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!
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