The Bush Lawyer's Guide to

Avoiding Being Sued for Defamation

Defamation Commercial Torts Trade Practices Abuse of Process

A Guide for Political Activists by Dr Greg Ogle

Surviving Suits

A Guide for Political Activists

What you might get sued for

Avoiding defamation suits

Responding to legal threats

Further information sources

Law Reform

Sport! Having fun with litigation

Being a Bush Lawyer

Bush Lawyer Awards

Threatening Wallpaper

 

Bush Lawyer Cases & Politics

Beating a SLAPP suit: Animal Liberation SA

Gunning for Change: The Need for Public Participation Law Reform

The Gunns Case: Chilling the Environment Movement

Bruce Donald summarises a number of cases of "Defamation Against Public Interest Debate"

Hindmarsh Island - early days

Approaching the Court

This website is authorised by Greg Ogle on behalf of Bush Lawyers Ink, a not for profit legal service brought to you by the legal system's inability to protect the community's right and ability to participate in public debate and protest.

 

The Right to Protest

There is no right to protest in Australia - not in the constitution, not in policing of protests, and certainly not in anti-terrorism laws. And beyond the maze of criminal law, there is an increasing trend of people being sued for protest activity. The closest we get to a right to protest is a right to protest ineffectively - behind a fence, around the corner and a long way from the object you might be protesting against. Any protest which is beyond the merely symbolic, and even many protests which are only symbolic, will surely be unlawful in one way or another - obstructing traffic, trespass, interfering with business, public nuisance. Quite apart from the various torts you can be directly sued for (eg. trespass, nuisance, etc), the unlawfulness of these basic protest actions (and any arrests) can also form a necessary element for other claims against you (eg. interference with contracts, conspiracy to harm business by unlawful means).

The Goal - Risk Minimisation

Given that we don't have a right to protest, there are no clear rules about when protest is legal and when you can be sued. The game is risk minimisation. Nothing that follows means that you won't get arrested, sued or otherwise end up in legal problems. However, hopefully it will help minimise the risk and help you exercise your right to protest. And again, being litigation conscious can also make for better activism.

Risk Assessment

The public relations disaster of the McLibel case probably took suing political opponents off the agenda of large corporations with big market profiles for over a decade. At the turn of the century the most likely people to sue were developers with enough money to sue but all their assets/interests in a particular project which is under political attack. Coastal developments have something of a history of such litigation. However, with Gunns taking on 20 environmentalists and now David Jones suing The Australia Institute, it may be that big companies with corporate images are again entering the game of litigation against public participation.

The basic rule is that protesting against a company is a greater risk than protesting against the government. Protesting which stops work or operations is a greater risk than symbolic protests although the damages may not be huge. The big damages are for things that impact on corporate reputations or markets.

Remember: fear of litigation silences more people than actual litigation.

Protest Actions

If planning direct actions which may stop work or prevent others' activities:

  • minimise the numbers of people publicly named as associated with the protest
  • ensure spokespeople (including police liaison) have no assets vulnerable to being sued
  • do not write plans down - if sued, such plans will become discoverable (ie. they will need to be given to the other side)
  • make no comment to police and do not admit to actions
  • be careful how the action is advertised or communicated to the media
    • it is an action to protect something or about an issue - not an action to delay/cost/stop something
    • "activists today entered X facility and our group said Y" rather than "our group entered X facility" (no admission of trespass in the first one - it is not bullet proof, but why make life easier from the other side)
  • keep focus on the political demand - not on costing the other side money
  • if the goal is publicity, plan the action to minimise disruption to any business
  • if the goal is to disrupt, is it planned and time-limited or open ended (and have you got enough people to do it - otherwise you might be better with a symbolic action)
  • if there is a high risk of litigation, design the action with the elements of defences in mind so that you have grounds for running defences

Organisational Safety

Corporations often have complex structures with multiple entities to limit liability should one particular operation/entity run into financial difficulties. There is no reason why community organisations can not do the same thing.

Organisational boundaries

Risk minimisation requires being clear about what actions an organisation is planning and responsible for, and when actions are done by people operating independently.

