how to face legal threats - brian martin · 2010. 2. 21. · affects your campaigns can help you...

IT IS ALL too common for communitygroups to receive veiled or actual legalthreats. In the US these are called Strategic

Lawsuits Against Public Participation(SLAPPs) – legal threats deliberately meant tohinder public campaigning.

The good news is that only a tiny percentageof threats ever proceed beyond a letter.

Legal threats can, however, be a powerfuldeterrent to people participating in democraticdebate on important issues. They can also havea ‘chill effect’ on potential or existingsupporters. So it is important to know how torespond.

Some reasons why companiestake legal actionTo deter activism. Legal threats might nothave much prospect of winning but they canscare people at critical times in a campaign orabsorb a lot of time and energy.

To create publicity. Occasionally you mayhear about a legal threat through a mediacomment or at a public meeting. These areusually designed to shut you up at a meeting or

How to face legal threatsA RESOURCE KIT FOR ACTIVISTS

Environment campaigners and communityadvocates can face legal threats, either real or

bluffs. Many people are unaware of steps they cantake to defend themselves.

This guide shows how to deter or safely handlelegal actions.

How to face legal threats 1

to stop journalists from running a story. It israre that these ever progress any further.

To distract community groups. Some legalthreats may be targeted to weaken and distractyour organisation at a critical time or over anissue on which there is division. Some, such aspressing for legal costs over lost court cases ordamages actions, can be an attempt tofinancially penalise your organisation.

To respond to your campaign. Actions suchas an injunction might be a response to yourlaunch of a high profile direct action or otheractivity. A legal counter attack will shift thefocus to the court room and, if successful, end

your protest which may have been generatingtoo much good media for their comfort. Otherlegal threats can be a response to a statementof yours where your opponent feels that noresponse will ensure that your statement isassumed to be true.

While not common, some legal actions are acountersuit to a legal action you have launched.

To deter and criminalise direct action. Someindustry groups and governments will press forrepressive laws in an attempt to stifle dissentand direct action protests in particular. Thiscan relate to provisions such as trespass laws,damages, inquiries, using regulations toprevent access for protesters or media.

How to deter legal attacksThere are some steps you can take to deterlegal attacks and prepare you to respondeffectively if you ever receive one. Rememberthough that only a tiny percentage of legalthreats ever go to court.

Be aware of your legal rights. A basicunderstanding of your rights and the law as itaffects your campaigns can help you avoidlegal mistakes and recognise common legalthreats for what they are. Most legal threatsrely on ignorance of the law for their power. Ifyou know the law sufficiently well to spot abluff you are more likely to be confidentenough to go public.

Be prepared to go public. The worst effect alegal threat can have is to scare you intosilence. The best defence is to go public withas many allies as quickly as you can. Mostlegal threats evaporate when subjected topublicity and legal scrutiny. Once a legalthreat is made public, the news will spread farand wide. Companies know that e-mail storiesaround the world have the potential to causeproblems elsewhere. If a company makinglegal threats is global, make sure activistsgroups around the world know about it.

Establish your profile and access to legalresources. Legal threats are commonlytargeted at individuals and small groupsperceived as having few resources and nodirect access to legal support. If companies

Club Med defamation threat

In 1993 the Byron Environment Centre(BEC) in northern New South Walescommissioned a report on the effects ofa proposed Club Med resort at ByronBay. Club Med obtained a draft copy ofthe report and threatened legal actionunless defamatory material wasdeleted. BEC representatives met withClub Med who refused to identify thespecific points of concern.

BEC then distributed a brochureinforming residents of their concernsabout the project and denouncing thelegal warning. Club Med’s solicitorswrote to the BEC claiming the leafletwas defamatory and demanding itswithdrawal and an apology within fivedays.

