The Bush Lawyer's Guide to

What you can be sued for

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 you can be sued for

Basically individuals and organisations engaged in political protest get sued because they are effective. No one is going to bother suing you if you are making no difference. Being sued is a great compliment to your campaigning, but not being sued (successfully) for the doing the same things is even better!

The following are the usual range of things that political activists are sued for under civil law. These are separate from criminal laws which are enforced by the police although there can be some overlap. You can be sued for the same actions for which you have been prosecuted by the police, and criminal acts can also form elements of some of the torts (civil law actions) below.

WARNING: The rest of this page is scary – it is recommended that when you have read it, you should restore sanity by immediately clicking on “Having fun with litigation" on the left of screen (otherwise known as "litigation as sport").

Defamation

Defamation basically means saying or publishing something which is deemed to diminish the reputation of a person or company/incorporated organization. Everyone involved in a publication (spokesperson, organisation, authorizer, printer – and even someone repeating someone else’s words) can be held liable for defamation. There are various (complex) defences to avoid liability for defamatory statements including the fact that it is true, but the bottom line is that any critical statement can be construed as being defamatory. The average nightly news bulletin contains about a dozen defamations.

Click here for advice on how to avoid or survive defamation claims

Defamation has been the traditional choice of those suing activists. It is easy to find something which is defamatory of you, and you do not have to prove that the statement actually caused any financial or other damage to you. Governments can’t sue for defamation, and recent uniform defamation laws put in place across Australia have abolished that right for private corporations employing more than 10 people to sue for defamation. However, individuals, small corporations and non-profit organisations can still sue for defamation, and company directors, CEOs, Ministers or others can still sue for comments about a government or corporate body if they can show that those comments reflected badly on them as the people responsible for the company.

Injurious Falsehood

This is similar to defamation, but there is a requirement to show both actual economic loss arising from the false statement and that the statement was made with malice (ie. often amounting to knowing that it was untrue and would cause harm). This is harder to make out than defamation, and may lead to “discovery” of the financial records of the person or company suing (in order to prove economic harm). This is a disincentive to using this suit, but with companies generally now no longer capable of suing for defamation, it may become more fashionable.

Trespass

While trespass is usually a criminal act, it can also be used to sue protesters for things like a banner drop off private infrastructure, or going on to private property (or public property in the possession of a contractor) for whatever purpose (eg. gathering information, filming, or to confront employees). It can be used by companies who think that the criminal sanctions are inadequate, or because the police have chosen not to prosecute. In criminal law it is only trespass if you refuse to leave a property after being asked (or warned off by signs). However, in civil law, once you have entered the property, you are considered to have interfered with the owners’ “quiet enjoyment of their property” and can be sued. This is one reason why protesters should think carefully about what admissions they make to police, even if they are prepared to plead guilty and cop the fine in a criminal case. Liabilities for civil trespass can be substantial, can apply to goods as well as land, and there are few defences available.

Conversion

Basically a claim for damages when one "converts" someone else's property to their own use. Not a usual sort of claim but it was used in the Gunns case against protesters locking on to equipment - converting the company's equipment to their own use. To the lay person this looks like just another way to plead trespass to goods, but it serves to keep the lawyers busy and make the pleadings longer.

Nuisance

This is a generic sort of tort of causing damage by some act of nuisance - the sort of tort you plead when you can't think of anything else, or you want another tort to add to a list of complaints. The good thing is that it speaks a language so a defence of abatement of nuisance is possible - always a long shot, but at least you then try to have a debate in court about whether the protest or thing you are protesting about is a real nuisance!

Interference with God

Interference with God (ie. trade/business/contracts) is an increasingly popular cause of action against political activists. It can be brought as a civil law suit or as an action under the Commonwealth Trade Practices Act, although the Trade Practices Act does have an exemption for actions for environment and consumer protection.

Contracts

In the common law, it is suable if you intentionally interfere with the contractual relations between two parties. These contracts can be employment contracts, contracts with suppliers or contracts of sale. This action can be applied to protest actions which stop or interfere with work, or to calls for boycotts of products, and in a somewhat bizarre case, to a logging company not getting an environmental award (they claimed that having entered the award, they had a contract with the organisers which they say was interfered with when greenies allegedly wrote to the award organisers highlighting aspects of the company’s environmental record).

The tort of interference with contractual relations supposedly requires that there was intentional interference and therefore knowledge of the contracts, but this doesn’t necessarily mean that you knew all the details of the contract. If you knew someone was selling a product or is employed by someone else, you can be presumed to know that there was a contractual relation. Once such knowledge/intention is proved, there a few defences available.

The upside is that the other side will need to show economic loss, so in the court process you get to look at all their financial records and contracts – potential fun and something of a disincentive for sleazy businesses.

Trade and Business

Interference with trade and business is an “emerging tort” (meaning an ambit claim by zealous lawyers!) and is a more generic version of interference with contractual relations. It generally requires the interference to use some unlawful means, but the even more adventurous plead it without unlawful means. It is basically the same logic as with contract: “you did something which interfered with my business and cost me money, and therefore you are liable”, but it can be more general interference and could presumably include interference with possible future business. It has only been successfully argued once in Australia (Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637) and various appeal courts and the High Court have ducked the issue of whether it is actually good law. The vagueness, and the potential wide application of this tort make it truly scary for freedom of political protest.

