Bullies in Armani suits
15 December 2016
The strategic use of the law threatens investigative journalism.
(This is an essay from our print quarterly ‘Growing Media, Shrinking Spaces’. See more from the issue here.)
Traditional free speech conflicts have taken a vertical direction, with censorship consisting of state actions that place restrictions on the ability of individuals to exercise their freedom of speech and expression. The long struggle in Indian courts over freedom of speech has created a fairly robust jurisprudence that provides safeguards against unreasonable interferences on speech by the state. The crucial question, however, is whether these are adequate to challenge the emerging paradigm of horizontal censorship.
The rise of horizontal censorship – that is, attempts at censorship by non-state actors – has two primary manifestations: the use of intimidation by lumpen forces through acts of vandalism or violence, and the use of law by corporations, religious groups and wealthy individuals to silence critics and activists. Rajeev Dhavan, in his book Published and be Damned, argues that, imperfect as the jurisprudence of free speech in India is, it at least provides one with a platform to challenge unreasonable acts of the state. The real challenge now, is how we tackle threats to free speech that use existing laws in strategic, self-serving ways and which are generally preceded or followed by the use of violence as part of a holistic approach to harassment and intimidation.
The long struggle in Indian courts over freedom of speech has created a fairly robust jurisprudence that provides safeguards against unreasonable interferences on speech by the state. The crucial question, however, is whether these are adequate to challenge the emerging paradigm of horizontal censorship.
The use in India of what American legal experts Penelope Canan and George W Pring call ‘Strategic Lawsuits Against Public Participation’ (SLAPP) is part of a global trend in which deep-pocketed individuals and corporations pursue either criminal punishment or claim massive civil damages as a way of silencing critics. Rather than securing adjudicatory relief, the primary objective of the SLAPP suit is to threaten, intimidate or coerce the other party into silence or, alternately, burden them with prohibitive legal costs in judicial systems that have a reputation of favouring big players over smaller ones. Regardless of the suit’s legal merit, the intention of intimidating those who dare to speak in the public interest is often achieved. While the global rise of the SLAPP suit can be traced back to the 1970s – when US companies began naming environmental organisations and advocates as defendants in civil lawsuits – the Indian legal system is especially conducive to their initiation. As in the US, defamation law has become the SLAPP suit’s weapon of choice.
In India, legal proceedings against an alleged defamatory act can be brought either as criminal actions (Section 499 of the IPC) or as civil actions under common law. The primary difference between the two options is that while criminal defamation proceedings are undertaken to punish the offender, civil actions are pursued so as to derive compensation in the form of monetary damages. Also noteworthy is that though the intentions of the accused are relevant for any proceedings brought under Section 499 of the IPC, they are irrelevant in civil cases. Significantly, criminal and civil actions in relation to defamation are not mutually exclusive, and both can be pursued at the same time.
The need of the hour is a similar recognition that bullies do not necessarily wield lathis, but instead, often come dressed in impeccable suits.
The primary reason for pursuing a criminal remedy over a civil one is the relative efficacy of India’s criminal justice system, and the fact that the process itself acts as a punishment. Initiating a criminal complaint means that the accused is obliged to appear before the court until the case is over, often necessitating travel to remote areas where cases may be filed. Indeed, a defamation case can be filed at any location where the ‘offending’ publication is available, which in the case of the internet can mean legal proceedings being filed in unlikely, inconvenient though strategically useful places. Referred to as ‘forum shopping’ or ‘libel tourism’, this approach has become an effective means to intimidate outspoken journalists and publications. The use of defamation laws by corporations to quell media criticism has by now become an established aspect of the country’s legal arena. This tendency has even been acknowledged by the Supreme Court. In Indian Oil Corporation v NEPC the court observed that there was:
A growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged.
In G Sagar Suri v State of UP, the Court similarly observed:
It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which [the] High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.
On the other hand, as Rajeev Dhavan observes, civil proceedings also have their own advantages and disadvantages. The high court fees (fixed on the basis of the quantum of damages sought) effectively ensures that those with the deepest pockets can afford to claim large damages, while those without can only file for meagre damages, whatever the merits of the case being initiated. Since the intentions of the defendant have no bearing on civil defamation cases, the action functions as an effective means of silencing critics by virtue of the high damages sought, accompanied by the fact that companies usually hire the most expensive lawyers to pursue their case.
Defamation cases have, therefore, become a litigation sport of the privileged, and it is often the case that corporations do not necessarily file defamation cases to win or to make a point against their opponents. Instead, their interest is in obtaining immediate injunctive relief and drowning their opposition in protracted and expensive litigation.
One of the most prolific users of defamation as a strategy of silencing media critics in recent times has been the Indian Institute of Planning and Management (IIPM) and its flash, ponytailed director Arindam Chaudhuri. In 2005, IIPM slapped a blogger with a defamation suit for pointing out that the institute was not accredited to either the University Grants Commission (UGC) or the All India Council for Technical Education. In 2009, IIPM successfully obtained an interim restraint (an injunction that prevents a party from engaging or continuing to engage in a particular activity such as the publishing of a book) against an article in Careers360 titled ‘IIPM – Best only in claims?’ The article investigated the validity of the claims made in IIPM’s advertisements. IIPM also secured an order from the Gwalior Court directing the Department of Telecom to block 73 URLs, including that of the UGC, the country’s regulatory authority for higher education, for bringing to light the fact that IIPM was not recognised by the body. In 2011, IIPM claimed INR 50 crore as damages from the Caravan magazine and writer Siddhartha Deb for an article titled the ‘Sweet Smell of Success: How Arindam Chaudhuri made a fortune off the aspirations – and insecurities – of India’s middle classes’. Even though both IIPM and the Caravan were based in Delhi, the case was filed in Assam, and when Penguin later brought Deb’s book out, it was published without its original first chapter on IIPM.
