Strategic Lawsuits Against Public Participation, or what are commonly referred to as SLAPP suits, are filed to censor, intimidate and silence the critics who have spoken out in public interest by overburdening and exhausting them with litigation. SLAPP is a term coined by George W. Pring and Penelope Canan who published the book titled ‘SLAPPs – Getting sued for speaking out’ in the year 19961.
SLAPPs are often characterized by the power imbalance between the plaintiff and the defendants, in what can be understood as pitting deep pockets against free speech. SLAPPs are a menace because of what has been referred to as a ‘chilling effect’ on the freedom of speech and expression, thereby stifling further public participation. SLAPPs put a price tag on speaking out politically, this price comes in the form of the excessive cost of litigation, loss of time, emotional distress along with the physical and mental exhaustion of fighting a lawsuit against big and deep-pocketed organizations. SLAPPs are a threat to the democratic ideals of freedom of speech and expression, which has been opined beautifully by a New York Supreme Court Judge, J. Nicholas Colabella in Gordon v. Marrone, 616 N.Y.S.2d 98, as “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”
SLAPPs can be filed for defamation, abuse of process, malicious prosecution, conspiracy, invasion of privacy, and tortious interference with contract or business. An analysis of the trend in filing SLAPPs depicts that more often than not big corporations with deep pockets file SLAPPs against citizens and public-spirited organizations who speak up against them.
Many countries, including the USA, Canada, and Australia have passed Anti-SLAPP laws, or as they are often referred to as SLAPP backs (pun ABSOLUTELY intended!) to keep a check on the chilling effect of SLAPPs and for the protection and preservation of free speech and expression.
Anti-SLAPP laws allow the defendants to file a motion to strike or dismiss a suit during the proceeding which helps in early identification of a suit as a SLAPP suit and dismissing the suit pursuant to such law. Some laws also enable pre-trial dismissal of SLAPP suits.
The USA, for example, does not have a federal anti-SLAPP law in place, but as of 2019, 29 states in the USA have different anti-SLAPP laws. Similarly, in Canada SLAPP suits seem to be an emerging trend and different provinces have started passing SLAPP laws including Quebec, Ontario, and British Columbia.
Contrary to popular perception, the purpose behind framing anti-SLAPP laws is not the idea of malice, intent, good faith or bad faith with which these lawsuits are filed, rather 9it is the chilling effect that roots from SLAPPs which curbs public discourse and the involvement of civil society in matters of concern. Anti-SLAPP laws allow states to preserve and embolden one of the cardinal principles of a democratic government which is free speech and expression, especially when it serves the public interest.
BEING SLAPPed IN INDIA
Despite the evident lack of anti-SLAPP legislation in India, the Judiciary has made attempts to recognize the characteristics of SLAPPs in certain lawsuits to protect free speech. One of the most common ways with which criticism is sought to be suppressed is through defamation suits. For instance, in the case of Tata Sons Ltd. V. Greenpeace International2, where the plaintiff filed for decrees of injunction and damages up to ₹10 crores for defaming them. The suit was resultant to the defendants developing a game titled ‘Turtle v TATA’ which allegedly had defamatory messages being displayed to the players. The defendants argued that the game was developed as a means to point out the negative impact of one of the plaintiff’s port projects on the nesting grounds of the Olive Ridley sea turtles. They also argued that the criticism was bona fide. The Delhi High court held that the issue being sought by the defendant is one of public concern and that granting an injunction would have a chilling effect on public discourse with respect to the concerned matter. It can be inferred from this judgment that more emphasis was laid on the environmental issue being highlighted by the defendant and their freedom of speech as opposed to the alleged defamation of the plaintiff and the damage to their reputation.
An analysis of the use of SLAPPs in India also brings out an attempt at muzzling criticism made by journalists. Journalists who dissent and criticize are often SLAPPed by individuals with deep pockets who are also capable of Garnering Political influence. Subir Ghosh and Paranjoy Guha Thakurta in their book ‘Sue the Messenger: How legal arm-twisting by corporates is shackling reportage and undermining democracy in India’3 mention a collection of cases where SLAPPs have been filed by corporate entities against journalists, especially investigative journalists. The book finds mention of how SLAPPs undermine democratic values.
