Browbeating Free Speech

In his profile of Bennett Coleman & Co Ltd (BCCL) vice chairman, Samir Jain, in The Caravan magazine, Samanth Subramanian aptly describes how BCCL, owner of Times Publishing House (TPH), uses defamation lawsuits as a weapon to suppress any criticism, irrespective of its fairness or otherwise:

The company eagerly pursues legal action over any perceived slight, however inconsequential or well-founded. Vineet Jain, Bennett Coleman’s managing director and younger to his brother Samir by 12 years, once promised to sue Maxim because it had printed—without naming him—a photo from one of his pool parties, showing him and a friend in the water with two models. Pradyuman Maheshwari, a columnist in Mumbai, shut down his small, chatty media blog after Bennett Coleman threatened to sue him unless he removed 19 posts about the company. “They said, ‘You’ve been running this campaign against us,’” Maheshwari told me. “One executive there had this habit of filing suits from Sikkim. They were going to file across the country!” The company has now announced plans to sue Zee News after a Zee Business editor was caught, in a sting video, telling Jindal Steel officials: “ET mein to front page stories bik rahi hain aaj kal (Even the front page stories in Economic Times are being sold).” Fear of the Jains’ legal reach is endemic. As a result very few of the people I spoke to—numbering roughly 50, including phalanxes of editors, managers and journalists, both bygone and present-day—agreed to be identified by name.

Along the same lines, Paranjoy Guha Thakurta writes on the The Hoot:

Its financial clout and marketing muscle have made BCCL’s promoters confident of remaining market-leaders and contemptuous of competition. The Times of India used to carry a slogan, “The leader guards the reader”, even as its rivals accused BCCL of compromising ethical values by, among other things, masquerading advertising and news and working out “private treaties” or financial arrangements with advertisers.

The latest salvo from the top legal guns of BCCL is a legal notice threatening both civil and criminal defamation suits against Aparajita Lath, a student blogger at SpicyIP (a leading blog on Intellectual Property Law), for her blog post on the 19-year dispute between the Financial Times Ltd. and the Times Group (for the purposes of this article, “the Times Group” is being used conterminously with BCCL and TPH) over the “Financial Times” trademark.

The Legal Notice

The Times Group’s lawyers must have imagined that this legal notice would silence its target. However, Shamnad Basheer, the founder of SpicyIP, did a withering evisceration of the lawyers’ claims and made it evidently clear that if need be, the tables would be turned against them.

If I might add to Basheer’s reply, the notice from BCCL reads more like one issued by a court to a contemnor, since it alleges Lath’s post impedes the course of justice. It seeks to portray the Times Group as the vanguard of the Indian judiciary’s prestige, and alleges that vested foreign interests (obviously referring to its rival Financial Times) deride the judiciary in India. It also takes a gigantic leap of imagination in imputing that the said post has been published at the behest of some third party. The said notice also mixes up its intended purpose, and in some paragraphs, reads like a memorandum of appeal to a court -- calling Financial Times obsessive, boasting about the Times Group’s mammoth circulation and dismissing even a whiff of a thought of competition.

The purpose of highlighting certain portions of the legal notice was only to drive home the point of how entirely misconceived such notices are. Parsing through seven pages, the only contentious, “legal” points I could come up with were two:
First, can referencing from other sources result in transfer of liability?

Lath had relied upon an article by Paranjoy Guha Thakurta in Mint which quoted what Mr. Harish Salve, one of India’s leading litigators and the counsel for Financial Times, had said about the Times Group: “It is my perception that the litigation is contrived and yet another example of how clever ‘lawyering’ can use Indian courts with their attendant delays to great advantage.” Incidentally, Guha Thakurta, whose article formed one of Lath’s references, has also been slapped with a notice by the Times Group.

In case the courts agree with such a contention, we would be left wondering as to whether to ever cite anything at all. And the fear of such apparently “noxious” citations will effectively deter most people from expressing their opinions. Second, whether Lath’s post can avail of the fair comment defence in defamation law.

