The Bush Lawyer's Guide to

Responding to legal threats and litigation

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

Protest risk minimisation

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 Lib 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.

 

What to do if you are threatened or sued

RULE No. 1 DON’T PANIC

  • Many threats never become actual litigation
  • Actual cases often do not go the distance or ever get to trial
  • There are usually strong legal defences available
  • Lots of activists have "been there, done that" and survived (and can help)
  • The worst case scenario of activists losing houses/sustantial assets is still about 3 separate court cases and 8-10 years away, and what the law states in principle is not necessarily enforceable in practice - there are still financial options open and often no money changes hands!

Remember: fear of what courts might do silences more people than actual court decisions

And as the legendary McLibel case showed, courts also open a new arena to raise issues - even if the system is very foreign, time consuming, and expensive.

Be consistent in responding to legal threats

  • Decide in the beginning, either not to respond to lawyers' letters threatening litigation, or to respond politely and open a dialogue, or tell them to go jump. (See below)
  • Decide early on whether you are going to go public and use the case as a political vehicle or whether you want to try to avoid publicity or just try get out of a case against you.
  • It is hard to change tactics half-way through as your earlier responses will come back to haunt you.

Welcome the opportunity

You will get to discover all sorts of interesting things when you legally inspect the other side's documents dealing with the issues in their complaint (eg. you may get to see their business records, PR advice, communications with governments).

  • Make sure the other side knows that you are looking forward to "discovery" of their documents - it is often a nice disincentive for them to continue!
  • If you are sued, both sides are legally obliged to make all relevant documents available to the other side. However, the other side's definition of what is relevant may be narrower than yours! Make sure you ask for all the information you want and apply to the court for discovery if the other side won't give it to you.

Remember the system is based on a system of costs and damages as penalties. If you are an individual with no assets to lose, or an organisation with no assets, then you have a certain amount of freedom in the system to have fun, make political mileage, or just make the bastards pay.

RULE No. 2 KEEP THE POLITICAL FOCUS

Once you start thinking of the case as a legal matter rather than a political issue, you have started to lose - politically and legally.

Think about what (if any) political outcomes you want from the case, - or are you just trying to save yourself or your organisation. (Note: both these are valid and important, and getting out of the case so you can get on with campaigning is also a good political strategy).

 

Hints

Responding to threats

On receiving a letter threatening litigation, there are generally 4 possible approaches:

1) Offer an immediate apology & retraction (and possible money).

  • This may be a good option if you are financially or personally vulnerable, or if you have made a major stuff up in what you have said, and under the new defamation laws immediately limits damages and the ability to litigate
  • It is rarely a good option in political terms.

2) Ignore the letter

  • the low work option, and actually refusing to correspond or concede any fact creates difficulty of proof on some issues for the other side (eg. you will not have admitted that you published the statement, and in our legal system even having your name on a media release or letter does not necessarily prove you published a statement).
  • the fact that you have refused to reply can be used against you as evidence that you were malicious (see below) and careless as to the truth of what you said or the harm you caused.

3) Politely respond asking for more information

  • depending on circumstances, you can reply asking why the people threatening litigation think you have defamed them, which words do they object to, and what facts they object to, or exactly what actions you are supposed to have done. This puts the onus (and expense) back on to them, and you can use statements made by the other side to set up your defence - but beware, they can use your statements against you as well.
  • if following this approach, do not concede anything. Attempts at compromise or finding a middle ground will come back to haunt you (eg. they show you didn't really mean/believe what you said).
  • do not make categorical statements (like you did not defame them, or will not issue a retraction). You should say you do not believe you have defamed them, and unless they can provide further information, you will not retract anything at this stage.
  • it is also worth stating that you have a genuine concern about the issue and a legitimate right to express your concern, and had no intention to defame anybody.
  • if your original statement was already loaded on the web, you can upload the letter of complaint (without comment) as well. This constitutes a reasonable action in terms of giving a right of reply, but in some cases it will also make the person threatening you look like a pratt!!
  • if you are very confident, you might want to assert the basis of the statements you made (eg. "We note that XX government report says blah") but in general, it is best not to engage in political debate in such correspondence as it can be used against you.
  • lawyers and experienced political activists can help with such letters.

This is a good option to keep future options open, and when viewed as political chess, you can also have some fun role-playing "thinking like a lawyer"!

4) Tell them to get stuffed

  • the activist gut level response!
  • if following this, then go all the way and do media saying how outrageous the threat is etc.
  • your lawyer will probably advise against this as both the response and the media releases will be used against you as evidence of malice.

