There are legal implications to what we are doing. Don't let this information de-motivate you, but be informed to avoid problems.

Legal Issues in Letter Writing and Public Statements

The two legal issues we must consider are the legality of consumer boycotts and the risk of defamation. All Fair Wear groups need to be cautious about the way you phrase your public statements. Here is some general advice as a guide. More specific information is available through your State office if necessary.

The Liability of Your Organisation

Fair Wear is not incorporated. This means that individuals involved in the group are directly liable, i.e. they can be sued in person. When individual people speak as members or representatives of Fair Wear, they must therefore be careful about the way they phrase their information about companies. (See below for suggestions.)

Most people involved in Fair Wear will be speaking on behalf of other organisations. If that organisations is incorporated, it would be the organisation, not the individual, who is liable. Many organisations involved in Fair Wear are accustomed to taking the kind of actions involved in this stage of the Fair Wear Campaign. Thus, decisions about how to phrase your public statements may well be based upon the policies of your organisation. It may also be the case that you have information and advice which you can share with other groups involved in Fair Wear regarding boycotts and defamation, or related legal matters. Any information would be greatly appreciated and should be sent to Pamela Curr from the Melbourne office, who is co-ordinating this information.

If companies are after damages for loss of earnings, they will sue the organisation with the "deepest pockets". They will also sue as many organisations as possible, particularly if they can join a number of organisations in one action.

On the other hand, companies may simply sue in order to gain publicity. This is often the case with defamation actions. A company will initiate an action with no intention of carrying it out. Their purpose is to gain publicity, such as a report in the media which shows they refute statements made against them. Their purpose may also be to intimidate and silence those involved in the campaign. They may also seek a public apology. If this is the strategy adopted the action will not make it to court. A large proportion of defamation actions are of this nature.

In short, you should take preventative measures to limit possible liability. However, if you are issues with a writ, don't panic. Contact your Fair Wear State office so that other organisations are put on notice to help. It is not only companies who can gain publicity through taking legal actions. We can also benefit from the controversy stirred up during a legal action. Defamation suits can backfire on companies. The publicity companies attract may well be negative. Moreover, the more of a fuss we as a collective make, the greater the deterrence for other companies who might consider taking legal action. However, this will be a strategic decision to be made if such an event arises.

Clearly, if an organisation is issued a writ, they should seek legal advice immediately (and also contact your Fair Wear office). Your organisation may have a policy concerning lawyers. However, remember that they are expensive. Legal aid or community legal centres may be able to assist you. Other organisations in Fair Wear will also be able to help you out.

Preventing Legal Action

The rule of thumb when making public statements is to be as accurate as possible.

1. Don't say that retailers "use" or "employ" homeworkers.

This implies that they directly employ them, which, in general, is not true. Instead say that retailers are responsible, or use other wording which places the onus on companies to prove that they do not sell goods made by exploited homeworkers (see the examples below).

Although accuracy involved making complex statements, it also gives you an opportunity to implicate manufacturers and generally help to create a more informed public.

The following are examples of how to phrase this.

Example One
a) We know that around 330,000 homeworkers work under exploitative conditions in the textile, clothing and footwear industry in Australia. Unless companies take steps to prove that they are not exploiting homeworkers - that is, unless they sign the Homeworkers Code of Practice - we have no way of knowing whether they sell goods made by exploited homebased outworkers. We are asking [X company] to guarantee that they sell products which are exploitation-free.

b) Given the number of homebased outworkers in Australia, we can only assume that the clothing sold by most retailers is made under exploitative conditions. The onus is on retailers to take positive steps to prove that they sell fair wear. [X company] can do this by signing the Homeworkers Code of Practice and abiding by its terms.

Example Two
The chain of production in the Australian clothing industry is very complex. Retailers contract out to manufacturers who then contract out to subcontractors and homeworkers. However, ultimately, it is the retailers who have the power to regulate the labour practices of those below them in the contracting chain. Only action on the part of retailers will flow down the contracting chain and result in protection for homebased outworkers. Retailers/[X company] can sign the Homeworkers Code of Practice in order to provide a guarantee to the community that they are not responsible for the exploitation of women and children working at home.

2. Avoid directly suggesting boycotts.

Instead, encourage consumers to use their discretion when they are shopping. Suggest that they show a preference for those companies who have signed the Homeworkers Code of Practice.

Put an emphasis on asking questions of retailers. After all, the only way companies will know that consumers are concerned about their exploitation of homeworkers is if consumers tell them.

3. Quote the Senate report (Senate Economic Reference Committee Report into Outworkers in the Garment Industry) as a source of information.

It gives greater credibility to our statements. If you wish to quote where your information came from you can quote the Senate Inquiry reports, the "Hidden Cost of Fashion" or other media reports to which you have access. Do not direct quote the Textile, Clothing and Footwear Union of Australia (TCFUA) or any other organisation involved in Fair Wear to avoid threats of defamation to these bodies. Reports given to the Senate Inquiry are a good source of information and are public documents.

We hope you find these comments about making public statements useful. The laws of defamation differ from state to state, and there is no clear way to avoid liability altogether whilst still targeting and applying pressure on specific companies. The most important thing is to be factual and make no inference that cannot be substantiated. Obviously, you will need to rely on your own judgement and common sense in deciding how to word public statements.

If you have further questions contact your State Fair Wear office.