The BEC sought legal advice, whichconfirmed they had no reason to worry.The BEC held a media conferencewhere they announced they would notissue any retraction or apology.1

Nothing more was heard from Club Medon the matter._________________________

1. Byron Environment Centre, “BEC refutes Club Med’sclaim of defamation”, Press Release, 4 June 1993.

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2 Defend the Defenders

and other opponents know you have access togood legal advice they will know you will notbe a pushover. If your group is regularly in themedia or active in the community, potentiallitigants will also know that they will have todeal with you in the court of public opinion.

Develop a ‘sin bin’ policy. Companies andgovernments often try to ‘divide and conquer’by developing relationships with some groupswhile playing tough with others on the sameissue. It will help if all groups agree not towork with companies who are in any wayassociated with legal threats or other forms ofharassment against any like-minded group.

Be ready for court proceedings. Should thecase actually proceed to court both parties areentitled to seek ‘discovery’ – accessingdocuments relevant to the issues before thecourt. It is not automatic to gain access to youropponents’ documents, but it is possible. Youhave to persuade a court as to why particulardocuments are relevant. You may be able tosubpoena company executives as witnesses.You are entitled to cross-examine witnessesyour opponent might put forward.

All these factors make most companies waryabout proceeding to court, correctly figuringthat they have more to lose than you. There areexamples of legal action backfiring badly on acompany.

What is defamation?Defamation commonly refers to an unjustifiedand damaging attack on the good reputation ofan individual or company.

This section is condensed from apresentation by Bruce Donald “Safe speechand managing the media”. The full text is atwww.edo.org.au/edonsw/publications/safspch2.htm

The best place to start learning how to speakwith safety is the ABC All-Media LawHandbook. This booklet explains in thesimplest terms the scope for free speech underour media laws. It is important to rememberthat defamation laws vary from State to State.

There are some simple points aboutdefamation. To begin with, not all criticism of,or disagreement with, people is defamatory.You only defame somebody when you publish

something which lowers their reputation in theminds of ordinary people who hear, read or seethe publication. This permits a wide range ofordinary analysis and criticism of what peopledo in their various pursuits that will notconstitute defamation.

The liability is only for publishing to otherpeople. You can write confidential letters ofthe most severe criticism direct to the personsaying what you like, taking care to ensureconfidentiality. If they publish such a letter tosomeone else, you are not liable for that.Obviously you can’t leak such a letter!

Next, you only defame when you identify aspecific person (and the person has to bealive!). This means that a defamatory attack,for example on the ‘chemical industry’ forpoor standards in carcinogenic side-effectresearch, without naming any company, is notdefamation.


Four defamation defencesThe law permits defamation in the interests offree speech and the operation of a democraticsociety when the defamation is:• true and relates to a matter public

importance;• a fair report of what is said in Parliament or

in a Court;• the honest opinion of the person making the

statement; or• protected by qualified privilege.

Truth Relating to a Matter of PublicImportanceThis is hardest to prove, so it is better to useother defences against defamation if possible.

Leaked documents provide a good exampleof the weaknesses of the ‘truth’ defenceagainst defamation. These documents canprovide vital campaign information yet are ofno legal value unless it is possible to provetheir validity by evidence from a personclosely associated with them.

The only documents which stand on theirown are official registered documents, titledocuments and company searches. Even astatutory declaration or an affidavit does not‘prove itself’ – it does not stand alone. It isonly admissible if the person who swore itconfirms the truth of its contents in Court.

This is very important in campaigningbecause documents are often leaked andpeople can wrongly assume that suchdocuments can be used with absolute safety.

The other important dimension of the truthdefence is that it is often a fine line betweenpublished material being comment andtherefore defensible as honest opinion and onthe other hand constituting a statement of factwhich can only be supported if it is true.

To say ‘...John Howard has no commitmentto good environmental laws’ is a statement offact you couldn’t prove to be true. He willalways say he has, of course. On the otherhand to say ‘...if John Howard thinks thispackage of new environmental laws is the wayto go, then I reckon he’s in cloud cuckoo land’is a personal opinion, not a statement of factand therefore, a defensible opinion.

Nonetheless proving the truth of adefamatory statement is difficult.

