Cease and desist
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A cease and desist (also called C & D) is an order or request to halt an activity, or else face legal action. The recipient of the cease-and-desist may be an individual or an organization.
The term is used in two different contexts. A cease-and-desist order can be issued by a judge or government authority, and has a well-defined legal meaning. In contrast, a cease-and-desist letter can be sent by anyone, although typically they are drafted by a lawyer.
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[edit] Court order
A judge may issue a cease-and-desist order with the intent to halt an illegal activity. This prohibition is sometimes used as the outcome of a trial, in which case it is a permanent injunction against the activity. It can also be used as an emergency measure to prevent possibly irreparable harm, in which case it takes the form of a temporary injunction. An injunction against speech issued before it occurs (e.g. preventing a pending publication) is called prior restraint.
[edit] Use by administrative agencies
Many government administrative agencies also have the ability to issue cease-and-desist orders and frequently use them to halt the sale of unregistered or fraudulent securities, to halt unsafe banking practices and to enforce licensing statutes. These orders usually specify a period of time for the recipient of the order to request a hearing. If a hearing is not requested by the recipient in the given time, the cease-and-desist order becomes final and the agency has the ability to enforce its order in a court of law.
[edit] Cease-and-desist letters
A cease-and-desist letter is a letter demanding that the recipient refrain from a certain behavior or face legal action. Some types of behaviors that may prompt such letters include:[citation needed]
- Harassment by telephone by a collection agency or junk debt buyers
- Stalking or other forms of harassment
- Property, neighborhood, and boundary disputes
- Patent infringement, copyright infringement or trademark infringement
- Libel or slander
In the case of stalking and harassment, the letter usually demands that the recipient cease the threatening behavior or face criminal charges.
In the case of property and boundary disputes, the letter demands that the recipient cease activity that negatively impacts their neighbors. Some examples include holding loud parties late at night, leaving a dog outside to bark all day, cutting down trees that stand on public or jointly owned land, or building a fence that infringes on someone else's property.
In the case of copyright or trademark infringement, libel, and slander, the letter typically threatens a civil lawsuit if the recipient continues the undesired activity. It is similar in form, although not in function, to a demand letter, which alerts the recipient to a pending claim for money damages, usually as a result of a tort or a breach of contract.
In the US, a recipient of a cease-and-desist letter who is placed in a "reasonable apprehension" of litigation may respond through a request for declaratory judgment proceeding in his own jurisdiction.
[edit] Criticism
Civil liberties and free speech groups[who?] have criticized cease-and-desist letters, pointing out that the letters may be used by wealthy individuals and organizations to silence opponents who are unable or unwilling to engage in an expensive lawsuit, and thus prefer to comply with a cease-and-desist letter (even if it is unjustified).
[edit] See also
- Abmahnung, a formal request by one person to another person to forthwith stop a certain behaviour (German law)
- Strategic lawsuit against public participation (SLAPP)
- Chilling Effects (group)
[edit] External links
- Chillingeffects.org - A joint project between the Electronic Frontier Foundation and several universities to monitor uses and abuses of intellectual property rights on the internet. Contains a database of cease-and-desist letters to which either senders or recipients can contribute.
- Fair Use Network - An informational resource for recipients of cease and desist letters.
- Google Begins Making DMCA Takedowns Public - Popular search engine Google now responds to cease and desist orders in cooperation with Chilling Effects [1].
- Legal threats against The Pirate Bay - Popular bittorrent tracker The Pirate Bay publishes cease and desist letters sent from certain companies and their responses.
- How to write a Cease & Desist Letter from the University of Texas System - A template for writing your own cease & desist letters.
- Anti-cult Cease and Desist Letter - A Cease and Desist Letter that can be used against mind-control cults. This sample was originally intended to stop Opus Dei cult harassment and intimidation, but it can be used against other cultic groups as well as individuals.
