Cease and desist

Cease and desist

Overview
A cease and desist is an order or request to halt an activity (cease) and not to take it up again later (desist) or else face legal action. The recipient of the cease-and-desist may be an individual or an organization.

In the U.S. the term is used in two different contexts. A cease-and-desist order can be issued by a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 or government authority, and has a well-defined legal meaning.
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Encyclopedia
A cease and desist is an order or request to halt an activity (cease) and not to take it up again later (desist) or else face legal action. The recipient of the cease-and-desist may be an individual or an organization.

In the U.S. the term is used in two different contexts. A cease-and-desist order can be issued by a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 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
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...

.

Court order


A judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...

 may issue a cease-and-desist order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...

 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
Prior restraint
Prior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...

.

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
Security (finance)
A security is generally a fungible, negotiable financial instrument representing financial value. Securities are broadly categorized into:* debt securities ,* equity securities, e.g., common stocks; and,...

, to halt banking practices that would possibly be dangerous to institutions 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.

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:
  • Harassment by telephone by a collection agency
    Collection agency
    A collection agency is a business that pursues payments of debts owed by individuals or businesses. Most collection agencies operate as agents of creditors and collect debts for a fee or percentage of the total amount owed....

     or junk debt buyers
    Debt buyer
    A debt buyer is a company, sometimes a collection agency or a private debt collection law firm, that purchases delinquent or charged-off debts from a creditor for a fraction of the face value of the debt...

  • Stalking
    Stalking
    Stalking is a term commonly used to refer to unwanted and obsessive attention by an individual or group to another person. Stalking behaviors are related to harassment and intimidation and may include following the victim in person and/or monitoring them via the internet...

     or other forms of harassment
    Harassment
    Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...

  • Property, neighborhood, and boundary disputes
  • Patent infringement
    Patent infringement
    Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...

    , copyright infringement
    Copyright infringement
    Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...

     or trademark infringement
    Trademark infringement
    Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees...

  • Libel or slander
  • Terms of service
    Terms of service
    Terms of service are rules which one must agree to abide by in order to use a service. Unless in violation of consumer protection laws, such terms are usually legally binding...

     violation


In the case of stalking and harassment, the letter usually demands that the recipient cease the threatening behavior or face criminal charge
Criminal charge
A criminal charge is a formal accusation made by a governmental authority asserting that somebody has committed a crime. A charging document, which contains one or more criminal charges or counts, can take several forms, including:* complaint...

s.

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
Demand letter
A demand letter, or LOD, ie. a Letter Of Demand , is letter stating a legal claim which makes a demand for restitution or performance of some obligation, owing to the recipients' alleged breach of contract, or for a legal wrong.In the United States, demand letters from a debt collector relating to...

, which alerts the recipient to a pending claim for money damages, usually as a result of a tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

 or a breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....

.

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
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...

 proceeding in his own jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...

.

Criticism


Civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

 and free speech groups such as the ACLU 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 may feel compelled to comply with a cease-and-desist letter even if it is unjustified.

See also

  • Abmahnung
    Abmahnung
    Abmahnung is the formal request by one person to another person to forthwith stop a certain behaviour.If this formal request is made by an attorney, then it is a cease-and-desist letter...

    , a formal request by one person to another person to stop a certain behaviour forthwith (German law)
  • Chilling Effects (group)
  • Strategic lawsuit against public participation
    Strategic lawsuit against public participation
    A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....

     (SLAPP)

External links

  • Chillingeffects.org—A joint project between the Electronic Frontier Foundation
    Electronic Frontier Foundation
    The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...

     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.
  • Google Begins Making DMCA Takedowns Public—Popular search engine Google
    Google
    Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...

    now responds to cease and desist orders in cooperation with Chilling Effects, chillingeffects.org.