Responding to Correspondence Threatening Legal Action

You’ve received a letter or email threatening legal action. Now what? First, do not panic. Don’t immediately comply with the letter, get angry and write a fiery response, or destroy the letter in the hope that the issue will go away. You have many decisions to make on how to respond, and a cool head will serve you well. Although the correspondence will be unique to your situation and the CMLP cannot give you specific legal advice, here are some guidelines to help you determine your course of action.

1. Look carefully at the letter’s contents.

If a lawsuit complaint, subpoena, or other legal filing is attached, refer to our sections on Responding to Lawsuits and Responding to Subpoenas for guidance on how best to proceed.

2. Check to see who sent the letter.

If the letter has been signed by anyone but a judge or court official, in all likelihood you have been sent a “cease and desist” letter asking you to stop doing something, or to remove an item from your blog, online post, or website. Even if it is a lawyer who authored the letter, do not immediately assume that the letter has merit and that you are in the wrong. Instead: a. Determine whether the sender has specified a time by which she expects you to comply with her wishes. If you have a reasonable amount of time to respond, keep going down this checklist. If the sender expects immediate compliance, notify the sender that you received her correspondence, are taking it seriously, and need time to investigate the claims she has made. Give her a date (one providing you with a reasonable amount of time to figure out your response) when you will respond further—and keep to it. b. Keep note of when you received the letter; good record-keeping will be important in the event that the sender files a lawsuit against you. If the letter has been signed by a judge or court official, you most likely have received an order mandating some action on your part. You should immediately comply with order, as disobeying a court order can have negative repercussions. After complying with the order, you have three choices: do nothing more, appeal the order, or, if a hearing is scheduled, prepare for the upcoming hearing in which you will have an opportunity to be heard and to present evidence. Refer to our sections on Responding to Lawsuits and Finding Legal Help in order to decide which choice is best for you.

3. Review the substance of the letter or email.

See if the sender has clearly explained the legal basis for her arguments that you need to stop the activity described. Other sections of our legal guide, especially the Risks Associated with Publication and Intellectual Property sections, may help you understand the terms used in the correspondence. If the sender does not provide a legal basis for her claims or if you are unable to understand what it is she is saying, you should request clarification.

Determine what law the sender is using to support her arguments. If the law is from a country that’s different from the one you reside or work in, it likely does not apply to you. However, given that such determinations often involve complex legal analysis, you may want to check with a lawyer to ensure this is the case before disregarding the letter. If you’re wrong, your response, or lack thereof, may work to the sender’s advantage should she bring a lawsuit against you. Refer to our section on Finding Legal Help for resources to use in making this determination.

Determine whether the letter relates to material posted on the site by a user.

  • If the letter demands that you remove material in a user post because the material is defamatory, private, misappropriated, or negligent, you are likely to be immune from liability under section 230 of the Communications Decency Act. See our Primer on CDA 230 for more on this subject.
  • If the above does not apply, or if the material was posted by you or your colleagues rather than by a user, you will need to respond differently as outlined below.

4. Review the situation and the facts

Once you have a sense of why the correspondence was sent, write down everything you know about the situation, including: when you received the correspondence, the nature of your actions that triggered the sender’s letter, and any relevant interactions you’ve had with the sender. However, if the sender sues you for not complying with her letter, you may have to provide this summary, so keep to the facts only and don’t include your opinions about the situation. The act of making the summary is valuable for you to evaluate your position and figure out your next steps because everything is fresh in your mind and later you may forget certain events; it will also help to focus your conversation with a lawyer (should you wish to consult with one) or be a good starting point for your own legal research; and finally, as you write, you may start to get a sense of the claim’s validity.

5. Determine how best to proceed.

In the course of your research and fact gathering, you will probably come to one of three conclusions:

The law protects your activity: Go ahead and draft a letter or email back to the sender explaining why you think your actions are appropriate. Stand your ground, but be polite as abrasive language is likely to result in inflaming the recipient and making the situation worse. Explain to the threatening party that you will be adding the sender’s letter or email to the CMLP Legal Threats Database--and do so! It often helps to ask someone you trust to review and edit your letter before you send it.

The law does not protect your activity: If you determine that your activity is not legally defensible, stop it immediately and do not wait for the sender to file a lawsuit against you. In many cases, if you do not cease the activity you may be found to have “knowingly” or “willfully” violated the sender’s rights, which will likely result in larger damages or penalties. Do not ignore the threat on the assumption that no one would sue you because you don't have a lot of financial assets, as recent changes to bankruptcy laws may leave you vulnerable. Oftentimes, acquiescing to a legitimate request will make the threat go away. However, if the sender demands payment of some kind, we strongly advise you to review the section on Finding Legal Help.

You just can’t tell what the law says: Don't be surprised if you are unable to determine what course of action to take. If you have already requested clarification from the sender and are still unable to determine whether their legal claims are valid, you should review the section on Finding Legal Help for additional guidance.

6. Consider whether you should notify your insurance company that you have received a legal threat.

You may be covered by insurance if you are found to be financially liable for your online activities. Consult the section on Insurance for more information.

7. Add the sender’s letter or email to the CMLP Legal Threats Database.

This is an important action because creating an entry in the Legal Threats Database will help others who receive similar letters know that they are not alone and assist them in weighing their options regarding how to respond. You will also allow the CMLP to track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

 

 

Last updated on January 30th, 2008

   
 
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