Conspiracy

An evil sounding word bringing images of shady characters meeting in dark rooms. Not so. A conspiracy simply means an agreement to do something, and it can be suable if the agreement is to do something which is intended and does cause harm to someone, and the action involves some unlawful behaviour. This can be applied to organising a protest which involves a trespass, a statement which involves defamation, or a banner drop or any campaign – the organisation of which obviously required planning and meetings (and therefore agreement and conspiracy!). For example, a banner drop off a smokestack saying “Stop pollution now” could be the result of a conspiracy among 6 people who organised the banner drop to harm the company operating the stack. The unlawful means might be trespass, interference with contracts (if work was stopped) or even breaches of occupational health and safety regulations.

Suing political activists for conspiracy became popular as a way of crushing the formation of trade unions in the nineteenth century, but when unionism became legal, the tort went out of fashion until the rise of the new right in the 1980s. However in the 1990s it escaped the industrial framework and when it launched, it was the centrepiece of the Gunns case (Gunns v Marr & Ors) in which a whole range of protest activities were alleged to be conspiracies themselves and part of a broader conspiracy against the company. That said, judges hate conspiracy claims and they can lead to legal quagmires for those bringing the suits - a lesson learned the hard way by a number of companies.

Vicarious Liability

Vicarious liability is where a person (or organisation) is held liable for the actions of someone else because the wrong-doer was an agent, employee, contractor or otherwise operating on behalf of the person or organisation. Thus, community organisations can be held liable for the actions of their staff and volunteers. In Gunns v Marr & Ors, Gunns is claiming that The Wilderness Society is vicariously liable for various protests because the protesters (even Greenpeace!) were agents of The Wilderness Society. In Takhar v Animal Liberation SA & Or, Animal Lib was said to be liable for the actions of its employee in a raid on a battery hen shed even though the action was at 2am.

The law is complicated (and even contradictory) on the limits of vicarious liability in terms of when a person was an agent of another, or doing something as part of their employment. The fact that a person was a volunteer or staff member of an organisation does not automatically mean that the organisation is responsible for everything that person does – it will depend on what authority they had to act and whether their actions were part of their employment.

Unincorporated Organisations

Unincorporated organisations are usually loose collections of people and/or organisations who are not “registered” (incorporated) and are not “legal persons” in law. This form of organisation is common for community coalitions which develop around particular issues, or for small protest groups in their early days. Usually if groups go on from one hot issue to be “permanent” groups, they apply for incorporation and become associations under their state’s Associations Incorporation Act. However, while unincorporated the group can still be sued in the name of the group (at least in many states) which effectively means that all members of the group are being sued, and all members of the group can be held liable for the group’s debt.

This is particularly an issue where good community networking means that a range of organisations with substantial assets can form community coalitions – often with the activists quite different from the members of the coalition. On the principle of suing the parties with the deepest pockets, unions or large NGOs may find themselves being held liable for the activities of others simply because they put their name to (or gave office space/assistance to) a coalition or group out of support for the cause.

This liability is different from a conspiracy or vicarious liability in that the other side does not have to prove that you were part of an agreement to do a particular activity, just that you were a member of a group and that group did a particular action. This is particularly scary, and one reason why most groups formally incorporate themselves (which limits liability). On the other hand because unincorporated groups have no reporting requirements and no legal presence, in practice it may prove difficult to serve them with papers to start the legal process (i.e. - sue them) and to prove who were actually members of the group at any one time.

Incorporated Organisations and Management Committees

By becoming incorporated, groups become a legal entity in their own right (an Association), and their members are no longer held liable for the debts of the group. Thus, an incorporated association can be sued, found liable, go bankrupt and close down without ever paying a cent to the person suing them. It costs about $100 to incorporate a new group with exactly the same purposes. However, by incorporating, a person or group of people, usually the Management Committee, assumes legal responsibility for the affairs of the incorporated association. This creates some potential liabilities on the people who have assumed legal responsibility.

The general principle is that a management committee is not responsible/liable for the debts of the organisation. However, individuals on the Management Committee may be held responsible if they have acted negligently or allowed the organisation to trade while insolvent. This usually applies to considerations of their diligence in management, not to any liability for individual activities of the organisation. However, it is unclear whether allowing an organisation to do ‘unlawful’ protest actions would constitute behaving negligently. Of course if Management Committee members had agreed to or authorised a particular protest activity which was suable, they could be liable as part of a conspiracy.

Note though: the overwhelming experience of law suits against community organisations is that Management Committee members are not sued (unless they were actively and publicly involved in the action) and are not held liable for the debts of the organisation.

The good news

All of the above sounds pretty depressing. You can be sued for almost any political action you do, particularly if you commit the great crime against democracy – ie. you protest effectively. This is hardly encouraging or democratic, and it is one reason why you should never let lawyers advise you on whether you should do a particular action!! Lawyers can advise on potential problems, but then you need to organize your actions to minimize those risks. Alternatively you can give up, go home, say nothing, and just watch American sitcoms on TV.

Of course the good news is we continue to protest and assert our rights (even if those rights are not recognised in law!) and 99.9% of protest actions do not result in law suits. And for the 0.01% that do, it can be fun! See Having Fun with Litigation!

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.