Sometimes in community groups people may be members of several organisations, or just get involved in particular actions but not the organisation, or simply work odd hours and do volunteer things for other similar organisations in traditional work hours. While this is ordinary community politics, it can mean that organisations are vulnerable to being associated with and sued for things they were not part of but which people associated with the organisation may have been involved in. Organisations should have clear policies and procedures to authorise activity and identify it as their own, and similarly be able to show that another action is not their action or was not authorised.

Records

If an organisation is sued, any records relevant to the case are discoverable, that is, have to be handed to the other side. Where malice or the organisation's intention is at issue, this could mean extensive discovery of campaign plans, minutes, etc.

Some hints for record keeping:

  • minutes should be kept to a minimum, just the decisions not the whole discussion
  • don't refer to campaigns by company names (eg. Nike campaign), but call it by issue - preferably by the goal (eg. fair wages campaign) because when minutes are discovered the use of company names can be used to show you were targeting them maliciously
  • be careful with wording in the minutes (eg. don't say "plan is to embarrass X corporation and cost them money")
  • record things in the minutes which would assist your case if you were sued
    eg. "strategy is to highlight the implications with X corporation's policy/practices for animal/social/environmental welfare"
    eg. strategy is for nonviolent protest, we will not interfer with operations
  • don't record who moved motions etc (the law and organisations' constitutions usually only require a record of what the meeting decided - especially where decisions are made by consensus)
  • keep documents securely stored, and make the suspicious looking person taking all the personal notes take the minutes - that way you get to keep their notes!

Spies

If someone is thinking of suing you, they will need information about who is who and to collect evidence of planning etc. They may have all they need from eye-witnesses or videos of action, or from your media release, or because you have pleaded guilty to a criminal charge, but sometimes they may send someone to your meetings etc. However, paranoia about spies probably does more damage to groups and campaigns than any information actually passed on.

Rather than a witch-hunt, it is best to ensure that you are doing the risk minimisation stuff as a matter of course - not as a cynical exercise. It should be the way the group operates. Again, this will actually make for a more campaign focused and efficient group.

Insurance Policies

Organisations can take out Officers and Directors insurance policies to "protect" their officers if they sued. Some policies can also include the organisation itself. Such policies can be useful both because they provide some protection to activists, and perhaps more importantly, give them psychological security to allow them to get on with campaigning. However, most policies do not cover a number of things you may be get sued for - you can't really expect be insured to break the law! Policies also don't cover aggravated and exemplary damages, so you might still be liable for damages if you are sued and lose.

Insurance policies saves the stress of looking for lawyers if you are sued, and the insurance company's lawyers will do useful work. However, they basically represent the insurance company and will often look to settle cases - even where that may be politically disastrous. If you do not act on the advice from your insurance lawyers (eg. by continuing to campaign, or by not accepting a settlement), you may lose the insurance cover.

The best approach is probably a pragmatic political one. Insurance is worth it if the groups large/rich enough and if it makes everybody feel safer and be more campaign focused, but it is not a panacea.

Lawyers

Because there is no right to protest in Australia, a lawyer will never be able to tell you that you are perfectly safe doing a particular action. If they do, they are either not doing their job, or they simply don't understand the nature of litigation against public participation.

Don't look to lawyers to give you permission to do an action or to assure you that won't get sued!

Ask lawyers specific questions:

  • what might you get sued for?
  • what are the elements of the suit?
  • what defences are possible?

You can then design an action around that - using media releases etc to set up evidence for a particular defence. For instance: if you frame an issue as being about consumer advocacy, you have protection from secondary boycott legislation under Trade Practices Act - so put consumer stuff in the media release (again, not bullet proof, but it at least leaves open a defence possibility).

Lawyers can also give advice around structuring your organisation. While adoption of corporate type structures may be useful, beware that once you invite lawyers into your governance structures, they will seek and advise on all sorts of legal compliance issues, intellectual property, constitutional rules etc which could tie up an organisation doing internal bureaucracy rather than campaigning. Again, you need to be empowered and assertive around lawyers - they provide services to you, they do not make decisions for you or run your organisation or campaign!

Finally

Remember that risk minimisation makes for better activism, but if it fails, remember that litigation can be fun!

Remember the bush lawyer's golden rule

Be careful, not silent

Note: This website is inactive and not being maintained. You are welcome to whatever is useful, but no guarantees that it is up to date.