Should frivolous legal "harassment" be penalised in some circumstances?

[Martinus]

Marti, What process do you propose for deciding whether a demand letter is baseless?  Dont you require a hearing of some sort to determine that?

The court may decide that in a criminal case brought by a prosecutor.

On what basis does the Prosecutor determine that the matter is baseless and worthy of prosecution?

On the same basis as it determines whether to bring any other criminal charges.

[Neil]

There is a standard criminal scam that goes on here in norway that during the summer vacation criminals send bills to be paid on short notice to companies and organizations hoping that the summer interns will just assume that they are legit and pay them.

I'm not sure how illegal this is but it probably depends on how the bill is formulated, though I think that if you just send payment information and get paid there is nothing illegal about that.

That's what fraud is.  Fraud is illegal.

[crazy canuck]

Marti, What process do you propose for deciding whether a demand letter is baseless?  Dont you require a hearing of some sort to determine that?

The court may decide that in a criminal case brought by a prosecutor.

On what basis does the Prosecutor determine that the matter is baseless and worthy of prosecution?

On the same basis as it determines whether to bring any other criminal charges.

In other criminal charge the Prosecutor has a police investigation of some sort and evidence to consider.  In the case of a demand letter how are the police going to judge whether the demand is baseless or not?  What evidence are they going to obtain?

If you think your way through this a bit more you might see the problem.

[crazy canuck]

There is a standard criminal scam that goes on here in norway that during the summer vacation criminals send bills to be paid on short notice to companies and organizations hoping that the summer interns will just assume that they are legit and pay them.

I'm not sure how illegal this is but it probably depends on how the bill is formulated, though I think that if you just send payment information and get paid there is nothing illegal about that.

That's what fraud is.  Fraud is illegal.

Apparently not if the victim falls for the fraud and pays  - at least in whatever country Viking is talking about.

[Viking]

There is a standard criminal scam that goes on here in norway that during the summer vacation criminals send bills to be paid on short notice to companies and organizations hoping that the summer interns will just assume that they are legit and pay them.

I'm not sure how illegal this is but it probably depends on how the bill is formulated, though I think that if you just send payment information and get paid there is nothing illegal about that.

That's what fraud is.  Fraud is illegal.

Fraud would probably need to include some deception. If I just send you a bill and say pay this and you pay this have I defrauded you? Technically I just asked you to give me money, is that illegal? What is happening here is that the "fraudsters" are exploiting the natural gullibleness of norwegians in paying any bill that is sent to them on the grounds that people are nice and don't lie.

[Neil]

Yes.  A bill is a notice requesting payment for a service or good.  If you haven't provided me with a good or service, you're a fraudster.

[Barrister]

Marti, What process do you propose for deciding whether a demand letter is baseless?  Dont you require a hearing of some sort to determine that?

The court may decide that in a criminal case brought by a prosecutor.

On what basis does the Prosecutor determine that the matter is baseless and worthy of prosecution?

On the same basis as it determines whether to bring any other criminal charges.

The standard I apply to every prosecution is that:

A: there must be a reasonable likelihood of conviction; and
B: the prosecution must be in the public interest.

So I guess what CC is asking is - how does the prosecution determine whetehr there is a reasonable likelihood of conviction that a demand letter is baseless?

[Syt]

I see where Mart is coming from on this one, as it pops up regularly in German blogs.

What happens is this:

A law firm spams cease&desist letters to owners of small websites and blogs for supposed copyright infringements (because they quote a text, use a picture etc.) against the law firm's clients. The letter also comes with a fee note, usually of a couple hundred Euro.

Yes, the courts more often than not side with the bloggers/websites users in those cases, and the law firm will have to cover all court expenses. However, until then, the blogger or website owner has to carry the burden of his defense - lawyer costs, any court fees etc. And of course, the court might side after all with the law firm. That cost/risk is enough for most of the targets to just throw up their hands in frustration and play along.

By sheer force of numbers and bullying tactics, this generates a nice little revenue stream for the law firm.

[dps]

I see where Mart is coming from on this one, as it pops up regularly in German blogs.

What happens is this:

A law firm spams cease&desist letters to owners of small websites and blogs for supposed copyright infringements (because they quote a text, use a picture etc.) against the law firm's clients. The letter also comes with a fee note, usually of a couple hundred Euro.

Yes, the courts more often than not side with the bloggers/websites users in those cases, and the law firm will have to cover all court expenses. However, until then, the blogger or website owner has to carry the burden of his defense - lawyer costs, any court fees etc. And of course, the court might side after all with the law firm. That cost/risk is enough for most of the targets to just throw up their hands in frustration and play along.

By sheer force of numbers and bullying tactics, this generates a nice little revenue stream for the law firm.

Does a "cease and desist letter" mean something different in Europe?  Because over here, it's just a letter asking you to stop doing something, with some threat of taking legal action.  If you receive one, it doesn't really have any legal force (about all it does is give the sender something to show the court that he tried to settle the situation with you without taking you to court--which in no way actually address any real merits his case may have).  Many times, it's just a bluff--they're not actually going to go to the trouble of filing any claims against you.

[Syt]

The way I see it reported is basically that you get a letter saying, "Picture so and so is copyrighted by our client. Take it off your webpage and sign this agreement to not use it again. Failure to do so will get you dragged into court. Btw, here's a bill of €254.20 for our expenses in this matter - charged to you because you were the one giving cause to this procedure. Failure to pay will likewise see you dragged to court."