A checklist tosupport individuals

If you hear of someone who hasreceived a legal threat there are somesimple steps you can take:

4 See whether they have obtainedlegal advice. If you know a sourceof good free legal advice, put themin touch as soon as possible.Some people avoid getting legaladvice because they fear it willcost them a fortune.

4 Reassure them that only a tinyfraction of threats ever go beyondthe first letter.

4 Let them know that they are notalone – many groups havereceived legal threats and manyindividuals as well. Let them knowthat legal threats are a commontactic that can silence critics ifrecipients think they are isolated.

4 Never dismiss concerns. Do notsay ‘it’s nothing to worry about’.

4 Never try to push them to dothings they don’t feel comfortabledoing. While going to the mediamight be a good response somewill see it simply as anothersource of stress they don’t need.Respect their judgment.

“You only defamesomebody when you

publish something, whichlowers their reputation in

the minds of ordinarypeople who hear, read or

see the publication”


Fair and Accurate ReportThe law in the interests of an open societypermits absolute privilege for politicians tospeak within Parliament and for information tobe presented in Courts. The law naturallyextends this principle to protect a fair andaccurate report of this privileged material.

This is a very powerful defence and anyreview of the daily press will see it constantlyused with references such as ‘it was revealedin court’, ‘as said in Parliament today’.

It can be of vital assistance in raisingmatters of environmental importance whereopposition and independent members ofParliament consider that the matter of concernis of sufficient importance that they should usethe privilege of Parliament even wheresomething may not be able to be factuallyproven as true. So a good way of using adocument which is hard to prove, but forwhich there is a basis for supporting itsauthenticity, is to convince an MP that itshould be tabled in Parliament.

Great care is still needed in reporting Courtand Parliamentary proceedings because theprivilege is ‘qualified’. This means that anyreport must be fair and accurate.

For the environmental campaigner, it meansthat where you are using Parliamentary orCourt sources, you must stick to the materialprecisely and not depart from it. This of courseincludes not being selective of the material.The fairness of the report requires that allaspects of it be covered so that for example ifthe report includes a denial of certain facts youcannot simply quote the facts set out in theparliamentary discussion.

Another crucial element of protected reportis that the protection does not permit theperson who made the statement in Parliamentor Court themselves to come out and repeatthat statement outside in the public arena.

Honest Opinion The ‘honest opinion’ defence is moregenerally called the fair comment defence.This is a misnomer as the strength of thisdefence is that your comment need notnecessarily be fair at all.

The common law of free speech in a diversesociety permits people to express theiropinions however unreasonable or biased.

So, you can freely say that it is absolutelyoutrageous and contemptible for ERA to bebuilding a uranium mine in the middle of aWorld Heritage National Park where thetraditional owners disagree.

You can say that the approval by theMinister for the Environment of theHinchinbrook Project, the biggest coastalresort development on the entire east coast ofAustralia, in a National Estate area andadjacent to a World Heritage area, is stupid,appalling and wrong.

Mining company threatensaction over thesisIn 1993 an honours thesis by a studentat the University of Tasmania,Alexandra de Blas, found high levels ofheavy metals in table fish beingconsumed by residents of Strahan. Onepossible source of the pollutants wasmine tailings from the Mount Lyellcopper mine which were dumped intothe Queen River which then flowed intoMacquarie Harbour.

Plans to publish the first classhonours thesis were delayed when theMt Lyell Mining Company threatenedlegal action against the university if thethesis was left on the shelves of thelibrary, let alone published.1

The upper echelons of the universityrefused to support its publication.Finally, the thesis was published by theCentre for Independent Journalism atthe University of Technology in Sydneywith a blaze of publicity about the legalthreat by the company.2

No legal action was ever taken._____________________1. Wendy Bacon, Preface in Alexandra De Blas, The

Environmental Effects of Mt Lyell Operations onMacquarie Harbour and Strahan, Australian Centre forIndependent Journalism, May 1994 page i.

