An open letter to Dr Dan & his lawyers
Last week I received a Cease & Desist notice. This is not the first time this has happened.
Back on August 10th, I sent you a newsletter about Dr Dan, an Auckland doctor who used his official Instagram account @DrDanOfficial and Facebook page to make posts about alternative Covid 19 treatments including hydroxychloroquine, ivermectin and hydrogen peroxide.
In the piece I detailed why I believed that to be problematic — methodically and carefully talking about each treatment and trying to provide some context:
“We’ve known that ivermectin helps reduce COVID mortality for over a year now” wrote Dr Dan. “When will the guidelines change?” he pleads. “Why haven’t they?”
He posted the study on his Facebook page on June 20 — the same day it was reported that one of the largest ivermectin studies had been withdrawn.
I reported on his posts and his practice, and provided some further context about Dr Dan — most of it publicly available at the time. Anyway, the whole piece is here for you to read.
Then last week, I got a cease and desist letter from a lawyer.
3.33pm: You Have Mail
The e-mail arrived last Wednesday at exactly 3.33pm:
I googled the numbers “333” and was pleased to find this on a website called numerologysign.com:
“Have you been wondering what your higher life purpose might be? Have you been seeing the repeating numbers 333 seemingly everywhere? Then this could be a sign from your guardian Angels!”
Well in this case my Guardian Angels had sent me a PDF cease & desist letter from Chris Patterson Barrister, a law practice in Auckland, New Zealand:
My stomach fell when I got this. No-one wants a long letter from a law firm in their inbox. At its most basic, the letter alleged that the newsletter I’d sent was defamatory. It claimed I had painted Dr Dan to be:
A conspiracy theorist;
An incompetent doctor;
A perpetual criminal who continues to break the law;”
Unable to be trusted either as a medical professional or in anything he says.
Okay, let’s stop there. I want to be very clear about something here: I didn’t allege any of these things.
You can read the piece again here and see for yourself. I never called Dr Dan an anti-vaxxer. I didn’t call him a conspiracy theorist. And as for “Unable to be trusted either as a medical professional or in anything he says?”
Just look at what I wrote: “I have no doubt Dr Dan is knowledgeable in certain areas. I am sure he’s helped patients in a variety of ways. And that’s great.”
Of anything to accuse me of, accuse me of being his hype man.
I don’t mean to get up on my high horse here, but I pride myself in what I write and I am very careful how I write it. I make sure I don’t make false defamatory statements and that anything I say (including my opinions) are backed up with facts. Here on Webworm, that can be quotes, or links to studies, or talking to experts. I do it in a variety of ways.
And as whimsical as I can be here on Webworm, I take it incredibly seriously. I owe that to you as a reader and someone who supports my work. Some of you pay to get this newsletter, and I owe that to you.
I am careful for another reason.
See, when you work in a newsroom, you have an incredible legal safety net. You are not publishing as an individual — you are publishing for a company. And that comes with protection. When I worked at TV3 in New Zealand for example, they had in-house lawyers that would tackle legal quandaries.
As a journalist, it’s very unlikely the newsroom would leave you standing on your own if you were sued for what you published. As your employer — or the company to whom you contract — the news website, or the channel, or the radio broadcaster would be right alongside you in any courtroom, normally as a co-defendant, or at least financially if the plaintiff took the odd step of suing only the journalist.
Here on Webworm I am alone. It is just me.
So if I state something about someone, and they are not happy, and they have money and can afford a good lawyer — they can get that lawyer to write me a letter in the hope of making it all go away.
It doesn’t matter if what they allege is true or not — the mere threat of a legal battle is scary. Because legal battles cost a lot of money. Just the act of defending yourself costs money.
My first encounter with a cease & desist: 2014
I first encountered what I call “cease and desist terror” in back in 2014 when I had no grey hairs, and Dylan Reeve and I had just decided to make a documentary about competitive endurance tickling.
I’d just left the safety net of TV3, and Dylan and I had launched a Kickstarter to help fund The Tickle King, a project that would go on to become Tickled.
What happened next is documented in the film. First, the subject of our film — David D’Amato — hired a New Zealand attorney to send us a cease and desist letter. It was very long and scary and contained stuff like this:
“My client considers that the assertions that he is the “Tickle King” and that he is associated with Jane O’Brien Media, brings his reputation (both professionally and personally) into disrepute. My client instructs that as a result of the Postings, he has suffered considerable stress and anguish and as a result, a loss of income.
I also consider that my client will be entitled to readily issue proceedings against you for defamation – the point at which you will have to prove as true the assertions of fact made.”
At the same time, we were also getting legal threats from New York attorney Romeo Salta (who would go on to appear in Tickled, and another documentary called Don’t F**k With Cats) on behalf of Jane O’Brien Media.
(To be clear — Jane O’Brien Media also turned out to be David D’Amato).
These legal threats were scary to me, and scary to Dylan. We felt like we’d set off a series of grenades we felt ill-equipped to deal with.
It was early on in our investigation — we hadn’t even started shooting yet — and yet here we were being hit with legal threats from both New Zealand and the United States. This hadn’t happened to either of us before. It was a brand new experience and it didn’t feel good.
On top of that, the New Zealand lawyer was threatening other things too, like making moves to reveal the names of our Kickstarter backers, insinuating they could be held liable too:
It’s hard to explain, but somehow this felt worse. Hundreds of people had donated to money to our Kickstarter. Now they were all under threat too. That included my family, friends, colleagues and the total strangers who’d chosen to support us. And Dylan and I felt responsible.