This approach is probably best if you are happy to go to trial (for campaign reasons) and have no assets at stake. You might also be guessing/gambling that the publicity will be a sufficient disincentive for the complainer not to go to court.

Responding to an actual case against you

You may not get a warning letter before they sue you. The person suing you (the Plaintiff) may just go straight to serving a statement of claim against you. However, many of the same decisions still need to be made:

  • You still need to decide your strategy early including, in this case, do you do a detailed defence outlining your argument (and giving them lots of information, facts and admissions) or do you just deny everything and make the other side prove everything.
  • Even when writs have been issued, there is always room for negotiation and mediation - hence many of the same issues arise as above in terms of apologies, polite responses or telling them to get stuffed.
  • If a statement of claim has been served against you, you can still just ignore it. A judgement will then be made against you and then it is a question of whether the other side can collect the damages awarded. If a person has no assets, or if they have only sued an incorporated body with no assets, then they probably can't get any money out of you.
  • One of the most important decisions is: do you use a lawyer, which one, and how (see below).

And always, always, always counterclaim!

  • because the "high moral ground" of being unjustly accused counts for nothing in a rule-bound court system;
  • because it changes the dynamic of the court process and stops the other side completely setting the agenda;
  • because it can give you a chance to discover more material from them;
  • because if you are going to go to all the hassle and expense of court, you might as well get something out of it beyond having just survived; and
  • because it might aid settlement by focusing the other side on the fact that they have something to lose.

Most importantly, don't forget golden rules:

DON'T PANIC and DON'T LOSE THE POLITICAL FOCUS

 

Using Lawyers

The legal system is complex. Self representation is romantic, but often not feasible/sensible - especially at trial. (Remember, behind Steel and Morris in McLibel, was Keir Starmer's regular legal advice, and an international campaign). However ...

Beware of lawyers: even with best intentions:

  • lawyers often have little political understanding and may dilute or contradict your political message in fitting it to a particular defence
  • lawyers are not used to dealing with clients who are actively interested in the case and who may want something other than to win/get out of trouble
  • pro-bono (free) lawyers are trying to fit your case into their spare time. Paying cases will take priority. They can do good work, but may also not have time to be pro-active, explore all legal possibilities or mount the best defence
  • paying for good legal advice (top QCs) can make a big difference and may be the best option if you are taking the case on seriously - this also means serious fundraising is required

Many activists have the skills and can save money and maintain greater control of the case by doing much of the work, including document preparation yourself. Document formats etc can often be plagiarised from other pleadings - lawyers do this all the time, and so can you. (If you have the skills, and your lawyer won't accept this, then you probably have the wrong lawyer!).

Malice

Malice is one of the big problems of defamation law. If a court finds that you have acted "with malice", this will ruin your legal defences (including a defence of truth in some states) and increase potential damages awarded against you.

  • Malice does not mean that you act maliciously in the normal sense of the word

Any action, publicity or further comment on the issue, or on the court case, can be used as evidence of malice:

  • When publishing your original statement, failing to check your facts or give the opposition a chance to respond to your statements can be construed as malice
  • Failing to respond to legal letters or to issue apologies at any stage can be construed as malice
  • Your behaviour and legal strategy during the case can be construed as malice
  • Commenting unfairly on the case can be viewed as malice
  • Their behaviour and legal strategy during the case can be construed as malice if you have counterclaimed (hence the rule above, always counterclaim!).

Even where defamation is not an issue due to the uniform laws, the same sorts of things which might constitute malice can be used as evidence of aggravating behaviour which can increase the amount of damages you may be liable for from other claims brought against you.

Lawyers will therefore advise you to say/do nothing once you have been sued. That is, your own lawyers will deliver this political victory to the other side.

Hint

A separate group set up to speak about the legal cases allows activists to talk about the cases (if not the original issue) without damaging your case. It also allows the issue to be framed in terms of civil rights to free speech and therefore appeal to a different/wider audience than those only interested in the original issue.

For those not used to community based organisations and politics, coalitions on particular issues can muddy the waters as to exactly who is responsible for statements/actions. This might give you freedom to comment on cases or on the original issue, though ultimately you must always be prepared to take responsibility for you actions. On the other hand, unincoprated bodies, coalitions and casual groupings may cause problems for defendants in court who may be held responsible for the actions of other people/groups.

 

Remember the bush lawyer's golden rule

Be careful, not silent

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