2. Bruce Montgomery, “Thesis claims defame: miningcompany threatens legal action over pollution findings”,The Australian, 1 June 1994; Moya Fyfe, “Acid waterfears loom”, The Sunday Tasmanian, 29 May 1994,page 1, 6&7; Moya Fyfe, “Concern at uni stand on MtLyell thesis”, The Mercury, 27 May 1994, page 6;“Demand for full study on harbour fish woes”, TheMercury, 30 May 1994; Editorial: “Making harbour fitstate image”, The Sunday Tasmanian, 29 May 1994.

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These may be statements of the honestly(even if unreasonably) held opinion of aperson and even if they do defame the peopleidentified by the comment, they are completelydefensible.

There are two key problems with the‘honest opinion’ defence which mean thatpeople should not have a false sense ofsecurity about using it.

First it must be a statement of opinion andnot in reality a statement of fact defensibleonly as truth on a matter of public importance.

This is a fine distinction which even hasQCs guessing, so be careful.

It is a statement of fact to say ‘the Ministeris dishonest’. It is a statement of opinion tosay, ‘It would be very dishonest for theMinister to say the mine will not significantlyaffect the endangered birds when faced withthe evidence before him that they will die inlarge numbers’.

Secondly, the statement must be based onfacts which are either set out in the samepublication as contains the comment or elseare well known to the audience.

Qualified PrivilegeIn the interests of protecting the essential flowof information, a limited or ‘qualifiedprivilege’ is sometimes allowed by the law.They are circumstances where the publisher orspeaker has a duty to provide information on asubject to a person who has an interest inreceiving the information. The duty may be amoral or social duty as well as a legal duty.These circumstances can be important inenvironmental campaigns.

The best cases covered by this are confinedcommunications such as letters where thewriter and the recipient are sharinginformation on a subject of importance for oneor other of them.

Examples of this are submissions toMinisters or officials at local councils.

If you send your submission to that personyou don’t have to be able to prove the precisetruth of defamatory material it contains unlessperhaps the claims made are wild assertionswith no relevance or clearly factually wrong.

Qualified privilege will be defeated as adefence if the publication was malicious, forexample, not for the purpose of contributing tothe debate on the issue in question.

Another aspect of the qualified privilegedefence is the limited so-called public interestqualified privilege defence involving mattersof major governmental public importancewhere the publisher has acted reasonable underquite strict criteria. However the publicationmust be ‘reasonable’ and ‘not actuated bymalice’.

The ‘reasonableness’ test set out by theHigh Court is very strict, namely that conductwill not be reasonable unless the publisher hadgrounds for believing the defamation was true,took steps to verify the accuracy of thematerial, did not believe the defamation wasuntrue and sought a response from the persondefamed and published any such response.

Eight tips to avoiddefamation1. Avoidance is the best defenceDealing with any legal threat, no matter howspurious, takes time and causes stress. The beststrategy is not to defame people at all. Thismay mean not publishing something you knowto be true or it may mean calling for an

Eight tips to avoiddefamation

4 Avoidance is the bestdefence

4 Understand the basics ofthe law

4 Play the issue not theperson

4 Choose your wordscarefully

4 Act with good intentions4 Know your facts4 Think about your audience4 Create checks and

balances


investigation into a critical incident withoutattributing blame.

It may mean refusing to comment until youare certain of your information or until you getlegal advice. If you are worried get a lawyer tocheck the material.

2. Understand the basics of the lawUnderstanding the basics of defamation andother key laws that could affect yourorganisation is a good place to start.Remember these basic things:• The truth may not be enough.• Inferring a crime has been committed can be

defamatory.• Repetition is still defamation.• Public figures can still be defamed.• Inferences and innuendoes count.

3. Play the issue not the personAvoid abuse and name-calling. Respect themotivation and views of your opponents asbeing genuinely held and confine yourcomments to the issue. Imagine you were intheir position and how you would feel readingyour statement. It can stand you in good steadif you and your group consistently play fairand avoid personalising the issue.

