GP in defamation battle gets pre-trial lift

A Supreme Court judge has rejected most claims in a defamation case against Melbourne GP Dr Adam Smith for YouTube videos he made challenging the evidence behind products sold by a US-based naturopath.
 
In a pre-trial judgement following a March hearing, Justice John Dixon considered 96 questions for preliminary determination relating to 10 videos.
 
He rejected a large number of the claims made by Dr Farrah Arsenia Agustin-Bunch, saying that most imputations in the videos ‘are expressions of opinion’.
 
The judgement also noted that it is ‘important to recall that speaking critically is an important aspect of the exercise of freedom of speech’.
 
Dr Agustin-Bunch, who gained a medical degree from the Philippines, is one of two plaintiffs listed.
 
The other is the manufacturer of the products she markets, which include Pixie Dust, Boston C, Mega‑Dose Vitamin C, Doctor’s Shake and Lightning in a Bottle.
 
Justice Dixon described an allegation that a video portrayed the naturopath as ‘dangerous’ as ‘grossly overstated’.
 
‘As I will explain, the hypothetical viewer would conclude that the meaning conveyed was that the advice she gave was dangerous not that the person herself was dangerous,’ he wrote, concluding that the video does not involve Dr Smith ridiculing and denigrating Dr Farrah.
 
‘Reasonably construed, he was criticising her advice as to treatments from a medical perspective.
 
‘What the plaintiffs contended was Dr Smith’s “sensationalist mocking tone”, will instead be perceived by the hypothetical viewer as the use of parody to communicate his opinions, his criticism of Dr Farrah, to an audience that is not easy to reach.’
 
Dr Smith, whose partner is from the Philippines, and who often speaks in Tagalog in the videos, says that his goal has always been to educate Filipinos about misleading online health information.
 
Among the claims made by the naturopath, whose medical centre was reportedly shut down in the Philippines in 2018, is the ability to treat stage four cancer with a proprietary mix of herbs and vitamins – which Dr Smith also challenged in one of his videos.
 
He welcomed the recent pre-trial judgement and said that he is ready to carry on his legal battle if the matter reaches trial at the Supreme Court of Victoria as scheduled next April.
 
‘I’ve got a lot of evidence, I’ve got a lot of patients relying on me,’ Dr Smith told newsGP.
 
‘I’ve had two and a half years of stress, and I’ve spent $700,000 on it and I kind of want my life to go back to normal.
 
‘But we’ve got to this point where I’m comfortable to go to trial if it keeps on pushing that way.’
 
In 2021, the US Food and Drug Administration (FDA) issued a warning about the products marketed by Dr Agustin-Bunch, and disputed claims they could be used for people with conditions including cancer, asthma, migraines, depression, and epilepsy among others.
 
‘Your Boston C, Mega-Dose Vitamin C, and Pixie Dust Magnesium products are not generally recognised as safe and effective for the above referenced uses,’ the FDA warning stated.
 
A cease and desist order has also been made by Texas Medical Board, prohibiting Dr Agustin-Bunch from ‘acting as, or holding herself out to be, a licensed physician in the State of Texas’, as well as ordering her to ‘cease and desist any unlicensed practice of medicine’ in the state.
 
Dr Smith meanwhile has acknowledged that the legal action against him has affected his appetite to challenge misleading health information in the future.
 
With more than two million YouTube subscribers, Dr Smith has a big audience, but he has not posted for three months and says the current videos make him around $300 a month – nowhere near enough to cover his legal fees.
 
As well as the defamation case in Australia, he says he was receiving cease and desist letters ‘almost weekly’, including one for criticising a mask with a hole at the front.
 
‘It’s not just here that there’s libel difficulties,’ Dr Smith said. ‘The Philippines has also got very strict libel laws and it is just more trouble than it’s worth.
 
‘The current state of things with the libel laws as they are in both countries, we just can’t do what we were doing.’
 
In the meantime, Dr Smith’s legal costs have ballooned – and while a GoFundMe page has provided some relief, his ongoing clinical work is the main means of funding his defence.
 
‘I have just accepted it, it’s part of life,’ he said.
 
‘I am working every day and, not that I want to want to play a victim or anything like that, but I was supposed to get married two years ago, and I’ve just not been able to do it.
 
‘It was just a few YouTube videos, and it’s just escalated into this life-changing sum of money.’
 
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