Defamation cases have, therefore, become a litigation sport of the privileged, and it is often the case that corporations do not necessarily file defamation cases to win or to make a point against their opponents.
Traditionally, the SLAPP suit found its victim in activists and whistle-blowers. The deployment of this instrument has, however, increasingly been used against academics expressing objective opinions or making fair observations.
In recognition of the scale of the problem and the adverse effect that SLAPP suits have on free speech, 28 states in the US have passed anti-SLAPP laws. While the content of these laws vary from state to state, their common objective is to protect the right to free speech from vexatious litigation. Apart from these legislative efforts, there have also been judicial attempts to counter SLAPPs.
The landmark case New York Times v Sullivan – in which the US Supreme Court held that for a public official to make a successful claim of defamation or libel against the accused, they must show that the defamatory statement meets the actual malice standard (i.e. it was made with the knowledge that it was false or with reckless disregard of its falsity) – was pivotal in the developing jurisprudence against SLAPP suits. In India meanwhile, the Delhi High Court in M/S Crop Federation of India v Rajasthan Patrika demonstrated how despite the absence of anti-SLAPP legislation, Order 7 Rule 11 of the Code of Civil Procedure can be used to dismiss SLAPP suits. The plaintiff in the case was a company whose members and shareholders were insecticide manufacturers, licensed to produce such goods. The first defendant was the newspaper Rajasthan Patrika, and the remaining defendants were employees of the newspaper. The plaintiff approached the High Court and claimed to be aggrieved by several articles published in Rajasthan Patrika by the defendants, with respect to the alleged levels of pesticides the company used and the alleged harmful effects these have on plant and animal life. The plaintiff argued that these articles tended to defame all pesticide and insecticide manufacturers, which essentially included all the plaintiff’s members and shareholders.
According to the court:
The present suit contains all the ingredients of a ‘Slap suit’. A strategic lawsuit against public participation (SLAPP) is a lawsuit intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. In such instances the plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.
Justice Ravindra Bhatt, who delivered the judgment, went on to make further observations about the dangerous tendency of SLAPP suits, and made special note of the precedent established in the Greenpeace case, in which Tata initiated a lawsuit against Greenpeace for developing a game modeled on Pac-man that depicted the Tata logo as a turtle-eating predator. In this case, the court applied the principles established in Bonnard v Perryman to defamation cases and refused to grant an injunction on the grounds that it would be unreasonable to fetter the freedom of speech before the full trial takes place, where each of the parties can argue in detail with the help of additional evidence.
Still, in India, defamation suits have gained a reputation for being easy to bring, even though they may be hard to win. Despite the cited rulings, the deep pockets of committed SLAPP users (for example IIPM or Bennett, Coleman and Co Ltd) illustrate that money and muscle power can go a long way in manipulating the system.
It is also important to note, however, that sometimes a defamation case can itself be the catalyst for the mobilising of public opinion against the person or company filing the case. An example of this in the UK is the infamous McLibel case (which spanned two decades), in which McDonalds sued two activists for the production and distribution of pamphlets targeting the company. McDonalds eventually spent up to GBP 10 million in legal costs while the activists raised GBP 40,000 from the public to mount their legal defence. The trial turned out to be the longest trial in the history of UK law, with the court finally delivering its 762 page judgment in 1997. Justice Bell held in favour of McDonalds on some of the more extreme claims that had been made by the activists (including the allegation that McDonalds was to blame for starvation in the Third World and had used lethal poisons to destroy vast areas of Central American rainforest). In what many perceived as a PR disaster for McDonalds, however, Justice Bell also held that the corporation had helped to “depress wages in the catering trade”, had exploited children in its advertising, and “pretended to a positive nutritional benefit which their food did not match”. McDonalds did not claim the damages that were awarded to them and were relieved instead with the wrapping-up of the case, especially given the media interest that it had garnered and its rightful portrayal as a David versus Goliath struggle. While the case provides many lessons on how a SLAPP suit itself can be converted into a critical media event (which can generate further adversity for companies), the stranglehold that companies often have over the media makes it unlikely that this will be a common occurrence. The phenomenon of paid news, for instance, more-or-less ensures that companies who are using SLAPP suits are unlikely to face challenges from other media houses.
If we recognise that corporate censorship takes a form similar to either state or lumpen bullying, there is a need to develop principles that proactively protect citizens against it. The Supreme Court in S Rangarajan v Jagjivan Ram clearly established that freedom of speech and expression does not just entail the right of a person to express his opinions freely, but also entails a duty cast upon the state to ensure that there is no interference with such a right.
The court held that:
If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of the threat of demonstration and processions or threats of violence. That would be tantamount to a negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.
The need of the hour is a similar recognition that bullies do not necessarily wield lathis, but instead, often come dressed in impeccable suits.
~Lawrence Liang is a lawyer and writer at the Alternative Law Forum, Bangalore. He is also a distinguished fellow with the Centre for Internet and Society.