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Above: A young woman raises awareness about Roundup, a herbicide produced by Monsanto/Photo: UNI

A subpoena asking the NGO to submit data related to its fight against the multinational with regard to glyphosate, a suspected carcinogen, has been thrown out by a Manhattan court

~By Ramesh Menon

Avaaz, an international civic campaigning network, was served with an unprecedented 168-page subpoena in a case where Monsanto, a $50-billion multinational dealing in agri-business and biotech, demanded submission of its internal campaign communications and political strategy documents.

A subpoena is a writ demanding that a person appear in court. The subpoena demanded documents reflecting Avaaz’s effort to persuade governments worldwide to ban the chemical agent glyphosate, a widely-used herbicide, which is an active agent in Roundup, a Monsanto product. However, Manhattan Supreme Court Justice Shlomo S Hagler recently granted Avaaz’s motion to quash Monsanto’s subpoena to hand over all documents, emails, correspondence and other materials in its possession related to glyphosate. The judge warned Monsanto that such action is an attempt to “chill” the efforts of Avaaz and all other lobbying organisations in the United States.

Avaaz, which globally has over 48 million members, was furiously involved in a mass movement against glyphosate that is suspected to be carcinogenic. It lobbied with the European Union (EU) not to reissue a 15-year licence for glyphosate. It also protested against the setting up of Monsanto’s genetically-modified seed factory in Argentina and the merger of Monsanto and Bayer. After many deliberations in November last year, the EU granted a five-year extension for the use of glyphosate in agriculture, instead of a 15-year licence.

The International Agency for Research on Cancer, under the World Health Organization, has held that glyphosate is probably carcinogenic. Also, a study by the Journal of the American Medical Association indicated that there is emerging evidence that long-term exposure to glyphosate causes cancer. However, countries have not been able to ban or restrict its use due to industry pressure.

Environment activists say that exposure to glyphosate leads to cancer, celiac disease and autism. However, the industry dismisses these claims. In the last 10 years, over 6.1 billion kilograms of the chemical have been spread on fields all over the world. Reports suggest that India uses over 148 million tonnes of glyphosate every year.

Avaaz Deputy Director Emma Ruby-Sachs told India Legal: “It’s unbelievable, but we beat back Monsanto and won in court! Not only are we safe from this legal attack, but the judge even told Monsanto that what they were doing was anti-democratic and an attempt to ‘chill’ the voices of our members, and the voices of citizens engaged in lobbying everywhere. Monsanto can appeal, but they’d be crazy to try to take on this amazing community of almost 50 million people again.”

On behalf of Avaaz, law firm Emery Celli Brinckerhoff and Abady had filed a motion in the New York County Sup­reme Court in Manhattan seeking to quash the subpoena from Monsanto saying that it violated the First Amend­ment. If the court had asked Avaaz to hand over its campaign data, it would have had to release all its internal communications and documents which included the email addresses of four million people who signed online petitions against glyphosate and Monsanto. Apart from these details, Monsanto also wanted Avaaz to disclose its communications with governments, NGOs and firms dealing with advertising and public relations.  The subpoena exhaustively listed communication forms, telegrams, PowerPoint presentations and so on to be turned in. Avaaz was wary that if it had to turn in the information, its campaign against glyphosate would die as its supporters would not want their personal information shared with a multinational that had vested interests in pushing this controversial chemical. The subpoena would have overburdened Avaaz as getting details of all communications over the years from its employees in 23 countries would be impossible. These communications down the years would be extremely difficult to recover. The costs of doing so and of reviewing and producing such material would be enormous, and would have cost hundreds of thousands of dollars. Deter­mined to challenge the subpoena in court, Avaaz members funded the defence in court.

The subpoena was issued as part of a case filed in the Circuit Court of St Louis, Missouri, where two individuals, Ronald Peterson and Jeff Hall, alleged they suffered from non-Hodgkin’s Lymphoma (NHL) after exposure to a pesticide called Roundup, a weed killer that contains glyphosate. The plaintiffs had stopped using the pesticide when detected with cancer and Avaaz got into advocating against it.

While hearing a case against Monsanto in August this year, the jury at California’s Superior Court ruled that the company should pay $289 million to one DeWayne Johnson who got terminal cancer (non-Hodgkin’s lymphoma) after using the weed killer. The jury concluded that Johnson’s cancer was at least partly caused by using glyphosate. Judge Suzanne Ramos Bolanos said that Monsanto “acted with malice, oppression or fraud and should be punished for its conduct.” At that moment, there were around 4,000 cases against Monsanto. After this verdict, cases have almost doubled.

If the subpoena had not been quashed, it would have had serious consequences for data privacy and online activism. No wonder Ruby-Sachs feared that the suit would have a chilling effect on the activism of the group as its partners were wary that their data or whatever they said would be turned over.

Avaaz said in court that the demand for internal information was a violation of the First Amendment and New York’s Reporter’s Shield law. In a letter to Monsanto, Avaaz’s attorneys said that the subpoena was unconstitutionally intrusive and it violates Avaaz’s speech and associational rights. Avaaz examined issues that affected their members, found out ways to tackle it by engaging civil society and the government. Nothing could be more central to the First Amendment than this, the letter added.

Ruby-Sachs said: “Imagine a world where any time you called on your government to regulate a corporation because science showed its products could be making people sick, that corporation could force you to reveal everything you and your friends had ever privately written or said about them. That is the world Monsanto is hoping to create.”

Talk about strong-arm tactics.

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