What happens when the court is asked to pass judgement on that which cannot be proved? What if, as in this case, claims are made about the effectiveness of “alternative cancer therapies” which are rejected by modern medical science, but which cannot be disproved?
Professor Campbell was the fourth defendant and his company, Operation Hope (Australia) Pty Ltd, was the second defendant. Operation Hope runs a cancer treatment centre which offers alternative remedies for sufferers, including: ozone therapy, neuro immunology, ketogenic diet, radio wave therapy and high does intravenous vitamin C. The Operation Hope website contained claims including the following:
“These techniques are proving to be the best treatment option for patients that have previously failed conventional therapies.”
“At the Hope Clinic, we provide an [sic] unique diagnostic processes that can better assess the patient’s cancer.”
“In the majority of cases these treatments lead to an extension of life and an improvement in the quality of life.”
“Today, most people continue to equate cancer with death or an excruciating journey back to health filled with physical debilitation and pain. However a variety of complimentary therapies exist at the Hope Research Institute that have proven safe, gentle and effective at reversing and preventing cancer.”
Dr Claire Noone, Director of Consumer Affairs Victoria, commenced legal proceedings arguing that these four statements, and 33 others, were false and misleading, contrary to section 9 of the Fair Trading Act. In bringing her claim, it seems that Dr Noone was alive to the difficulties of disproving the effectiveness of the alternative treatments. As Justice Pagone explained, “[s]ome controversies are not apt for resolution by the tools of a court of law. Some views held as truths are not capable of proof or disproof by legal standards.”
As such, Dr Noone did not allege that each statement was false. Rather, she claimed that there was a representation underlying each statement that the claim was accepted by the prevailing scientific community (it being common ground between the parties that the claims made on the website were not so accepted).
Dr Noone might have been successful if Justice Pagone had agreed that the various claims were statements of fact. However, his Honour found that they were merely expressions of opinion, despite being expressed in seemingly objective way. In so finding, his Honour held that:
“care must be taken when considering the difference between fact and opinion because opinion is often expressed as an assertion of fact. A person whose opinion may be that the world is flat will hold, and usually express, that opinion as a fact and not as a preference from a range of equally valid points of view.”
His Honour found that one must consider the context in which the claims are made. Here, claims did not intrude upon the reader, but were made available to those who chose to visit the website which is dedicated to alternative, non-conventional, treatments. Further, the target audience was those who suffer from cancer and who would likely read the material in detail. It would be apparent to these readers that the treatments discussed were not endorsed by conventional medicine.
That being so, Justice Pagone found in favour of Operation Hope in respect 36 of the 37 allegations that it had made false and misleading representations:
“I do not consider it to be false and misleading …for the defendants to express a belief, opinion or view which is contrary to traditional western medicine and prevailing scientific knowledge. The same may equally be said about the positive curative effects of any number of other views, including firmly held religious beliefs, which have no foundation or support in modern medicine or science and which, judged by that standard, are clearly wrong.”
There was but one representation for which Operation Hope was found wanting. The website contained the following statement:
“SUCCESSFULLY TREATED DISEASES … Cancers including Gastrointestinal, Thyroid, Pancreas, Breast Cancer with brain metastases, Cervical cancers, Lymphoma, Leukaemia and many others …”
Operation Hope argued that this too was an opinion and that “treated” did not mean “cured”. However, his Honour found that use of the word “successfully” qualified “treated” such that it did in fact mean “cured”. His Honour further found that a representation that various types of cancer had been “cured” could not be construed as mere opinion. It was an assertion of fact, and one which was misleading.
Finally, we would be remiss if we did not mention that the plaintiff also argued that it was misleading for Professor Campbell to refer to himself by the title “Dr” on the website given that he was in fact a dentist and not a medical doctor. The Court disagreed, holding that it is common for suitably qualified people to use the title “Dr” despite not being medically qualified. The Court noted “for completeness”, that the plaintiff’s did not appear to be medically trained or qualified and yet also described herself as doctor in the pleadings filed on her behalf.
The full text of the decision is can be found here.