Cease and desist order Australia: Things you need to know

What is a cease and desist order?

A cease and desist order is a legally enforceable order used to formally require discontinuance of activities that are deemed illegal, harmful or malicious.

Cease and desist orders may be issued by government agencies and the courts and acts as temporary injunctions before trial. In Australia, this is used to stop parties from carrying out illegal activities on government land or prevent businesses from operating without a license or permit. 

What is a cease and desist order used for?

Cease and desist orders are mostly used in the area of intellectual property, specifically with the protection of copyright, trademark or patent from infringement. Other basis for a cease and desist order would be to protect an individual or business from harassment, defamation, or operating a business without a license.

Grounds for a cease and desist order

A cease and desist order can be issued under the following grounds. If any of these behaviours occur, an order for final cease may be issued to protect the victim.

Impersonating a brand

A cease and desist order can be used to protect protected work from copyright infringement. This could include impersonating another business, trademark infringement, using similar branding or engaging in false advertising. 

In the context of impersonating a brand or trademark, such an order would be issued to an individual or business engaged in copyright and trademark infringement (e.g. using the name or likeness of the brand without permission) in a way that could confuse consumers. 

Non-compliance can be subject to legal action, with the letter acting as a last resort after other methods, such as negotiation, have failed. It is important to note that this is not a finding of guilt, but rather an involuntary order to stop any further copyright infringement.

Actions causing financial harm

In Australia, a cease and desist order may be issued to an individual or company that is behaving in a way that is financially harmful. This order requires the recipient to stop the behaviour immediately and can also impose restrictions on future activities. 

Regulatory bodies such as the Australian Securities and Investments Commission (ASIC) can issue these orders. Prompt compliance with this order is essential, as failure to do so can result in significant penalties, including fines and jail time. 

In some cases, a court may also appoint a receiver to take control of the company's assets. cease and desist orders are serious legal matters, and should always be handled by experienced legal professionals.

Actions causing physical harm

In Australia, a cease and desist order can be used to stop physically harmful activities including, but not limited to any of the following:



• Defamation, Slander or Libel
• Stalking 
• Harassment
• Any forms of domestic violence

An order can be issued by a court or by the police. If the person does not comply with the order, they may be arrested and charged with a criminal offence.

Cease and desist letters

A cease and desist letter is a formal legal notice to enforce an individual's request to stop the specified illegal and harmful activities. The letter works as an initial warning and a written notice of possible legal consequences if the sender’s request/s is ignored.

Cease and Desist letters are usually last resort options because opting for court proceedings can be expensive and time-consuming. 

In Australia, a cease and desist letter is governed by the Australian Consumer Law. If you believe that someone has breached your consumer rights, you can send them a cease and desist letter asking them to stop the conduct in question. 

For example, the Australian Consumer Law prohibits businesses from engaging in deceptive tactics and perpetuating false statements. If a business is found to be engaging in such conduct, the consumer may send a cease and desist letter demanding that the behaviour stop. 

Similarly, Australia's copyright laws prohibit the unauthorised reproduction of copyrighted material. If an individual is found to be engaged in such activity, the copyright owner may send a cease and desist letter asking the individual to stop. In both of these examples, if the recipient of the cease and desist letter does not comply with its request, the sender may take legal action.

What should be included in a cease and desist letter?

A cease and desist letter is a formal demand for another party to stop illegal or harmful activities. The letter sets out the specific actions that the recipient must take in order to avoid legal action.

The content of a cease and desist letter will vary depending on the particular situation, but there are some key elements that should always be included. These are:

1. A clear and concise description of the illegal or harmful activity that is taking place

In order for the letter to be effective, it is important that the description of the activity in question is clear and concise. This allows the recipient of the letter to quickly understand the issue and take action to rectify the situation. Furthermore, a clear description of the activity can help to establish a legal basis for the cease and desist letter, making it more likely that the recipient will comply with its demands. As such, when drafting a cease and desist letter, care should be taken to provide a detailed and accurate description of the illegal or harmful activity that is taking place.

2. Demand for the recipient to immediately stop this activity

One of the key components of a cease and desist letter is the demand that the recipient immediately stops the offending behaviour. This is important for a number of reasons. 

