It is not news in this country when the law or other institutions of the state, are used as tools by which to threaten or intimidate citizens into submission to a particular course of action or to a particular point of view. Unfortunate as that is, today’s post will deal with the rising incidence of SLAPP suits, an abuse of the adjudicatory process that is also a feature in a number of jurisdictions elsewhere.
Our interest in them arises from two sources. The first is the particular damage that this device is able to do free speech. Its effects were quite picturesquely described in the following terms by the Delhi High Court in M/S. Crop Care Federation Of India v. Rajasthan Patrika (Pvt) Ltd. “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.” [Rajasthan Patrika in turn borrowed this language from Gordon v. Marrone, a case in the New York Supreme Court.] The second is this piece of news.
About the Phenomenon
The term “Strategic Lawsuits Against Public Participation” is rather self-explanatory. Nevertheless, some of its features bear the explicit articulation:
First, there is always, and necessarily, a power imbalance between the parties in such cases: the plaintiff or complainant will always have greater and often disproportionately greater access to the resources necessary to enter and sustain a litigation, in addition to social, political or corporate power. A simple shorthand for SLAPP suits will always be Deep Pockets v. Free Expression. And so it has been in India, as this article evidences.
Second, there is always one object: to intimidate a target into silence or apology by way of legal action or the threat of it. SLAPPs are a win-win play for those that employ them: targets are likely to bow to the pressure given that they will not have access to the resources to mount a legal defense. Even where the defendants’ (relatively scarce) resources are diverted to the defense of their speech, even assuming that the threat and costs of litigation, the civil damages and/or penal consequences do not intimidate them, their opportunity cost will be considerably higher than that of the other party. Given the ordinary rigours of the adjudicatory process and the ubiquitous delays associated with it in India, however, the harassment function of the SLAPP is always achieved.
Third, SLAPP suits are always characterized by a flimsy, frivolous or even non-existent cause of action. They will have done their damage irrespective of, and before, the outcome of the suit is decided. The question of legal tenability, and in these cases, its absence is really not one of any relevance. The real damage is done by forcing defendants to bear the trouble (monetary and otherwise) with preparing and mounting the legal response/defense itself, rather than by the litigation’s ultimate success or failure. A little amusing then that in the latest instance, which I describe later in this post, it is a law student, presently in law school and writing for a legal blog who finds herself on the receiving end of such threats.
Defamation is a classic tool by which contrary opinions are sought to be silenced by those in (political, social or corporate) power. Rajeev Dhavan argues here that defamation is becoming an increasingly popular tool by which the “politics of exposé” and whistleblowers participating in it are being threatened. [SLAPPs in India have arisen on the back of other causes of action as well. See, for instance, the case of S. Khushboo v. Kanniammal and Frontline discussing it.] Lawrence Liang details a number of older instances in which defamation has been used in Indian courts to silence speech here.
Much more recently, Tata Sons Ltd. v. Greenpeace International, involved intellectual property and defamation claims in a game designed to bring attention to the threat to Olive Ridley turtles from developmental activity in Orissa. The IIPM saga that rose to prominence in February this year is another instance of such litigation. It is also one that carries the added ignominy that a university, whose function one would presume is to foster critical thinking and the ability to constructively respond to criticism, would sue for defamation against criticism and use the state apparatus to employ opaque means by which to silence the allegedly offending content online [see here and here]. IIPM also demonstrates how SLAPPs will involve what have been called “creative ways” to abuse of process: more than one suit can be filed, and they can be filed in more than one jurisdiction or in jurisdictions in which it is difficult for the target of the suit to appear or defend him or herself.
On Attempts at Silencing Academic Opinion
While the Activist v. Corporation trope is by now a tired one, it appears that the incidence of SLAPP proceedings, both civil and criminal, against commentators and academics are on the rise:
Ajay Shah’s case has been a well-documented one [see here and here], and one in which the Bombay High Court did not appear to appreciate the SLAPP dynamic. Closer to home, Shamnad Basheer [see here and here] a professor at NUJS and founder of SpicyIP saw a defamation SLAPP suit for what appears to be an exercise in only academic analysis.
As of the 21st of this month, it was reported that a student contributor at the same blog, Aparajita Lath faces similarly suspect allegations of defamation from a newspaper [see here and here]. Here is a case not of Activist v. Corporation or Whistleblower v. Government, but of Academic Opinion v. Press. There is a special and truly unfortunate irony in the press having recourse to tools like the defamation suit, and even more egregiously, the criminal complaint.
Why We Worry
A number of rights of the target are ordinarily affected by SLAPP suits. In what was a significant case for the United Kingdom involving a defamation suit brought by McDonald’s against two authors of a pamphlet criticizing it, the European Court of Human Rights (‘ECtHR’) recognized in Steel and Morris v. United Kingdom a number of the following rights:
First, there is the right to free expression itself. Violations of this right would arise on two levels, although the second may not be actionable. First, there is the right of the defendant to the SLAPP suit. Steel and Morris affirmed that the fact that the defendants to the defamation suit were not journalists did not mean that the scope of their free speech protection would differ [¶89]. Instead, it held that “the limits of acceptable criticism” where “large public companies” were concerned was wider than those that would otherwise apply [¶ 94]. India’s Supreme Court has, in one notable instance, disagreed on the proposition that bloggers should have similar rights to journalists. Next, there is the chilling effect: others placed similarly to the targets of SLAPP suits would self-censor to avoid legal retaliation for their views and the significant cost of defending themselves.
The importance of Steel and Morris however comes from this latter set of holdings. The ECtHR found that the right to fair trial, in civil and criminal cases, which included the right of access to court and to justice presumed an “equality of arms” as between contesting parties [¶ 59]. It held to this effect on the understanding that European Convention on Human Rights, the underlying rights instrument, was a guarantee of practical and effective rights. In the circumstances of that case, it found that since the financial disadvantage of the defendants in the defamation suit disallowed them the opportunity to mount an effective defence, there was a clear inequality of arms with McDonald’s that rendered the trial unfair for the purpose of Convention Article 6 (1) [¶72].
The IIPM blocks add a further dimension to the problem. When the content complained against is online, India’s lack of clear legal principles to determine, and more crucially limit, where the cause of action will have arisen and can be tried will only exacerbate the blogger’s situation, given the arguably global spread of an audience for online content.
A final point about this trend, particularly as it relates to silencing academic comment, is that it is a dangerous one, and one against which we must all speak out: these cases, in which the challenged content offers studied comment against the powers that be, will be a good acid test for the strength of our speech protections as they fall squarely within the class of speech which constitutional protections seek to maximize and disinhibit. It should be the very minimum that the Article 19(1)(a) guarantee entails.
More on this in a second post.
Disclosures: Aparajita Lath is a student of NUJS, as are a number of us on the Free Speech Initiative. In addition, I serve on the Board of Editors of the NUJS Law Review along with her. This post, however, is intended to reflect on the growing (and increasingly visible) incidence of the SLAPP suit and its effect on our freedoms to comment and criticize and to have access to articulations of the contrarian view.