By Dilip Bobb
A SLAPP suit is described as an intimidation lawsuit intended to censor and silence critics by burdening them with the cost of a prolonged legal defence until they abandon their criticism or opposition. A prime example was the case involving Karan Bajaj, the founder of WhiteHat Jr. now owned by cash-rich Byjus, who filed a 2.6 million dollar lawsuit in 2020 against Pradeep Poonia, an engineer who publicly accused the company of having a toxic work environment and unethical business practices. The Delhi High Court issued an interim order asking Poonia to remove certain tweets from his account. In 2021, Bajaj rescinded the lawsuit. Globally, SLAPP was again used in recent comments by the website openDemocracy regarding legal action pursued against them by Jeffery Donaldson, the Democratic Unionist Party leader of the Northern Ireland political party, over a story they published. As open Democracy said: “Those two years cost us a lot. We spent months dealing with legal letters, burning through thousands of pounds and precious time that would otherwise have been spent on our journalism. The psychological toll was even higher.” The case never went to court.
That is the prime illustration of a typical SLAPP lawsuit. The plaintiff does not normally expect to win the lawsuit. 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 suit also has the secondary motive of intimidating others from participating in the suit. Essentially, SLAPPs bring about freedom of speech concerns due to their effect and are often difficult to filter out and penalise because the plaintiffs attempt to cover up their intent to censor, intimidate, or silence their critics.
Anti-SLAPP laws have been tried but come under criticism from those who believe that there should be no barriers to the right to petition for those who sincerely believe they have been wronged, regardless of ulterior motives. However, there are major difficulties in drafting SLAPP legislation. India has witnessed two other prime examples according to a recent analysis by Ajoy Roy and Tamil Mangal, of the law firm Amarchand Mangaldas. They found that in India, there appears to be no specific enactment on SLAPP, even though it is used quite often by the rich and powerful. There is no direct statutory provision under Indian law that can be said to be anti-SLAPP. The concept of SLAPP suits in Indian jurisprudence is hardly ever witnessed. The closest legal parallel would possibly be Order 7 Rule 11 of the Code of Civil Procedure, 1908, in which the court is mandated to reject the plaint for failure to disclose a cause of action. However, judgments on rejection of plaint under the provisions of Order 7 Rule 11 of the CPC have not discussed the applicability of the principle of anti-SLAPP provisions.
The authors refer to two judgments in the Delhi High Court with regards to SLAPP suits. In 2009, a case relating to the Crop Care Federation of India vs Rajasthan Patrika (Pvt.) Ltd & ors [2009], in the Delhi High Court was a typical example. The plaintiff was a company who were insecticide manufacturers, licensed to produce such goods. The first defendant was the newspaper Rajasthan Patrika. 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.
The defendant filed an application under Order 7 Rule 11 of the CPC, contending that for a suit of defamation to succeed, the plaintiff should be an individual or a determinate body. It was argued that the plaintiff, being an association of various firms, companies and individuals from all over India, could not be termed as a determinate body, and therefore, a suit for defamation would not be maintainable. The Court was of the opinion that since both parties admitted that there was no direct reference to the plaintiff and/or any of its members in the impugned articles, it would be wrong to say that any reference had been made to the plaintiff so as to hold that defamation had taken place. The Court was of the opinion that a suit for defamation could not be maintained if the alleged defamatory statements did not refer to a determinate or definite class or group of persons.
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The Court also held that the suit contained all the ingredients of a SLAPP suit, intended to censor, intimidate and silence critics. It observed that the concept of a SLAPP suit can be defined more broadly to include suits about speech on any public issue and the present suit was an indication in that direction. It held that the plaintiff’s attempt, by filing the present suit in Delhi, in relation to publications in Rajasthan, on what were matters of public concern but called for debate, was to muffle the airing of such views. The attempt was plainly to stifle debate about the use of pesticides and insecticides. The Court held that the complaint could not be said to have disclosed a cause of action, or disclosing any defamation, and therefore the plaint was rejected under Order 7 Rule 11 of the CPC.