4. Choose your words carefullyMost threats of defamation againstcampaigners originate from media releases,newsletter articles or media interviews. Hereare some simple tips.• Avoid sensationalism. Don’t overstate your

case for the sake of trying to get a headline.• Qualify your statement if necessary.

Reflect the evidence you have rather thangeneralise.

• Footnote key references.

5. Act with good intentionsDo you dislike the person you are criticising?Are you feeling angry about something theyhave said or done? Do you wish them ill? Talkthe issue over with someone else. Good faith isan important element of the defence and goodfaith includes not acting out of malice.

6. Know your factsBe confident of the origin of your facts. It isalways best to rely on primary sources as far aspossible, rather than on someone else’s report.

Forest Friendly Timbers Book

In April 1999, Alan Gray and Anne Halllaunched their book Forest FriendlyBuilding Timbers which outlinesalternatives to native forest timbers.

The National Association of ForestIndustries (NAFI) dispatched legalthreats to the authors and BBCHardware, which was selling it. NAFIclaimed the book contained false andmisleading information and was inbreach of the Trade Practices Act.1

Following the legal threat, BBCHardware withdrew the book from sale,which pleased NAFI.2

NAFI’s success was short-lived.After obtaining quick legal advice, theauthors went public. After mediacoverage of the threats and questionsabout whether the threats themselvesmight be in breach of the TradePractices Act, Australian Competitionand Consumer Commission (ACCC)Chairman Professor Alan Felsannounced that the ACCC mayinvestigate the legal threats made byNAFI.

Suddenly NAFI was on thedefensive. National media coveragefocused on the possibility that NAFImight be investigated.

In the weeks of coverage thatfollowed, the book got publicity ofwhich most authors dream.

While the ACCC decided not topursue a formal investigation of NAFI’slegal threats, the small booklet hadturned into a bestseller. NAFI has notmade legal threats against anyoneelse in the years since.

_____________________________

1 Dr Robert Bain, “Forest Friendly book untrue andmisleading”, National Association of Forest Industries,6 April 1999.

2 Dr Robert Bain, “NAFI welcomes BBC decision toremove book from sale”, National Association forForest Industries, 8 April 1999.

CASE STUDY


Time spent on research is better than timespent worrying about a legal threat.

7. Think about your audiencePut yourself in the position of a reader of yourdocument or statement – how would they reactand what would they make of it? Always tryand put yourself in your opponent’s positionand ask ‘would I be upset if someone said thisabout me?’.

8. Create checks and balancesCheck everything – twice. A good habit is toget another person to check your material.Invite them to be critical and listen to theircriticism. Ask them what they think it means.If in doubt, leave it out.

Establish a procedure for vetting writtenstatements prior to publication. Someorganisations have a policy that all mediastatements are checked by someone else – forcontent, spelling and legal risks. This doesn’tneed to be a time consuming and bureaucraticprocess.

Some organisations have an arrangementwith a lawyer for checking statements that maybe cause for concern.

What to do if your groupreceives a legal threatWhen you open the letter threatening legalaction against you, you will probably have asinking feeling in your stomach. Sit down,take a few breaths and remember that the letterin your hand is probably the first and last youwill ever hear from the opposing lawyers.Remember only a tiny fraction of threats evergo beyond the first letter, so don’t panic.

The letter will probably refer to a specificaction, media release or publication where youare supposed to have defamed the lawyer’sclient. Quickly get a copy of this if you can. Ifit relates to a comment made on radio or TVget a tape of it.

Immediately start a file into which you putall relevant material. Give a copy of thematerial to your lawyer, not the originals.

Talk to your closest colleagues and let themknow about the threat and ask if they know ofanyone else who has received one as well.Sometimes a few people will get letters at the

same time. If so, organise one person tocontact your legal adviser.

If the threat relates to a statement you madethat was published in a media outlet, contactthe media organisation and see if they receiveda threat as well. If a statement was publishedin a newspaper or on radio or TV, thepublisher or broadcaster is also liable for anydefamation that occurred.

Defamation threat vaporiseswith evidence

In September 1993 the TasmanianGreens, the Australian ConservationFoundation and The WildernessSociety released a letter fromTasmania Police clearingenvironmentalists of involvement in theBlack River bomb hoax and indicatingthat there were rumours in the localcommunity that it could have beendone to discredit environmentalists.1

The Forest Industries Association ofTasmania (FIAT) subsequentlythreatened defamation action unlessan apology was issued.

They claimed that at no time didFIAT “blame any person for the bombhoax incident”.2

However, the Executive Director ofFIAT had stated in an interview onABC TV “that action is entirelyconsistent with what the Earth Firstpeople have indicated they areprepared to do”.3

After the groups wrote back toFIAT’s lawyer citing the transcript ofthe ABC interview, nothing more washeard from FIAT._________________

1 The Tasmanian Greens, The Wilderness Society,Tasmanian Conservation Trust, “Bomb Hoax revealedin police report: democracy suffered from anti-greenstunt”, 9 September 1993.

2 Dobson, Mitchell and Allport, Letter to TasmanianGreens, The Wilderness Society and TasmanianConservation Trust, 17 September 1993.

3 Mark Addis, ABC TV News, Thursday 11 March 1993.

CASE STUDY


One of the telltale signs of a legal bluff iswhere they threaten legal action against theperson who made the statement but not thepublisher or broadcaster. If this is the case youcan relax a bit – it is a signal they want toscare you but don’t want to alienate the mediaorganisation. If they proceed, you could pushfor the media organisation to be included.

A checklist for groupsPublic statements policy4 Clarify who is authorised to speak

publicly for the organisation.4 Have a procedure to check draft

media releases.

Training4 Make sure that all people who may

make public statements – mediareleases, speaking at publicmeetings, writing articles, editingmagazines – attend training coveringdefamation law and how to handlelegal threats.

Legal advice4 Ensure you have someone on the

board of your organisation who haslegal skills.

4 Develop a good working relationshipwith one or two individuals who canoffer you good and quick legal advice.

4 Threats could come via mediarelease or public statements, so haveafter hours numbers for your legaladvisers. Don’t wait to get advice.

Offer support4 If you hear of someone from another

group who received a legal threat fortheir public advocacy see what youand your organisation can do toprovide moral, legal and financialsupport.

Incorporation4 Become an incorporated

organisation. This limits the exposure

of the assets of individual members,not necessarily the directors, to anominal amount, usually $20.

Directors liability insurance4 Directors liability insurance can

protect members of the board or theexecutive from being personally liablefor damages awards against theorganisation. These policies don’tcome cheap and are usually in therange of $5000 per year.

Defamation insurance4 It is possible for individuals and

organisations to obtain insurancecoverage for defamation actions(either as a separate policy ortogether with directors liabilityinsurance). This can be expensive.

Sponsorship issues4 Will you enter into relationships with

companies who make legal threatsagainst other groups? If your groupalready accepts sponsorship or sitson corporate advisory panels whatwill you do if the company makeslegal threats against other groups orindividuals. Will you say nothing,withdraw in protest, make a publicstatement or keep your commentsprivate? Preferably make anagreement with other groups workingon the same issue that you will notwork with or accept sponsorship fromwith companies who harass otherlike-minded groups.

“Remember only atiny fraction of threats

ever go beyond thefirst letter, so don’t

panic”


Organise a meeting with your legal adviser– the sooner the better and that same day if atall possible. The less time you have to worryabout the matter, the better. Fax them the letterand any relevant background material.

Investigate whether the person or companymaking the legal threat has done so before. Ifthey have made a previous threat, find out asmuch as possible – what the threat was about,when it was made, whether there was mediacoverage of it, whether they ever went beyondthe first letter etc. This will be usefulbackground for your legal adviser and inplanning any media exposure on the issue.Check to see whether other legal threats havebeen made against media outlets, governmentagencies or public servants.

Courts are increasingly aware of thepotential for lawyers to abuse the processes ofthe courts by initiating legal claims withoutever intending to proceed with them. This is anissue that the courts and the Law Society,which regulates the activities of lawyers, takesseriously. If there is evidence of a pattern oflegal threats from a particular companythrough its lawyers you may have grounds fora complaint. This would need careful researchand some legal advice.

When you meet with your legal adviser, talkthrough the process and timing of respondingto the threat and your possible media strategy.Keep notes of your meeting. Usually yourlawyer will write a letter back disputing thatthe statements amounted to defamation,declining to offer an apology and sometimespresenting any information that clearly refutesthe claims they make. Usually that is the endof the matter.

The media strategy for every situation isdifferent but as a general rule you have little tolose by going public.

Look for opportunity in the threat. With asmart response, you can turn a legal threat toyour advantage, allowing you to state yourcase again, gain public sympathy and deteryour opponent and possibly others fromresorting to legal threats again.

Getting legal adviceTry to ensure that you have people with legalskills on your board and if you have areasonable budget set aside some funds forlegal contingencies. For smaller groups,especially those in rural and regional areas, itis harder to gain access to legal advice. Hereare some suggested steps.

• Be as self-reliant as possible. Increase thebasic legal understanding of the key peoplein your group. This should include some ofthe basics about possible charges for civildisobedience protests, arrest procedures,gathering evidence and defamation law.You will then have a better understanding ofthe specific issues on which you may needspecific legal advice.

• Recognise there can be occasions whensome things are best done by you.

Greenpeace sued for damages

In March 1991 Greenpeace attemptedto disrupt the seismic testing programbeing conducted for BHP by the shipMV Western Odyssey. The seismicprogram was being conducted in theSouthern right whale calving groundsof the Otway Basin off the Victoriancoast.

For several days Greenpeacesuccessfully disrupted part of theprogram and gained national mediaattention for the issue of oil explorationaround Australia’s coast.

BHP then sought an injunction undersection 45D of the Trade Practices Actpreventing Greenpeace, its vessels oremployees from approaching thesurveying vessels.

BHP subsequently dropped itsactions following a public outcry andtrade union dissatisfaction with BHP’sactions.1

_____________________

1 Greenpeace Australia, “BHP vs Greenpeace – Abattle for the future”, Briefing Paper Number 1,May 1991; Greenpeace Australia, “Section 45D ofthe Trade Practices Act – its history and the futureimplications of BHP’s attempt to extend itsapplication to environmental groups”, BriefingPaper Number 2, May 1991.

CASE STUDY


If, after getting some advice, you decide toplead guilty to a minor charge and want tomake an impassioned plea to the magistrate,you may be better off without a lawyer.

• Establish contact with your localEnvironmental Defenders Office. Somerun basic training courses that can be useful.While they have limited resources, oftenthey can given you quick advice over thephone or direct you to someone who mayhelp on a free or reduced rate basis.

• Legal decision making. Establish how andwho will make decisions about legal caseswithin your organisation. Legal actionsoften work to strict deadlines so you won’tnecessarily have time to wait for the nextmonthly meeting of your group.

• Be clear about why you are doing it andwhen to stop. If you initiate a legal action itis worth thinking about why you are doingit, what you can (and can’t) achieve throughlegal action and conditions under which youwould decide to give up. Never commence alegal action unless you are well prepared. Ifyou are defending a case, it is worthknowing what you can influence and whatyou can’t.

• Find someone who can give free legaladvice. There are many lawyers who willhappily provide advice to environmentalgroups on a free or reduced rate. If you askfor, and get, free legal advice, make sureyou have a good reason if you choose toreject their advice.

• Think laterally. For example, if you are ina small rural town and there are no friendlylawyers remember you can often get goodlegal advice over the phone or via e-mail.

• Recognise that lawyers are busy peoplewhose time is valuable. Give them as muchadvance warning as possible and keepurgent requests for when it is truly urgent.

• Be up front about money. Some lawyerswill give free legal advice on issues close totheir hearts. Others will do work if youcover any specific costs such as copying,

filing charges etc. Others will do work on a‘no win-no fee’ basis which means that ifthere is a costs award they get paid for theirtime if not they don’t. Be aware though thatthis means they are most likely to pursueaspects of your case(s) that have mostchance of success. Some will offer discountrates but be aware that cheap rates can mean$100 per hour. Some offer a first meetingfree and then bill for subsequent time.

Wilderness Society invoiced

In September 1992 conservationistswere campaigning to stop the blastingof the Exit Cave quarry in the WesternTasmanian World Heritage area. TheFederal Government, havingannounced the closure of the quarry,was about to allow it to reopen withanother ‘rehabilitation’ blast. The holesfor the explosive had been drilledready for the blast which wasscheduled to be loaded the next day.

Overnight a small group ofWilderness Society supporters visitedthe quarry and filled the holesrendering it impossible to load theexplosives. This bought vital time inthe campaign. Subsequently theFederal Government forced theclosure of the quarry without allowingadditional blasts.

Two weeks after the holes werefilled the solicitor for the quarryoperator sent an invoice for $23,000 tothe Wilderness Society along with aletter threatening legal action if it wasnot paid1. The Wilderness Societyresponded by sending an invoice for aslightly larger amount but offering tocall it quits if the quarry operatordropped their demand. The quarryoperator took no further action._____________________

1 C.A. Johnston, Munnings and Co to The WildernessSociety, 9 October 1992.

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• Understand legal costs. Be aware that mostlawyers record details on their timesheets ofeverything from phone calls you make tothem to photocopying etc. The more of thebasic legwork you can do the better – itmeans you can use lawyers for legal advicerather than things you could do, such asphotocopying.

• Keep information. Collect as muchevidence or useful information as possibleyourself and keep the file in good order. If itis vital information keep back up copies.

• Identify a lawyer liaison person. As far aspossible try to have one person who doesthe liaison with the lawyer on the case – or asmall, well co-ordinated group. It isfrustrating and a waste of time if a lawyeroffers free advice only to have to explainmuch of the same information to a parade ofchanging faces or get half a dozen phonecalls all asking the same questions.

• Thank your lawyers. In whatever youthink is the most appropriate way.

• Create a legal budget. Put aside a legalbudget for training and emergency legaladvice. If you don’t use it that’s fine butunless you budget for it you will thensimply add financial worries to legal ones ata critical time.

RESOURCESThe Australian network ofEnvironmental Defenders Offices(EDO)

The website — www.edo.org.au — hasthe contact details and the office hoursfor all the EDOs – there is at least oneoffice in each State and Territory.

Environmental Defenders Office, ANSW Guide to Non-violent Action, theEnvironment and the Law, 2nd edition,Sydney 1998. $20

This excellent reference, while writtenspecifically for NSW, has lots of usefulinformation for campaigners anywherein Australia. It covers laws relating tonon-violent action, the process andaftermath if you get arrested, and thebasics of court hearings.

Environmental Defenders Office,Defending the Defenders: Protest,the Environment and the Law,October 1998. $20

This covers some of the backgroundissues such as the global threats toenvironmental advocates and some ofthe steps that can be taken to prevent ormitigate harassment.

These publications are available from:Environmental Defenders Office,Level 9, 89 York St Sydney 2000.Fax (02) 9262 6998 or order throughwww.edo.org.au

Australian Broadcasting Corporation AllMedia Law Handbook: Everythingyou Wanted to Publish but wereAfraid you’d be Sued, Sydney, 2001.

This is essential reading. It is the bestbasic text for beginners on defamationlaw in Australia. It is readily availablefrom ABC Shops for $7.95.


how to face legal threats - brian martin · 2010. 2. 21. · affects your campaigns can help you...

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