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.
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