The other case described by the authors was Tata Sons Ltd vs Greenpeace International & anor [2011]. The plaintiff, Tata Sons, claimed a decree for permanent injunction, and a decree for damages to the extent of Rs 10 crore, against the defendants for defamation with the ulterior motive of damaging its reputation and infringement of its trade mark. The plaintiff alleged that the defendants made an online game titled “Turtle v TATA”. The defendants are a globally known environmental group and their satirical game referred to the threat posed to the olive Ridley Turtle by a Tata port project. The introduction to the game says: “The aim of the colourful and noisy video game is to help the yellow turtles eat as many little white dots as possible without running into Ratty (presumably Ratan Tata, chairman of the Tata Group)…”. The plaintiff alleged that such statements over the internet were clearly defamatory.
Greenpeace contended that theirs was a global organisation aimed at espousing environmental issues and the impact of development at the cost of the environment. They argued that the suit was a SLAPP suit intended to silence, censor and intimidate the defendants and other third parties, who were concerned with the negative effect of the Dhamra port project on one of the largest nesting grounds for the olive Ridley sea turtle and two adjoining
protected areas. It was submitted that the suit had been instituted with the only motive being to stifle honest and bona fide criticism by threatening to burden the defendants with financial consequences.
The Delhi High Court, while dismissing the application filed by the plaintiff, held that the courts in different jurisdictions had put great value on free speech and its salutary catalysing effect on public debate and discussion on issues at large. It said that the issue, which the game sought to address, was also one of public concern, and the Court could not sit in value judgment over the medium of expression chosen by the defendant since, in a democracy, speech can include forms such as caricature, lampoon, mime, parody and other manifestations of wit. Clearly, as the authors conclude, in India, the concept of SLAPP is still in its nascent stage with hardly any jurisprudence or discourse in judicial circles.
Internationally, there have been a number of SLAPP cases. At the time of her assassination in 2017, Maltese investigative journalist Daphne Caruana Galizia was facing 47 civil and criminal libel suits, filed in various jurisdictions from Malta to the UK and the US. In Poland, the country’s second largest daily newspaper, Gazeta Wyborcza, has received over 55 legal threats since the Law and Justice Party came to power in 2015. The Polish cases were brought by the deputy prime minister and party chairman Jarosław Kaczyński and other powerful people with ties to the governing party.
People or organisations who instigate Slapps are often powerful and well-funded, while defendants tend to be people and organisations with significantly less resources and influence. Many independent journalists, including in India, who bring attention to controversial issues or scandals, do not have the financial and legal support of a major media company behind them. Journalist Rana Ayub is a prime example, with a number of cases filed against her for defamation. Slapp also resulted in the publication of Karen Dawisha’s book Putin’s Kleptocracy, being blocked.
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In Canada and in some US states, anti-Slapp legislation has existed to protect free speech. In the European Union, and the UK, where no such laws exist, the increasing use of SLAPPS has worried civil rights activists and journalists, and there are now attempts to introduce similar legislation in both entities. The Coalition Against SlAPPS (CAS) in Europe, launched in March 2021, saw 106 civil society organisations sign a public call for the Council of Europe to take steps to combat SlAPPS.
In January 2021, the UK Anti-Slapp Coalition was formed by 22 organisations. It calls for a formal UK parliamentary inquiry to examine this issue and to consider a UK anti-Slapp law.
On November 25, 2020, the European Parliament passed a resolution expressing “its continued deep concern about the state of media freedom within the context of the abuses and attacks still being perpetrated against journalists and media workers in some Member States because of their work” and called on the EU to “establish minimum standards against SLAPP practices”.
In the US, 31 states have enacted statutory protections against SLAPPs. However, these laws vary in scope and level of protection, and many lack specific protection. Untill greater and more concerted efforts are made, SLAPP will continue to be a major threat to free speech, journalism and democracy across the world.