The Communications Sine Wave of Strategic Litigation: Building Communications around Digital Rights Litigation

By Maria Farrell, 29th October 2021

In September, DFF held a three-day workshop exploring how digital rights activists can use different forms of communication as a tool to bolster and complement digital rights litigation. In this new series of blog posts, our trainers revisit some topics and discussions from that workshop and share their recommendations with our readers.

Communicating about strategic litigation is like running an ultra-marathon, but one punctuated with one-hundred metre sprints.

There are moments of urgency and high news relevance when you need to be fully prepared to make the most of any media attention that comes your way, for example, when you file suit, or the day judgement is passed on your case. But there are also long stretches in-between when you need to maintain momentum, build relationships and deepen understanding.

To visualise and help you plan how to make the most out of each phase, it’s useful to imagine a sine wave. It’s a mathematical function that can be expressed as a single, wavy line that oscillates between two points.

Peak events

Think of the highest point of each curve as a “peak event” in the litigation cycle. Peak events include the day you file suit, your “day in court”, the judgement or ruling, a deadline for enforcement of legal action (assuming you win!), the announcement of a decision to appeal, and anniversaries of judgements. Your legal system’s staging points may differ, but a peak event is typically a significant external development that’s inherently newsworthy.

Peak events are the occasions for communications set-pieces you need to manage and optimise

Peak events are the occasions for communications set-pieces you need to manage and optimise. Any communications professional worth their salt knows how to do all this, but here are some of the specific activities for these moments in the cycle:

  • Get your press kit ready and out to key journalists and publications, and make sure you or your team/volunteers are contactable for follow-ups. (This is often a complaint of journalists – next day is no good.) Ensure the journalists you have a relationship with have everything they need, and use the newsworthiness of the peak event to generate new media relationships.
  • Prepare and rehearse talking points so the litigant and legal counsel (if appropriate) can speak in a concise and compelling way. Test your best metaphors in advance and sprinkle them everywhere. Rehearsing lines and talking points can feel awkward or embarrassing for some, but they’ll be glad they are prepared. It’s really not possible to over-prepare. But always have a secondary spokesperson ready, too.
  • Maximise opportunities to create social media and website content, especially visual content, e.g. bring a banner or backdrop to film a last-minute interview at the beginning of any hearings or when judgement is handed down; do a quick vox pop with your litigant(s) and their supporters, think ahead to videos and images you’ll need in the months ahead and make sure you capture these dramatic moments right now.
  • Get a news-blast out to your membership and make sure it links to key content and messages they can select from and amplify. Similarly, directly notify your pre-prepared list of peers, policy influencers, experts and supporters online so they can amplify and drive the social media conversation about your peak event and its implications.

Those are the key activities for the “peak event” points on the sine wave. Key messages for these moments are factual, concise and dynamic: “We have taken Action X to achieve Outcome Y”. The next focus is “What will get better, if we are successful”, and finally, “What comes next”. Focus on brevity, your defining metaphor, and salience. Think of peak events as moments when you say the same thing really well to a lot of different people.

The Sine Wave of Strategic Litigation, © Maria Farrell 2021

Piggyback events

A last word on peak events: a hybrid type is the “piggyback event” i.e. using another news story to draw attention to our own case. “Data breach X shows why our legal action to make Government Agency Y minimise data collection is so important.”

Piggybacking probably won’t yield dedicated media coverage, but it may pay to send a quick message to journalists you already know, with contextual information and a quote. And piggybacking via social media blasts keeps your issue out there, and lets you move the conversation forward. 

Trough events

But most of life isn’t peak events. Most of life is what happens “in-between”.

But most of life isn’t peak events. Most of life is what happens “in-between”

In between the driving legal events are “the troughs”, the periods of time spent in the bottom curve of the sine wave. Troughs can last for weeks or months.

Communications activities during troughs are critical, because they let you make the most of the peaks. Essential activities include: prep your press-kits, populate contact-lists, test out lines, talking points, develop and incorporate metaphors and stories; build social media relationships with supporters, experts and peers, i.e. do everything necessary to make the most of the peak events when they occur.