Recently in a judgment delivered by Madras High Court, Justice G.R. Swaminathan quashed a defamation case filed by V.V. Minerals (p) Ltd. against the editor of Economic Times and a reporter who reported on alleged illegal mining by the company. The court made reference to New York Times v. Sullivan, 376 US 254, where the Supreme Court had noted that debate on public issues should be “uninhibited, robust, and wide-open” and that it may at times include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” for free speech to be present, there also needs to be room for making mistakes. Liability for defamation should only be fixed if it was published with reckless disregard for either the truth or falsity of the statement. The court also noted that the judiciary is liable to adopt an activist role because criminal defamation has become a tool to intimidate journalists “before corporate bodies and powerful politicians whose pockets are tunnel deep and whose hands are long, even media houses having good resources have capitulated.”
In the absence of an explicit statutory provision, courts have sometimes tried to make reference to Order 7 Rule 11 of the Civil Procedure Code, 1908, which allows the rejection of a plaint on the failure to provide a cause of action. In the case of Crop Care Federation of India v. Rajasthan Patrika (Pvt.) Ltd. & Ors.4 The plaintiff was a body constituted with insecticide manufacturers and not a determinate body who filed a defamation suit against the respondent, a newspaper agency which published an article on the harmful effects of using pesticides. According to Order 7 Rule 11 of the CPC, the plaintiff should be a determined body or individual. On the application of this provision, the Delhi High Court quashed the defamation suit. However, Justice Ravindra Bhat also pointed out that the particular suit contained all the necessary ingredients of a SLAPP, intended to intimidate, silence and censor critics with a view to burden them with the cost of litigation until they abandon their criticism or opposition. Although this approach highlighted one way to resort to existing legal provisions to quash SLAPP suits, it is not sufficient protection to those who are SLAPPed in India.
Over the past few decades, SLAPPs have increasingly become a cause of concern. By muzzling free speech, SLAPPs Undermine the Cardinal values of democracy and the very concept of a SLAPP undermines the idea of a democracy that is of the people, by the people and for the people. Free speech and expression is one of the underlying principles of democracy which SLAPPs aim to curb. Freedom of Press is also implicit under Article 19(1)(a), SLAPPs filed by big corporations, especially cases of criminal nature, also have a chilling effect on journalists and their exercise of constitutionally guaranteed freedom of press. It is alarming for students, academicians, press, whistleblowers speaking against the government, or organizations and NGOs speaking for Public Cause. Any attempt to criticize can be quashed by powerful individuals and organizations who have access to money, lawyers, and political influence.
In the case of Crop Care Federation of India v. Rajasthan Patrika (Pvt.) Ltd. & Ors. The court also observed the need to have a broad definition of a SLAPP that should include suits filed based on any speech made on any public issue. This case had in fact taken leaps and bounds when it came to identifying that people are SLAPPed in India for engaging in public debate and pointing out the glaring need to have a SLAPP law, but despite that, there has been a lack of efforts to bring about an Anti-SLAPP legislation.
It is imperative now for the Indian legal system to have an Anti-SLAPP legislation to protect, preserve, and embolden the freedom of speech and expression enshrined in Article 19 of the Constitution of India. Anti-SLAPP laws should contain a broad definition of a SLAPP which provides protection to any expression made on any public issue on any public forum so as to provide the full extent of protection to free speech. Larger the scope of an Anti-SLAPP Law is, the greater is the extent of protection given to the defendant and their rights. SLAPPs muffle voices that try to criticize actions that are harmful to civil society and the environment. The legislators of a democratic nation then become duty-bound to give protection and preservation to freedom of speech, expression and that of the press.
[ Vidhi Gupta, is a student of law at Dharmashastra National Law University, Jabalpur]
1. George W. Pring and Penelope Canan, SLAPPs – Getting sued for speaking out (1996).
2. Tata Sons ltd. v. Greenpeace International, 178 (2011) DLT 705
3. Subir Ghosh and Paranjoy Guha Thakurta, Sue the messenger (2016).
4. M/S Crop Care Federation of India v. Rajasthan Patrika (Pvt.) Ltd. & ors, 2009.