So we scrambled and we panicked and we pivoted. Despite everything we’d stated being true, we painfully removed mention of D’Amato from our Kickstarter page (an endless back-and-forth with very understanding Kickstarter staff), I axed pieces I’d already published on 3News.co.nz (something I’d never done before and was very difficult and embarrassing to explain to my bosses) and Dylan scrubbed mention of D’Amato from his personal website.
At one point we were lucky enough to get a local lawyer to help us navigate this mess pro bono, because they were both curious and kind.
Essentially, we called in a lot of favours and we bent over backwards to satisfy David D’Amato (a man we knew had millions of dollars) and the lawyers he’d hired in New Zealand and New York. It felt endless, and that our little film was in jeopardy.
I was also very concerned that the New Zealand lawyer was now indicating we were responsible for what other websites had written about our project:
“I should also put you on notice that the accusations against my client, as published on the Kickstarter website, have been picked up by at least one other online publisher.
Immediate steps need to be taken to remove the accusations from the Kickstarter website.”
It felt like a runaway train. It was draining, it was exhausting, it was scary.
And I did something I’ll always regret: I unpublished truths I’d published, because D’Amato — a man with infinitely more money than me — had made me do it.
Back to Dr Dan
After listing all the ways in which my Dr Dan newsletter was apparently defamatory, the cease and desist letter from Chris Patterson Barrister continued:
“We do not consider that you have any possible defence of truth and/or honest opinion. As such, we cannot accept that you have any defence available to you for the Blog and associated meanings. We have have advised our client that he has actionable claims in both defamation and injurious falsehood”.
It went on to make two strongly worded requests:
Patterson and his Staff Barrister Charlotte Le Grice went on: “We consider that our client’s offer of resolution is rather generous in the circumstances. We look forward to the prompt receipt from you of the signed apology and undertaking, so this matter can be resolved.”
It ended with the following threat:
It was 2014 all over again.
A man was unhappy about something I’d written and had hired a lawyer to shut me up. Not just shut me up, but sign a letter essentially taking it all back. Because this is what Dr Dan (and the lawyers he was using) wanted me to sign:
They wanted me to sign a piece of paper saying that what I had written was “not true”.
Back on my high horse here, but who I am to you — a reader I am here to service — if a lawyer comes at me and I suddenly stop backing the things I’ve written? If a man with money makes me suddenly renege something I’ve reported. An opinion I’ve stated.
It would be 2014 all over again, and I would be running for the hills. What’s the point of journalism and reporting if it’s erased at the mention of a cease and desist letter? I’d argue there’d be no point, and there’d be not point in you supporting me here. You should cancel your subscription to Webworm immediately.
So I didn’t sign that letter. Instead, I wrote back to Dr Dan and his lawyer. This is what I sent:
Dear Charlotte and Chris,
Just acknowledging receipt of your email last week.
In short, I politely disagree with what you have asserted in your cease and desist letter.
On the face of it, I do not believe any of those meanings are the natural and ordinary meaning. On the contrary, I think those meanings are strained and incapable of arising. Even if one or more is capable of arising, then I do not think it actually arises.
Further, to the extent the blog is capable of giving rise to meanings which tend to lower Dr Dan in the estimation of right-thinking persons, then I am comfortable that I have a complete defence of honest opinion. I also consider the blog was a responsible communication on a matter of public interest.
I’d go so far to say that I was generous, at one point writing “I have no doubt Dr Dan is knowledgeable in certain areas. I am sure he’s helped patients in a variety of ways. And that’s great.”
Your indicated claim of injurious falsehood is interesting, given that your letter does not even address which of my statements were false, or moreover how he says I was actuated by malice. You will be aware that, if injurious falsehood was pursued, Dr Dan would be required to prove both elements.
Be that as it may, if Dr Dan thinks I have posted things that are inaccurate, or otherwise would like the chance to formally respond, I would like to extend Dr Dan the offer of a reply, which I would be happy to publish and critique on Webworm. He can reach me at firstname.lastname@example.org.
For completeness, I would have to subject his reply to usual editorial discretion. For example, I wouldn’t want to expose myself to legal action by third parties, on the basis of what Dr Dan might say.
In the meantime I am about to send this newsletter out, and will keep documenting any related events that unfold: www.webworm.co/p/ceaseanddesist
So — that is what I fired off to Charlotte Le Grice and her boss Chris Patterson. The same Chris Patterson that David D’Amato had hired way back in 2014.
Time is a flat circle
Yes, the “New Zealand attorney” I talked about earlier? Chris Patterson.
Dr Dan and David D’Amato both went for the same legal practice:
12 June, 2014:
19 August, 2021
For full transparency — and so I am not accused of cherry picking — I have made these cease & desist letters available in full for Webworm subscribers. They will be in paying subscribers’ inboxes now — or can also be viewed here: “The full cease & desist letters”.
I am older now. There are far more grey hairs on my head than in 2014, but I’ve changed in other ways, too.
I used to keep this legal stuff hidden in the background, but part of what I wanted to do when I started this newsletter was go behind the veil a little.
The fact is, this isn’t the first time I’ve had to deal with this sort of cease and desist stuff. I’m sick of it. I’m sick of lawyers and their clients trying to scare me about stuff I’ve carefully pored over.
Yes — sometimes I do have to check in with a lawyer myself, and that costs me money. For those that pay to subscribe to Webworm — much like those Kickstarter backers in 2014 — THANK YOU.
Maybe you understand a little more why I appreciate you so much. And why I like chatting in the comments under posts, and hearing about your day, and listening to what you have to say about life.
Again: thank you.