SLAPP Attack!

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Filing Strategic Lawsuits against Public Participation has become the first choice of action for big businesses to threaten journalists and activists who expose their corrupt practices. A recent SC ruling upholding defamation laws under the IPC is a blow for defenders of free speech

By Ramesh Menon and Ajith Pillai


Any editor worth his salt will tell you that practicing journalism which targets the rich and powerful is risky business and inevitably ends up in a long protracted legal tussle. The journalist in question has to not only endure pressure that is brought to bear on him to apologize and retract stories but also battle a slew of cases and defamation notices. In short: uneasy rests the crown on those who dare to expose corruption in high places.

But, it is not good news for champions of free speech. On May 13, the Supreme Court upheld defamation as a criminal offense under the IPC. A petition filed by Rajya Sabha MP Subramanian Swamy, Congress vice-president Rahul Gandhi and Delhi CM Arvind Kejriwal, among others, was dismissed. The court observed that freedom of speech should have reasonable restrictions. Currently, under Sections 499 and 500 of IPC, two years of imprisonment, fine or both has been prescribed for defamation.

Till the mid-80s, it was largely politicians who took umbrage at what they felt was uncharitable reportage. But with the growth of corporate India and the business boom that followed economic liberalization, there have emerged powerful entities that brook no questioning of their actions, including the illegal and unethical routes they take to secure higher profits.

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By all accounts, fighting corporate corruption is tricky because unlike politicians who have to win elections to stay afloat, business houses can run unhinged unless the law catches up with them. As a result, we are witnessing big business houses increasingly taking recourse to legal provisions to silence journalists and social activists.

Often, a legal notice from a lawyer, though it doesn’t amount to a case being filed, is enough to silence many journalists and editors. In other cases, they are slammed with defamation suits running into crores. Further, it entangles them in a legal cobweb which forces them to appear in far-flung courts numerous times a year and for decades to come.

 

The ploy is not just to harass the journalist or activist, but to send a message to others to shut up and not to follow up a particular story or do other similar exposes.

SHACKLING JOURNALISM

This trend is cause for concern not only for the future of independent journalism but also for democracy in India. A recently launched book, Sue the Messenger, authored by journalists Subir Ghosh and Paranjoy Guha Thakurta, reveals how legal harassment by corporate bodies is today shackling reportage and thus undermining democracy.

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The book establishes a clear political link with financial and corporate crime. Recent scams that have rocked parliament have explicitly exposed this. Be it corrupt deals, money laundering, financial frauds or gross violations of environmental and corporate laws, big businesses have operated in tandem with politicians who have reaped benefits from this corrupt and symbiotic relationship.

As a result, when journalists or a social group report on illegalities committed by a corporate entity, they have to fight this powerful nexus which wields influence over several arms of the government, including the police which can harass the crusaders. The nexus also has the resources to employ high-profile lawyers to take up the case and sustain a prolonged legal battle.

Noted constitutional jurist Fali Nariman said: “The release of the Panama Papers shows that corporations have a lot to hide. Jailing the messenger is much more harmful than just suing the messenger. SLAPP (Strategic Law-suits Against Public Participation) suits should not deter journalists from doing their job.  But this will happen and one has to live with the reality.”

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Subir Ghosh, who earlier worked with PTI, The Telegraph and DNA, told India Legal: “If you stop journalists from doing their work and writing about corruption, the public will be robbed of their right to know. Ultimately, it is the democratic process that takes a hit. SLAPP suits are intended to have a chilling effect on others, apart from persecuting journalists who are doing their job.”

INTIMIDATING SUITS

The term SLAPP was coined in the early 1980s in the US. Two professors at the University of Denver—George W Pring and Penelope Canan—observed during the course of their research a mushrooming number of legal cases being filed by US companies with the primary intention to intimidate citizens and the press.

These suits had no chance of succeeding in court but were nevertheless filed to scare critics and ward off activists. Pring and Canan labelled these cases as Strategic Law-suits Against Public Participation or SLAPPs, an acronym that soon became a common expression among free speech activists.

In India, the term SLAPP perhaps entered legal records for the first time in a landmark judgment delivered on November 27, 2009, by Justice S Ravindra Bhat of the Del-hi High Court. The case related to a series of investigative reports published by Rajasthan Patrika in 2004 on pesticides found in fruits and vegetables grown in various parts of Rajasthan and the reasons why farmers were resorting to their high use.

The paper was taken to court by the Crop Care Federation of India (CCFI), an organization that claimed to work with farmers. In his judgment Justice Bhat observed: “The suit was not brought by a company really aggrieved…. The attempt was plainly to stifle debate about the use of pesticides and insecticides. Whether such use or overuse of pesticides over a period of time affects life, plant or human, could be a matter of discourse, but certainly not one which could be stifled through intimidatory SLAPP litigation.”