[crazy canuck]

The way I see it reported is basically that you get a letter saying, "Picture so and so is copyrighted by our client. Take it off your webpage and sign this agreement to not use it again. Failure to do so will get you dragged into court. Btw, here's a bill of €254.20 for our expenses in this matter - charged to you because you were the one giving cause to this procedure. Failure to pay will likewise see you dragged to court."

And people pay? 

[Martinus]

Marti, What process do you propose for deciding whether a demand letter is baseless?  Dont you require a hearing of some sort to determine that?

The court may decide that in a criminal case brought by a prosecutor.

On what basis does the Prosecutor determine that the matter is baseless and worthy of prosecution?

On the same basis as it determines whether to bring any other criminal charges.

The standard I apply to every prosecution is that:

A: there must be a reasonable likelihood of conviction; and
B: the prosecution must be in the public interest.

So I guess what CC is asking is - how does the prosecution determine whetehr there is a reasonable likelihood of conviction that a demand letter is baseless?

I don't really understand your question. In any case, prosecution must asses the facts at hand and decide whether to prosecute or not. If the assessment of facts requires expert knowledge, prosecutors can reach out to experts to get that knowledge.

This would be no different than, say, antitrust cases which also reuiqre an expert knowledge to determine whether, e.g., contacts between companies amounted to normal trade or were a criminal cartel activity.

[crazy canuck]

I don't really understand your question. In any case, prosecution must asses the facts at hand and decide whether to prosecute or not. If the assessment of facts requires expert knowledge, prosecutors can reach out to experts to get that knowledge.

This would be no different than, say, antitrust cases which also reuiqre an expert knowledge to determine whether, e.g., contacts between companies amounted to normal trade or were a criminal cartel activity.

So walk us through this Marti.  I write a demand letter on behalf of company A demanding that Person B stop breaching my client's contractual, or whatever, rights.  Person B runs to the police to complain that the letter is somehow inappropriate.

Now what?  The police cant ask me the basis of writing the letter because everything I know is protected by solicitor client priviledge.  Are you suggesting that the police undertake an investigation to decide whether my client may have an arguable case?

Aside from that being a terrible waste of public resources, lets assume that they come to the conclusion that my client's case is weak.  Wouldnt there be an incentive for my client then to simply institute its own civil proceedings against Person B to demonstrate both that it is not frivolous and to get some damages from Person B.

Now lets go back to the purpose of the demand letter in the first place.  It was to attempt to avoid litigation by giving Person B the chance to stop what he is doing.  Your system would just encourage litigation.  Very very bad public policy choice.

[dps]

Marti, What process do you propose for deciding whether a demand letter is baseless?  Dont you require a hearing of some sort to determine that?

The court may decide that in a criminal case brought by a prosecutor.

On what basis does the Prosecutor determine that the matter is baseless and worthy of prosecution?

On the same basis as it determines whether to bring any other criminal charges.

The standard I apply to every prosecution is that:

A: there must be a reasonable likelihood of conviction; and
B: the prosecution must be in the public interest.

So I guess what CC is asking is - how does the prosecution determine whetehr there is a reasonable likelihood of conviction that a demand letter is baseless?

I don't really understand your question. In any case, prosecution must asses the facts at hand and decide whether to prosecute or not. If the assessment of facts requires expert knowledge, prosecutors can reach out to experts to get that knowledge.

This would be no different than, say, antitrust cases which also reuiqre an expert knowledge to determine whether, e.g., contacts between companies amounted to normal trade or were a criminal cartel activity.

The difference is that there are already anti-trust experts working in the justice system, since illegal trusts are a criminal matter.  On the other hand, cease and desist letter often involve things like copyrights which are usually a civil rather than criminal matter, so there's no division or department in the prosecutor's office that specializes in them.  Therefore, they'd have to go to considerable expense to bring in experts just to determine if the person on whose behalf the letter was sent has a reasonable complaint.  And of course in many cases there is a reasonable complaint, so it would end up being a complete waste of resources.

[Syt]

The way I see it reported is basically that you get a letter saying, "Picture so and so is copyrighted by our client. Take it off your webpage and sign this agreement to not use it again. Failure to do so will get you dragged into court. Btw, here's a bill of €254.20 for our expenses in this matter - charged to you because you were the one giving cause to this procedure. Failure to pay will likewise see you dragged to court."

And people pay?

More than you'd think. According to an article on Zeit.de (well reputed German paper) 4.3 million Germans over the age of 14 (that's >5% of the total population) have been contacted by lawyers for copyright violations on the internet - from filesharing to posting pictures, using quotes etc. Usually they demand 500-1000€. If people ignore it, it's handed over quickly to debt collection agencies - who don't have the best reputation, either. In 2011, a study by consumer protection groups determined that 99% of the debt collection letters from such agencies were unfounded. Again, scare tactics and a large number of addressees make for a viable business model.

The German cabinet was to agree on a law proposal to curb such practices this week. However, it was vetoed by a minister who is known as copyright hardliner and is one of the strongest proponents of what is de facto a "Lex Google" - which would force commercial news aggregators (like Google News) to pay a fee to the news sources they link to/quote.