enough to make the front page if their share price drops five points.

Because I have a serious problem keeping my fool mouth shut, I replied to the message, as follows.

WITHOUT PREJUDICE

At 03:08 21/03/99 PST, john lemon wrote:

>Your article titled Plug your snake oil into the wall: The Empower
>Modulator, TheQuack Strikes Back, Legal Inaction from Harmonic Energy
>Products and Fields of Conflict author responds! are currently published
>on the internet. The articles contain statements and comments which are
>defamatory of Harmonic Products Pty Ltd and Noel and Elizabeth Orchard.

What say you to the obvious reply that it is in the public interest to tell people about devices which do not work? Harmonic Products take pains to point out that their EMPower Modulators and other, even less plausible, products are NOT medical devices, but it seems clear to me that they make many therapeutic claims for them, in among their various other ludicrous statements. These other statements, also, are clearly false advertising if the devices do not perform as described - increasing the efficiency of electrical appliances, for instance. If you are privy to information of which I am not aware, which has made clear to you that the Orchards' wares are in fact not misleadingly described and can, in fact, do the various health-enhancing things which they claim for them, PLEASE present it and I will joyously publicise it on my site. Until such time, though, it is my opinion that the Orchards are selling things that claim to do things which they do not, and can not, actually do, and since it would be easy for them to determine whether their products work or not, I can only conclude that they are dishonest.

If this should end up in court, be advised that I intend to call upon my acquaintances Mr Barry Williams, head of the Australian Skeptics, and Mr Jim Rowe, editor of Electronics Australia magazine (which, by the way, published an abridged version of My Clash With The Quacks in their July 1998 issue, so you'd better make sure to sue them too), not to mention Mr Don Maisch, the author of "Fields of Conflict", a document used by the Orchards in support of their claims, who is absolutely furious about his work being used to spruik devices which he has repeatedly asserted are useless.

Barry Williams: skeptics@kasm.com.au
Jim Rowe: electaus@magna.com.au
Don Maisch: emfacts@zeus.tassie.net.au

I think you will agree that all of my statements which could be construed as defamatory of the Orchards stem directly from my opinion that their products do not work, and that if they DID work it would be very easy to prove it. I would be happy to perform such basic tests, like connecting people to the Therapeutic Goods Administration approved testing equipment of the Orchards' choice and using any other scientifically accepted instrumentation you like to see if it can be determined whether an EMPower Modulator is plugged in or not. Tests of increased efficiency of appliances would be even simpler, not to mention cheap. I would even be happy to perform such tests in court, if possible.

I remind you that the Orchards promised, according to Dr Paul Willis of the ABC (willis.paul@a2.abc.net.au), to "hold a media conference later this year [this was March, 1998] in which the effects of the EMPower Modulator will be demonstrated." Did it ever happen? Have they EVER demonstrated that ANY of their claims are true in anything LIKE a scientific manner? The tests would be cheap! The tests would be simple! But they never do them!

What is an observer SUPPOSED to think?!

Incidentally, the Sydney Morning Herald discovered Harmonic Products independently when they started marketing a product called the "UFO". Their opinions are accessible at http://www.smh.com.au/drive/9902/12/drive6.html. They mention Noel Orchard by name, and the tone of the piece is clearly not complimentary, since they describe the device as "the most amazing automotive product since the Energy Polarizer"; Peter Brock's ill-informed enthusiasm for the Polarizer, I remind you, was arguably the low point of his career.

I am fully aware that in Australia truth is no defense against a defamation action. Public interest, however, is. I also advise you to be very sure that the products made by your clients are legal to sell in Australia, as per Therapeutic Goods Administration regulations.

I FURTHER advise you that the inescapable consequence of forcing me to remove or amend my Web pages concerning the Orchards will be widespread and uncontrollable distribution of these pages all over the planet, in the time-honoured tradition of the Internet. In fact, such has already happened. I do not intend this as a threat; it's a statement of fact. The Internet has a large population of people very keen on freedom of speech - many of them citizens of the United States of America where, I believe, a defamation action such as this one would be even more surely doomed to failure. All of these people will cheerfully, and incessantly, speak for me, should you succeed in gagging me.

My article is already indelibly accessible via such sites as Deja News (go ahead and look - go to www.dejanews.com and search for "empower modulator"; if you use the basic search, you'll find it categorised among the "Past" rather than the "Recent" messages) and mirrored in a number of places after the events detailed in http://www.fromorbit.com/drutter/quacks2.htm. Even if I wanted, or was legally compelled, to, I couldn't get rid of these copies. So, essentially, I can only point out that you appear to be embarking upon a hopeless battle.

And, by the way, I'm penniless. You can call my accountant, R. J. Chalmers & Co., (02) 9267-6513, and ask. So if visions of substantial damages payments are dancing in your head, I suggest you look elsewhere.

It has been my impression, up until now, that the Orchards are very much aware that publicity and the attraction of expert attention to their claims in particular, as opposed to outrageous pseudoscientific mumbo-jumbo in general, can only harm them. They have certainly made no attempt whatsoever to communicate with me about the content of my site; it strikes me that turning to the lawyers as one's first resort is churlish at best. I believe a lawsuit would be an utter public relations disaster for Harmonic Products. But do feel free to try.