• It makes it clear to the recipient that their actions are not acceptable and that they need to take immediate action to remedy the situation. 
• It helps to avoid further damage or injury by stopping the behaviour before it has a chance to continue. 
• It also gives the sender a clear deadline by which the behaviour must be stopped. Without this clear deadline, the recipient might delay taking action, which could further injure the sender or allow the behaviour to continue unabated. 

It is essential that a cease and desist letter includes a demand for the immediate cessation of the offending activity.

3. The consequences that will result if the activity does not cease, including legal actions

The mention of potential legal action is often an important part of a cease and desist letter. It underscores the seriousness of the situation and can increase the likelihood that the recipient will comply with the demands. Without this threat, the recipient may be less likely to take the letter seriously and may continue the activities in question. 

4. The contact details of the person or organisation sending the letter

The contact details of the person or organisation sending the letter should be clear for several reasons. 

• It lets the recipient know who they are dealing with and provides a way for them to get in touch if they have any questions. 
• It helps to establish the sender's credibility and legitimacy. 
• Including a postal address, email address, and phone number also makes it easier for the recipient to verify the sender's identity if they choose to do so. 
• Clear contact information helps to prevent misunderstandings or miscommunication between the parties involved. 
• By providing all of the necessary contact information up front, both sides can be confident that they are on the same page and that there will be no confusion about who is who or how to get in touch if needed.

It is important to note that a cease and desist letter is not a legal document, and it cannot be used as a threat or form of blackmail. It is simply a way to formally request another party to stop the undesirable activity. If the recipient does not comply with the demands of the letter, then the sender may opt to take action through legal proceedings.

What should you do if you receive a cease and desist letter?

If you are a recipient of a cease and desist letter, it's important to know your rights and what you can do next. Here's a quick guide to cease and desist letters in Australia. 

Seek legal advice

If you receive a cease and desist letter, the first thing you should do is seek legal advice. cease and desist letters can be complex, and it's important to understand your legal rights and obligations before taking any action.

Get in touch with the sender

Most people associate the cease and desist letter with formal legal action. However, these letters can also be sent as a way to resolve a dispute without going to court. Cease and desist letters are typically sent when someone believes they have been wronged, but they are not ready or able to file a lawsuit. 

Consider getting in touch with the sender. This is the best way to identify the problem and work on a resolution without going to court. Often, the sender just wants to know that you are aware of the issue and are willing to work with them to resolve it. 

They may not be looking to take to court, but instead just want to stop the behaviour that they believe is infringing on their rights. By getting in touch with the sender, you can try to come to an agreement without having to go through the costly and time-consuming process of litigating the matter.

Make a decision 

Once you've sought legal advice, you'll be able to decide whether to comply with the cease and desist letter or challenge it. If you decide to comply with the cease and desist letter, you'll need to stop the activity that's causing the infringement. This might mean ceasing the production, taking down a website or removing content from social media.

If you decide to challenge the cease and desist letter, you'll need to respond formally. This will usually involve writing to the person who sent the cease and desist letter, outlining your grounds for challenging it. Once you've responded, the matter will likely be resolved through negotiation or legal proceedings.



In any case, it's important to act quickly once you've received a cease and desist letter. cease and desist letters can be serious, and ignoring them can result in further legal action being taken against you.

Conclusion

Can I send a cease and desist letter myself?

Cease and desist letters are usually sent by lawyers on behalf of their clients, but there is no law that says you cannot send one yourself. If you choose to do so, it is important to be clear and concise in your letter. 

Is it better to have a lawyer send a cease and desist letter instead?

There are a few advantages to having a lawyer or a law firm send a cease and desist order: 

• It demonstrates that you are serious about protecting your rights and intellectual property.
• It puts the other party on notice that they are potentially liable for damages if they continue to engage in the prohibited activity according to business law or otherwise.
• In some cases, it may be necessary to obtain a court order before the other party will stop the offending behaviour. 

Is a cease and desist letter enforceable?

A cease and desist letter, also called a demand letter, must be carefully drafted to ensure that it complies with legal authority. The court may not enforce a poorly drafted letter. If you are considering sending a cease and desist letter, you should seek legal advice from a law firm to ensure that the letter will be effective. 

What happens when someone violates a cease and desist order?

In Australia, cease and desist orders are often used to resolve disputes between parties without the need for litigation. However, if someone violates the order, they may be subject to civil or criminal penalties. Civil penalties can include fines and compensation orders, while criminal penalties can include imprisonment. In some cases, a person who violates this order may also be found in contempt of court.