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SLAPP suits in the Indian context

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The term 'SLAPP', which stands for strategic lawsuit against public participation, was coined by two University of Denver professors, Penelope Canan and George W Pring. A SLAPP suit is usually meritless in that it 'is intended to intimidate and silence' a party from engaging in free speech, by burdening them with the cost of a legal defence until they abandon their criticism or opposition. The concept of a SLAPP lawsuit evolved in the US, where it was observed that certain lawsuits were filed targeting individual or group litigants who voiced their concern over important or considerable social issues in the public arena.1 The aim of filing such suits was not essentially to win the lawsuit but to impose financial burden on the individual or group litigants, by means of incurring legal costs in defending the lawsuit and to silence them from exercising free speech.

SLAPP suits are routinely filed for libel, slander, defamation, abuse of process, malicious prosecution, conspiracy, invasion of privacy, and tortious interference with contract or business relationships. The most common SLAPP suits have often involved a powerful corporation suing local citizens for speaking against their company. Concerned with the rising number of such SLAPP suits, 26 states in the US enacted anti-SLAAP legislation, though none such equivalent can be found in the US federal law. The law so enacted by the different states in the US can be separated into three categories: narrow, moderate and broad (however, not the subject matter for the present article).

As well as these US states, a large number of jurisdictions across the globe have outlawed SLAPP suits. However, in India there is no specific enactment on the subject matter. Rarely have the Indian courts faced questions on SLAPP suits. It is possible that, in the conspicuous absence of regular determination of law suits to attain the character of a SLAPP suit, the Indian jurisprudence may not have much to contribute on the subject.

Legislative Framework

Worldwide anti-SLAPP statutes or provisions are a way of outlawing such suits. However, even then, careful consideration has to be given vis-à-vis the rights of the plaintiff and the defendant to such a suit. Although one of the purposes of anti-SLAPP statutes is to quickly throw out meritless suits meant solely to silence a petitioner, the main challenge to enacting an anti-SLAPP statute is that by defending one person's right of petition, the statute may intrude on the opposing person's right to petition, even if that party may not be fraudulently petitioning.2

There is no direct statutory provision under Indian law that can be said to be anti-SLAPP. It would perhaps be correct to say that the concept of SLAPP suits in Indian jurisprudence has not been present, unlike the US system. The basic aim of an anti-SLAAP statute is to counter and dismiss meritless petition.

In the Indian context, perhaps the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 (CPC) may be stretched to say that the principle of anti-SLAPP is present within a statutory provision. Order 7 Rule 11 of the CPC deals with rejection of plaint and the court is mandated to reject the plaint for failure to disclose a cause of action. Judicial interpretation of the aforesaid provisions reveals that the court has to form its opinion on the non-disclosure of any cause of action in the plaint by a bare and meaningful reading of the plaint only.3 However, the defendant has to make out a clear case only by reading the plaint that the plaintiff has failed to disclose a cause of action as against the defendant.

Judicial Precedents

In the absence of any express statutory provisions regarding the principle of anti-SLAPP, Indian courts have not had many occasions to consider such principle. 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. However, the principle is slowly being plead before courts in India as well. Two judgments have been rendered by the Delhi High Court with regards to SLAPP suits and both the judgments are a recent phenomenon, occurring as late as 2009.

In Crop Care Federation of India v Rajasthan Patrika (PVT) Ltd & ors [2009], the Delhi High Court was confronted with the following facts.

The plaintiff 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 with 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. 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.

After a close scrutiny of the submissions, 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.

The court also held that the suit contained all the ingredients of a SLAPP suit, intendeding 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 suit was not brought by a company really aggrieved, as a manufacturer, who alone could have claimed a cause of action, but virtually a trade body, though created as a company limited by guarantee. The attempt was plainly to stifle debate about the use of pesticides and insecticides. Whether such use, or overuse, of pesticides over time would affect plant or human life could be a matter of discourse, but certainly not one that could be stifled through intimidatory SLAPP litigation.

In light of the above discussions, the court held that the plaint, read as a whole, could not be said to have disclosed a cause of action, disclosing any defamation and therefore the plaint was rejected under Order 7 Rule 11 of the CPC.

In Tata Sons Ltd v Greenpeace International & anor [2011], the plaintiff, Tata Sons, claimed a decree for permanent injunction, and a decree for damages to the extent of ten crores, 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 by the title 'Turtle v TATA' in which the users of the game read statements like:

'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 after Ratan Tata, chairman of the Tata Group), matty, Natty or Tinku.'

The plaintiff alleged that such statements over the internet were clearly defamatory.

The defendants contended that here was a global organisation consistently 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 was of the opinion that the issue, which the defendant's 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. The court held that whether there was libel or not would be a matter of trial and, therefore, the granting of an injunction at such an intermediate stage would freeze the entire public debate on the effect of the port project on the olive ridley turtles' habitat.

Conclusion

The original concept of SLAPP suits was closely related to freedom of speech and the right to petition. In the words of New York Supreme Court judge Nicholas Colabella J, SLAPP suits were graphically described as:

'Short of a gun to the head, a greater threat to first amendment expression can scarcely be imagined.'4

In India, the concept is still in its nascent stage with hardly any jurisprudence or discourse both in the academic and judicial circles. The recent case laws have introduced the doctrine into Indian law and perhaps in time it will evolve as an accepted principle in a court of law.

Crop Care and Tata Sons highlight the significant role of the media in educating the public with respect to crucial issues that may have far-reaching consequences. Informed by the media, public-spirited and ordinary citizens should be able to voice concerns on issues that deserve attention. Recognition of the doctrine of SLAPP suits will not only protect free speech and encourage critical thinking but also increase participation in government. However, at the same time, it should be borne in mind that defending one person's right of petition should not intrude on the opposing person's right to petition.

(The views expressed are those of the authors and do not reflect the official policy or position of Amarchand Mangaldas.)

By Ajoy Roy, partner and Tamal Mandal, associate, Amarchand Mangaldas.

E-mail: ajoy.roy@amarchand.com; tamal@amarchand.com.

Notes
  1. See Beatty, Joseph W, The Legal Literature on SLAPPS: A Look behind the Smoke Nine Years after Professors Pring and Canan First Yelled Fire (9 UFLJLPP 85).
  2. See Duracraft Corp v Holmes Prods Corp [691 NE2d 943 (Mass 1998)]. Duracraft addresses the unfairness of Massachusetts' anti-SLAPP law in allowing one party to petition its case while not allowing the other to do the same.
  3. See T Arivanandam v T Satyapal [AIR 1977 SC 2421]. Held that if on a meaningful-not formal-reading of the plaint, it is manifestly found to be vexatious and meritless, in the sense of not disclosing a right to sue, the judge should exercise their power under Order 7 Rule 11 of the Civil Procedure Code taking care to see that the ground mentioned therein is fulfilled.
  4. Crop Care Federation of India v Rajasthan Patrika (PVT) Ltd & ors [2009].

Crop Care Federation of India v Rajasthan Patrika (PVT) Ltd & ors [2009] CS (SO) 531/2005

Tata Sons Ltd v Greenpeace International & anor [2011] IA No 9089/2010 CS (SO) 1407/2010

 

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