>I have been instructed to arrange for legal proceeding to be issued
>against you. To this end, would you kindly advise your residential
>address for the purpose of serving legal notices and documents on you.

Certainly.

And I gave 'em my address.

 

It has been pointed out to me that doing that was a bit silly, as I wasn't required to do so and could have told them to go hang. I felt like being annoyingly polite, though, and since I'm a private citizen who owns a domain name, it wouldn't exactly take the combined intelligence forces of all of the NATO countries to find out where I live, anyway. Whois, anyone?

Another bad move on my part, according to one of the people with whom I corresponded about the situation, was to admit to penury. A person with no money is easy to knock down with a lawsuit. There's a good chance they'll give in before even going to court (in Australia, legal aid is apparently not available to the defendant in a defamation case, so you need money to pay a lawyer, or one that'll work pro bono, or the cojones to represent yourself), and if you get a big settlement out of them or take them to court and win substantial damages, you can take pretty much everything they have, up to and including driving them to personal bankruptcy, and possibly keeping them there for some time.

So it would be relatively easy for Harmonic Products, if they so desired, to annoy me considerably and, conceivably, make my life quite miserable. But it's also easy to smash open a beehive. That doesn't make it a good idea.

It is pertinent, at this juncture, to reiterate that Australian defamation law is firmly on the side of the accuser. If you want to sue someone for defamation in Australia, you don't have to prove damage; if the material in question has been published, and is defamatory, damage to the reputation of the plaintiff is assumed. And the accused cannot claim truth alone as a defence; truth is perfectly useless, unless the statement is also in the public interest.

Incidentally, anybody perverse enough to be interested in Australia's Defamation Act, 1974, can find it here.

Harmonic don't have it all their own way, though. If you're going to sue someone for defamation in Australia or anywhere else, it's important to file the suit quickly as soon as you're aware of the alleged offense. If you sit around for a year or two, as Harmonic have in my case, it suggests that you're not actually all that exercised about the situation. The longer you wait, the less plausible your suit will be. And directly threatening legal action, as the above letter does, and then not following through with an actual suit, is a really bad move.

Needless to say, the above reply to the alleged solicitor wasn't the only e-mail I sent. I essentially duplicated the communications frenzy I'd engaged in when I first found myself in censorship trouble, and added to the to: fields everyone I'd met as a result of that first fracas.

As a result, a couple more people offered to mirror my pages, the people that'd done it before pledged their continuing support, and I received a variety of other feedback that educated me no end about the subject.

Among the responses to my messages were a number from various folk, many with letters after their names, who said they'd be happy to either stand up in court to testify to the ludicrousness of Harmonic's claims and the correctness and public interest of my statements, or to participate in those actual scientific tests that Harmonic seem to avoid like the plague. Danny Yee, one of the kind souls who mirrored my pages during the last bout of excitement, reminded me that anybody who sued me had better therefore sue Sydney University as well. While they're at it, of course, they'd better sue Electronics Australia magazine too, because they published an abridged version of My Clash With The Quacks in their July 1998 magazine (for which I got paid! Thanks, Harmonic!). And The Sydney Morning Herald discovered one of Harmonic's newer products themselves, and made fun of it here, so they'd better sue Australia's top-selling daily broadsheet, too.

Barry Williams, Grand Pooh-Bah of the Australian Skeptics, said he thought he could provide me with a list of expert witnesses to call. Don Maisch, the hopping mad author of some of the legitimate material Harmonic uses to support its loopy claims, pointed out that exactly what was needed to pull the Australian electro-quackery industry out from under its rock was for them to sue someone. He shared this opinion with prominent Australian I.T. journalist Stewart Fist (Web site here), a man who among his other talents is clearly competing with James Randi and Barry Williams to see who can can win the coveted Skeptic Who Looks Most Like An Old Testament Prophet Award. Stewart cheerfully volunteered his services to give Harmonic Products "some free publicity".

Fredric L. Rice of The Skeptic Tank mirrored The Quacks Strike Back here. And a Justice of the Peace from Queensland told me to expect to be served with the lawsuit in the near future, since, if they really have a lawyer on retainer, it would only cost Harmonic Products the filing fee to sue me. He was a nice chap, but clearly inexperienced in dealing with quacks. Quacks, fake psychics and other con-artists have a great affection for legal threats but an amazing reticence to actually see them through, and this appears to be what's happened in this case. As I write this, it's been more than three weeks since the arrival of the legal e-mail, and not a summons have I seen.

So, in the unlikely event that Harmonic go through with their threat and actually sue me, they're going to find themselves very brightly illuminated from a number of directions. The fact that they've previously been invited to put up or shut up, and opted to shut up, would not work in their favour. I think it's unlikely that they could prove my statements were in whole or in part contrary to fact or not in the public interest, but that doesn't mean I'd enjoy being made to report to a court several days' drive from where I live and not being able to get any work done for weeks. Doing this to me would definitely cost them, though, and I don't think they're vindictive and foolish enough to throw their business away just to squash one bug. The more they try to shut me up, the more people will start saying the same thing, louder.

With that in mind, I'd like to send the following message to Harmonic Energy Products, and anybody else who wants to sue me because of what I've said about Harmonic and their products: