Facing Down Cease and Desists Letters to get a Serious Debate
Recently I have written about quite a number of cases of bloggers receiving Cease and Desist letters sent from lawyers demanding that material be removed.
It seems to me that every time legal representatives demand the removal of published material “NOW, or we will SUE“, and anyone responds to the “Jump” demand with a “How High, Sir?” response, that blogger is allowing themselves to be the subject of unnecessary bullying. We just don’t need to be so frightened of lawyers and their missives.
“Cease and Desist” letters are just like any other letters - they are a collection of statements that are somebody’s opinion, and they may or may not be true. People like writing them because they are a cheap way to get people to comply with demands that may or may not be reasonable and they are “standard procedure”.
A rejection of a C&D does not close down the options of the writer, while an acceptance means an easy victory for the person making the complaint.
The main battle at the moment is to have bloggers taken seriously as commentators, so that there will be approaches from M’Learned Friends that involve a reasonable dialogue rather than crude demands for action NOW! I think this implies two things, both of which involve bloggers taking ourselves more seriously as a step towards making others do the same.
- The first is to do serious, considered reporting in the first place - and to take time and only publish the relevant material that we are willing to defend.
- The second is to insist that people approaching us waving bits of legal paper engage in a proper dialogue, rather than being caught in the headlights of lawyers’ letters as if we were so many terrified rabbits. Both points are to do with how we handle ourselves.
There are some straws in the wind. In the Dave Walker case, as I mentioned above, the lawyer who started out by sending threatening Cease and Desist letters has been the subject of a sanctions motion by a US Court.
In another case I was involved in this year, there was a dialogue between the senior officials of a UK political party and a blogger about alleged defamatory material; in the end a few sentences were removed, and the political party went quiet.
That at least is one step ahead from lawyers’ letters sent to bloggers from legal ivory towers.
[tags]cease and desist letters, censorship, legal threats[/tags]
Categories: All WW, Campaigns, Comment, Free Speech Campaign, News - Current Affairs, Political Blogging
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Well, Matt, here’s the thing. Having received a “takedown” (cease and desist) letter myself, I found it to be so gut-wrenchingly distressing that when Dave received his, I thought I should try to support him in whatever ways I could.
I’ve operated my website for seven years now without any problems. Among other things, its content includes a series of harmless, informative little paragraphs about gemstones and beads–their physical properties, fitness for use, and any historical lore I could find about them. I researched my paragraphs primarily in print via books on geology and minerals, with some side trips into the US government’s geological survey online info on minerals.
My letter (or email) came out of right field about a year ago from someone who sells inferior products on the web. He further has some rather shady dealings–lawsuits and such–that are easy to dig up after only a few minutes of checking. When I Googled the sentence he was citing as evidence of my “plagiarism,” I found only one link to it–my own site. Of course this was a fishing expedition. But here’s the thing: ISP’s and hosting providers, who are vulnerable in these instances, will often take down a site without checking to see who’s right and who’s wrong. They just want to avoid trouble, and they really don’t care who gets hurt as long as their own risk and exposure are eliminated. That can make it very tough to fight one of these.
In my case, I have my own server, and I was not about to take myself down. After an hour of genuine panic that included a fit of tears, rational thinking took over. I was able to prepare a strongly worded response to my tormentor. I had the good sense to copy his ISP and his hosting provider and the EFF as well. I never heard from him again. If I do, I’ll be well prepared to fight him.
What may not be as apparent, but what I now know well, is the absolute sense of panic and shock you experience when you receive one of these communications. You envision your carefully-wrought business, source of your livelihood, going up in smoke. You’re outraged at the threat, yet if you’re hosted, you may be helpless to combat it. It’s damned scary. Dave Walker was the first to receive one of these from the Brewers, and I can empathize with him absolutely. By the time the “second wave” went out, there was already a network of support and solidarity for the recipients. Dave didn’t have that, and he had to experience all of this alone.
Lawyers know perfectly well the impact a letter like this can have. The Brewers probably felt they had nothing to lose, and lots to gain, by sending them out. They misjudged, and I’m thankful for that.
@Anne:
>gut-wrenchingly distressing
Agreed. They are a shock, perhaps especially in niches that aren’t as occasionally combative as politics (which is mainly where I write).
It makes things out of balance when professionals for whom writing such letters is merely standard procedure, send them to people who have never seen such a thing before in their lives. Newspapers, by contrast, have in house counsel - who will deal with such things.
As bloggers, we are our own everything - including authors, editors, fact-checkers, marketers, and publicists; so it is all closer to the bone for us.
If we all become a bit more hardboiled in our approach, and perhaps at least learn not to react in a slightly panicky way to comply - then it will be a more level playing field.
BTW in the US you can now get “Cease and Desist” insurance:
MEDIA BLOGGERS ASSOCIATION LAUNCHES EDUCATION, LEGAL ADVISORY AND LIABILITY INSURANCE PROGRAM FOR BLOGGERS.
Thanks for the account.
Rgds
Matt