It is becoming increasingly common in Australia for people who are speaking out about an issue to receive direct or indirect threats of legal action. These threats could be a letter from a developer, or public official or corporate director threatening to sue for defamation or from a legal firm threatening some form of legal action.
People who have written letters to their local paper about a development project, published books or produced reports, leaflets or posters, or made public statements, have received legal threats. The authors of books, websites and even student theses can be targeted. Corporations with massive resources will often respond to criticism by issuing legal threats against volunteer community groups or individuals.
In the United States these types of legal threats have been called “SLAPPs” (Strategic Litigation Against Public Participation) as they have the effect of hindering or discouraging public campaigning.
According to Free Speech Victoria,
”The most insidious form of censorship that is widely practised in Australia today is the use and abuse of the defamation laws and the threat of libel actions.”
Legal threats, even if they do not have much prospect of ever making it to court, can deter people participating on an issue, they can have a ‘chill effect' on other people getting involved and can tie campaigns up in costly legal advice and proceedings. Some industry groups and governments will press for repressive laws or use the threat of claims for damages, inquiries or existing regulations in an attempt to stifle direct action protests.
Most legal threats are just threats in the forms of official letters or public statements. They commonly use the law of defamation, common law torts or refer to the Australian Consumer Law (the old Trade Practices Act 1974 (Cth)) as a part of the threat. Only a tiny percentage of legal threats ever go to court and there are also plenty of cases of a legal threat backfiring on a company by increasing the profile of a campaign and building support for the activists.
The structure of an organisation can help determine its exposure to civil liability (being sued).
Responding to legal threats
There are a series of steps activist groups can take to deter or respond to such threats.
For detailed information:
Download a copy of “How to Face Legal Threats: A Resource Kit for Activists” which can be found at Environment Defenders Office Victoria.
The Communications Law Centre (CLC) is an independent, non-profit, public interest organisation specialising in media, communications and online law and policy. The centre conducts research, teaching, public education and legal advice.
Another useful guide is Be Careful – Not Silent: A Bush Lawyer's Guide to Avoiding and Surviving Defamation Claims A Guide for Community Political Activists by Dr Greg Ogle.
One of the best websites for support and information is the Suppression of Dissent site. This site contains an interesting article on Defamation and Free Speech.
Get a copy of the ABC Media Handbook (from your local ABC Store). This is the best, most easily understandable guide to defamation law.
The Parliament Of Australia website has a detailed list of Communications Law.
Go to Issues for activist groups (legal structures) for information about how best to structure your organisation.
Also see Case Study - The Gunns 20