A cease and desist letter is the term that is given to those letters that are sent to people whom you believe are partaking in an activity that they shouldn’t be partaking in (e.g. defamation), usually because it represents a breach of contract or an infringement of some other right.
What is the purpose of a cease and desist letter?
A cease and desist letter will generally have three purposes:
To alert the defaulting party to the breach; and
To require the defaulting party to cease and desist the activity in breach; and
To alert the other party to the prospect of legal proceedings, including a damages claim.
Who should draft your cease and desist letter?
Given cease and desist letters are often a precursor to legal proceedings it is wise to have them drafted by a lawyer. In fact, in some instances they become a critical piece of evidence in subsequent legal proceedings, not only in relation to the allegations but also in relation to an application to have costs paid by the other party.
Can a cease and desist letter be made public?
Yes. Once you have a cease and desist letter delivered to another party, there is generally no impediment to that party making the letter public. Further, if legal proceedings are commenced, relying upon the cease and desist letter, it will, in due course, become part of the public record.
What are the usual circumstances in which cease and desist letters are used?
As referred to earlier, cease and desist letters generally follow a breach of contract or other right. Typically in circumstances involving:
trademark, copyright or patent infringement;
persons engaging in harassing or intimidatory behaviour (harassment);
persons engaging in defamatory conduct (defamation);
or former employees or business partners breaching “protection of goodwill/restraint of trade” contractual obligations (breach of contract).
What should I do if I receive a cease and desist letter?
If you receive a cease and desist letter it does not mean that you have engaged in the conduct that was alleged. However, you should not take receipt of such a letter lightly, as a failure to properly address the issues raised could result in legal proceedings being commenced against you and that’s not only annoying it’s also a major impost on your time and resources in the best of times.
You should seek legal advice urgently so that any steps that may be taken to correct the perception of, or placate, the other party can be taken in plenty of time. In some instances, particularly in relation to allegations of defamatory conduct, if you are “guilty” of the allegation, you can be the subject of a much more serious cost penalty if you don’t act quickly.