The House of Lords, in Tse Wai Chun Paul v. Cheng, [2001] held the uncontroversial ingredients of the fair comment defence were that the comment must be on a matter in the “public interest”, that it must be recognisable as a comment, that it must be based on facts that are either true or privileged, and that the comment must be one that an honest man, no matter how prejudiced or obstinate, could have made. The fourth ingredient was stated to be: “The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made.”

In the celebrated case of Kemsley v Foot [1952] A.C. 345, the House of Lords held that one has to see “whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action”. Their Lordships continued: “If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based.”

On this count, Lath has left no stone unturned to report incontrovertible facts, although, as Basheer categorically states in his reply, the Times Group’s lawyers had themselves erroneously interpreted reality. Ironically, it is Lath’s very reliance on facts that has led her to be charged with defamation.

“Chilling” effect of SLAPP suits
Such a legal notice is nothing but the first step in a SLAPP (Strategic Lawsuit against Public Participation) suit, a term coined by University of Denver professors Penelope Canan and George W. Pring. These aim at squashing the dissemination of information critical to informed, public decision-making, thereby decimating any form of consumer choice.

Such cases are usually frivolous or vexatious, and would be dismissed in limine (at the very threshold). The analysis of the contents of the present legal notice bears ample testimony to this. One might be tempted to ask: why do corporations resort to such strategies? The only answer is, intimidation and harassment. Most people would be coerced into silence given the manner in which such litigation is conducted. For instance, recently when The Caravan ran a cover story on a top law officer and his links with Reliance industries, the latter resorted to the same strategy of intimidation as BCCL is doing today.

An article in The Caravan about the Indian Institute of Planning and Management (IIPM) is another example. In its now celebrated, and still ongoing, battle that began with a stinging commentary by Siddhartha Deb on IIPM, a court in Silchar, where IIPM filed the case against The Caravan, held that “the words ‘proprietor’, ‘small’, ‘run of the mill’, ‘outskirts of Delhi’ and ‘the road is dusty’ have been used by the Defendants with the aim to malign and defame the heads of IIPM as well as the IIPM institute.” The court granted an injunction against any publication of the impugned article.

Anyone who had read the original article would have made out how such an interpretation makes a complete mockery of judicial and legal reasoning. But this article cannot be legally hosted or found on the Internet or in print, thanks to the aforementioned injunction although a couple of blogs continue to host it. But those are subversive acts; effectively, the expose against IIPM remains inaccessible to the public. The Caravan has posted details about the case on its website.

Big corporations the world over have adopted this as one of their principal weapons for silencing whistle-blowers and conscientious objectors, thereby zealously safeguarding impunity. While in the US, states like New York and California, among others, have legislations providing for a “SLAPP- Back”, ie shield laws against such suits, such protection is not available in India. Ujwala Uppaluri, another NUJS student, has studied this trend with regard to India. Just as in the field of Intellectual Property Law, “patent-trolling” has come to symbolise innovation through intimidation, such SLAPP suits are emblematic of the same malaise that is getting worse.

Who Blinks First?

SpicyIP has heralded its steadfast collective resolve to remain undaunted in the face of being threatened with intimidatory litigation, but that is an exception. Till now, the Times Group has had a winning streak with the intrepid Pradyuman Maheshwari’s Mediaah Weblog, which never stopped being a persistent thorn in their flesh, being one of the most illustrious of victims. A vivid chronicle of the Times Group’s “victory” over Maheshwari is available here: http://ht.ly/loazt

The Times Group might not go ahead with prosecuting Lath. Apar Gupta, a Delhi-based litigator and no stranger to SLAPP suits, opines: “It is unlikely that the sum of Rs 100 crore indicated as damages in the notice will be pressed if an actual case for defamation is filed. This is due to the ad valorem imposition of court fees in most parts of the country. For instance, a suit for defamation in the Delhi High Court valued at Rs 100 crore would attract a payment of court fees at the rate of 4% -- which in itself comes to Rs 4 crore.” Would an entity like the Times Group be willing to invest so much in pursuing this strategy? While this question remains moot, one cannot help but mourn the slow, excruciating asphyxiation of free speech.

(Full disclosure: Aparaijta Lath is a student at National University of Juridical Sciences (NUJS), the same law school from which the author of this article graduated in 2007).