The judge went on to elaborate the dangers of entertaining SLAPP litigation. To quote: “Free speech and expression is the lifeblood of democracy. Any action—even civil injunctions, damages, or threat to damages, are bound to chill the exercise of that invaluable right of the people and the press. By giving such orders, or allowing claims for damages, for perceived injury to reputation, the harm done to freedom of press, which facilitates free flow of ideas is incalculable.” This case and several others involving SLAPP suits find mention in Sue The Messenger.

DEFAMATION CASES

Some of the cases filed against publications underline Justice Bhat’s observations. In 1999, Down To Earth editors Anil Aggarwal and Sunita Narain were sued for Rs 100 crore by the Tatas for inadvertently illustrating an article about automobile emissions with a photograph of Sumo, a Tata vehicle. Down To Earth was campaigning against diesel and advocating for cleaner fuels like CNG and decided not to back down. The suit was ultimately withdrawn by the Tatas.

Narain has had defamation cases filed by the pesticide industry against her. Others like organic farmer and activist Umendra Dutt in Punjab, who has been campaigning against chemical farming, has been slapped with a Rs 5 crore defamation suit by United Phosphorus Limited, a leading pesticide manufacturer. Dutt’s crime: holding public discussions citing health studies on pesticide exposure and how it could act as a trigger to diseases and even lead to congenital malformations and genetic disorders. There was nothing new in what he was saying as well-established scientific studies across the world confirm this. The idea was to stop him and others from campaigning against pesticides.

United Phosphorus Limited also filed a case against Bennett Coleman Co Ltd as one of its papers, Mumbai Mirror, quoted Dutt. The company alleged that the statements in the article would affect its reputation. An amazing charge as the article did not even mention the company but only talked of pesticides and their adverse impact on health.

Notes Narain: “Fear of being sued by pesticide corporations stopped research on the harmful effects of pesticides. There were several criminal cases filed against the Centre for Science and Environment (CSE, the organization she heads), but we knew we cannot afford to fall because if we do, many others will fall. There will be greater threats to free speech in the future. SLAPP is a tool to stop dissent.”

CORPORATE AGGRESSION

In recent times, several suits have been filed against publications and publishers, including widely reported injunctions against the publication of the biography of Dhirubhai Ambani, The Polyester Prince, by Australian journalist Hamish McDonald. The Radia tapes expose saw cases filed against several publications, including Outlook magazine. The Essar group tried to stifle reports following a leak of internal communications which revealed how the company’s PR department was influencing journalists and politicians with sops and freebies.

Last year, nearly a dozen defamation cases were filed against the media by business houses. One of them seeking damages of  Rs 5,000 crore was filed by BSES Ltd., a power distribution firm run by the Anil Dhirubhai Ambani Group, against The Times of India. The paper had published news stories based on a draft report of CAG. BSES claimed its image had been damaged by the newspaper articles.

A defamation case that created quite a flutter in 2015 was against Moneylife, a financial news and investment portal, by the National Stock Exchange (NSE). The website, quoting a whistleblower, had reported how the NSE was providing select brokers special access to its computer system, thus helping them conduct illegal, high frequency trading ahead of others. The NSE slapped a `100-crore suit against Moneylife. The Bombay High Court dismissed the case on September 9, 2015, and directed the NSE to pay Rs 1.5 lakh each as damages to Managing Editor Sucheta Dalal and Debashis Basu, the publisher of Moneylife. The court also directed the NSE to donate Rs 47 lakh as penalty to the Tata Memorial Hospital and Masina Hospital in Mumbai.

In his order, Justice Gautam Patel observed that the NSE had ignored three messages sent across by Dalal seeking its response. As it had not responded, the Exchange was either arrogant or there was an element of truth in the allegations, he said. The judgment came as a breath of fresh air to journalists and bloggers who live under the constant threat of defamation suits.

DUBIOUS JOURNALISTS

But have companies been forced to take journalists to court because of questionable journalism dealing in inaccurate facts and unsubstantiated allegations? Dilip Cherian, a former business editor and now a leading PR consultant, says that the media has to take a fair share of the blame.

According to him, “criminals with press accreditation cards” have sullied the name of journalism and brought disrepute to the profession through flimsy stories and motivated reports serving vested interests.

Adds lawyer Karuna Nundy: “There has been a massive failure of self-regulation in the Indian press. It has tried to destroy reputations without enough proof. So it was imperative for the courts to step in to stop it. However, with the rise of freelancers and bloggers, it is important to see that the reporters are adequately protected.”

So how safe is the Indian media? Well, we in the media are still very far from the fate of William Prynne (1600-1669), a puritan lawyer, who wrote the book Histrio Mastix: The Players Scourge, or, Actors Tragodie in 1633, which dealt with the frivolous pastimes of his age, including the royal passion for theatre. King Charles I apparently did not take kindly to this book and sentenced him to life imprisonment and had his ears cut off.

But the Fourth Estate still has to guard itself from SLAPP suits. As Nundy said: “It is possible for a journalist to get the suit dismissed if he or she can claim that there is no damage done to the corporate. We have to deal with suing the messenger. It is a problem we cannot ignore.”

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