The troughs are when you cultivate relationships with both existing and new media people and organisations. Ongoing but not excessive contact with journalists you already know lets them deepen their understanding and see you as a reliable and consistent source of knowledge and contacts. But with much of the media in turmoil, you must work constantly to build new relationships. This means “cold-calling”, i.e. using phone/email/DM/ or even, whisper it, real-life networking to meet reporters, producers, podcasters, etc. and tell them about the case and the broader issues around it.

Relationship-building with journalists is vital during the trough. These activities are the basics. The trough is about more than just preparation. It’s the part of the sine wave that defines how and why we do what we do.

Cultivating relationships

We’re part of a broad social and political movement working against the grain to insist there is a better way of doing things. In using strategic litigation, we have both an instrumental purpose – to achieve an enforceable legal outcome – and a collective purpose: to use the resources, efforts and good will of our supporters and communities to achieve a better outcome for all.

When we use the law to defend digital rights and freedoms, we do so as organisations involved in movements

When we use the law to defend digital rights and freedoms, we do so as organisations involved in movements. Movements are bigger than just our own organisation. They’re dynamic coalitions that need constant reinforcement and renewal. That means communication is not “broadcast-only”, but genuinely being part of a conversation and a set of relationships in a broader ecosystem of peers.

We’re not just doing corporate communications, here. We’re doing something much harder and better: building relationships with people and groups who our work could help and who might want to help us.

To build and extend our movement, we need more people to understand that data and digital rights are not, at their heart, questions about technology. And legal cases are not just about the law. They’re about social policy, how to bring up children, how to be a child, climate crisis, refugee rights, employment issues, health and any number of other aspects of human life.

To build and extend our movement, we need more people to understand that data and digital rights are not, at their heart, questions about technology

When people read about our issues in ways that a) make it clear this isn’t just abstract, specialist tech stuff, and b) show that we are actually doing something, they can imagine themselves being part of it. Or, to put the relationship better, they see that what we’re doing is really serving and supporting them.

Every time we succeed in doing this, we gather more people to our cause and – excitingly – they help to evolve and extend the nature of our cause itself. Now that’s communication!

So, how we do communications during the trough periods, when we have time and space to think past the obvious, turns out to be the truly vital work of maintaining and growing our movement. If peak events are moments when you say the same thing really well to a lot of different people, the troughs are periods when you build relationships with people who care about different aspects of your issue. 

From theory to practice

Some more activities of the trough:

  • Website and social media content that tells the stories of who we are, why our litigant(s) have taken up this fight, what it’s meant for them in their lives. Litigants’ stories are the ‘hero’s journey’, one of the archetypal story structures. Reading about and seeing people like us who have done extraordinary things makes us feel we, too, can do the same.
  • Outreach to journalists, media, commentators, podcasters, influencers, bloggers etc. in both obvious and non-obvious fields, finding new angles to sustain existing interest and building broader understanding and support.
  • Outreach to peer organisations in different domains, e.g. employment, immigration, LGBTQI+ interests, health, racial and social justice, whose interests may be impacted by the case. Collaborations and partnerships can be game-changers for all sides, as long as they are respectful and broadly reciprocal, and based on real dialogue and sharing. “Organisational intersectionality” is how we win!
  • Equip members and supporters with talking points, case studies, social media content and other material to drive conversations themselves, and hold regular online gatherings to update, discuss and brainstorm with them. Too often, we value new and potential members and neglect our core supporters, but the truth is they do our best outreach and coalition-building.

Key messages for these periods are story-driven, focus on the future and the human motivation and impact of strategic litigation: “This is who we are, this is how it feels, this is what we dream of, and here is how we’ll get there.” Focus on emotionally compelling and people-centred stories, and on finding links and echoes in non-obvious places. Be open to learn and have your ideas evolve. Understand that the deep learning, linking and sharing of the trough periods are what truly make our movement strong.

Last word

We’re living through scary times and trust in many institutions has crumbled. The work we are doing is vital, both for its instrumental outcomes and because the simple fact of us being out there doing it shows people there are alternatives. We don’t have to stumble into a future we never asked for. People are aching to hear good news, and you are here to bring some. So, remember that when you go cold-calling/emailing/DMing. You are bringing people something they really want to have.

Maria Farrell is a writer and keynote speaker on technology and the future who has formerly worked in communications at ICANN and The World Bank.