A cheeky video game by Greenpeace but corporate giant Tata is not amused
The defamation suit against the environmental group is the latest in a string of SLAPP litigation by corporate against activists
and the effect is chilling, says KAMAYANI BALI MAHABAL.
The SLAPP (Strategic Litigation Against Public Participation) suit by the House of Tatas against the international environmental NGO,Greenpeace, is just the latest in a string of such litigation against activists who dare to question corporate giants and campaign against them.
The TATA filed a defamation suit against Greenpeace, in the Delhi High Court in July 2010 for promoting an online video game called Turtle vs Tata. The suit demands damages of Rs10 crore from Greenpeace for defamation and wrongful use of the Tata trademark in their game. Greenpeace has been campaigning for several years to get the TATAs to drop their controversial port at Dhamra, Orissa because they fear it will destroy the habitat of the Olive Ridley turtles.
So what is SLAPP? The use of a lawsuit known as SLAPP (Strategic Litigation Against Public Participation) is a tool increasingly being used by individuals and industry to threaten the community's rights and their ability to participate in public debate and political protest.
For Greenpeace, this is not the first time the Tatas used SLAPP as a ploy to silence it. In 2008, an annual general meeting (AGM) of the Tatas was preceded by a SLAPP suit the corporate house filed against Greenpeace seeking prohibitory orders on any protest or activity by the environmental group.
However, in an order passed by Justice V.M. Kanade, of the Bombay High Court, the environmental group’s democratic right to peaceful and non-violent protest was upheld.
The acronym (SLAPP suit) was coined in the 1980s by University of Denver professors Penelope Canan and George W. Pring. The term was originally defined as "a lawsuit involving communications made to influence a governmental action or outcome, which resulted in a civil complaint or counterclaim filed against non government individuals or organizations on a substantive issue of some public interest or social significance."
While individuals and NGOs cannot be directly sued for exercising their democratic right to participate in the political process, their opponents attempt to find technical legal grounds on which to limit public debate and comment. Such grounds usually include defamation, conspiracy, nuisance, invasion of privacy or the interference with business/economic expectancy.
The common feature of SLAPPs is that they are a response to some form of public participation in policy or management and aim to have a chilling effect on that participation and on the related political and social debate. SLAPPs are simply used to intimidate people; to literally scare them into silence on issues of public interest. In Canada and the US, as SLAPP became a favoured strategy of corporates, laws have been enacted to protect defendants in SLAPP cases.
Corporates in India have begun making several attempts to use this ploy to silence protestors and whistle blowers. SLAPPs require significant resources to combat, particularly when the discovery process is used as an abusive tool to harass and exhaust the resources of a defendant, who are usually activists with meagre resources.
Unfortunately, Indian authorities are yet to take appropriate action to prevent misuse of SLAPP cases. Here is a list of some SLAPP suits:
· Last year Fomento Mining Company has slapped Rs Five Billion criminal defamation suit against anti-mining activist Sebastian Rodrigues, a PhD Student for "publishing false and defamatory articles" on his blog against the company's mining operations.
· One of the worse examples of SLAPP is against Umendra Dutt, an organic farmer who started a movement Kheti Virasat Mission in Punjab. He is working to promote sustainable - ecological agricultural practices, conservation and regeneration of natural water resources and to re-establish the traditional wisdom and practices related to water. In 2006, he was sued for Rs Five Crore by United Phosphorous Limited, a leading pesticide manufacturer. What is the reason? Well, he was informing people about the public health studies on pesticide exposure and how it could lead to congenital malformations and genetic disorders!
· Endosulfan is a deadly pesticide banned in many parts of the world, But in Kerala it was sprayed for years in government-owned plantations. Today, villagers who lived close to the plantation are paying the price, despite an indefinite ban on the substance. Many of them were paralyzed or are seriously ill. Swarga and other areas like Padre, Muliyar and Bellur in Kasaragod district of Kerala have become living examples of how the poison in pesticides could be lethal to our health when used excessively and carelessly.
Dr. Mohana Kumar in Padre,in Kerala was among the first to notice that something was seriously wrong with the health of the people in the area. When he started his medical practice there in 1982, he observed that there was abnormally high incidence of diseases of the central nervous system, psychiatric problems, mental retardation, cerebral and genetic abnormalities and cancer. He started talking about it where ever he went.
Crop Care Federation of India sent him a strong legal notice threatening massive damages. In 2006, Madhumita Dutta, an environmental activist received legal summons to appear before a court in Warangal, Andhra Pradesh. The defamation case filed by the pesticide industry association Crop Care Federation claimed that Toxic Links' report, The Killing Fields of Warangal, had caused them harm. Although no companies were named, it documented over 500 deaths among pestide-exposed farmers in the cotton fields of Warangal, India where endosulfan is common.
Only last month, the judgement on the case quashed the defamation suit against the activists.
· In 2001, Shree Maheshwar Hydel Power Corp Ltd (SMHPC )had filed a suit against Narmada Bachao Andolan (NBA) seeking to restrain the movement from making public statements on its hydel power project in Madhya Pradesh. The company had asked for a permanent injunction against the activists restraining them from making any defamatory statements or declarations against the project and the project authorities or carrying out any agitation or protest against the Maheshwar project. After hearing the defamation suit, the court passed its final order observing that SMPHC had withdrawn whatever evidence had been submitted by way of affidavit and documents by tendering a withdrawal application. The Court dismissed the suit.
· We see a similar pattern in the case of PepsiCo asking for directions from the Delhi High court to stop Centre for Science and Environment (CSE) from publishing statements and to withdraw all materials from circulation and from its website. PepsiCo filed a writ petition in the Delhi High court, which said that CSE is a "non-governmental organisation (NGO) having no legal authority or recognition" and therefore, "the report prepared by a private person does not have any sanctity in law and could not have been binding upon any person, much less the governmental authorities."
Subsequently, the softdrink major withdrew the petition saying the matter was being enquired by a Joint Parliamentary Committee in which it has "full faith". The petition was declared "dismissed as withdrawn" by Justice B D Ahmed.
· In another case Dow Chemicals sought an injunction to restrain the International Campaign for Justice in Bhopal and others from picketing, holding demonstrations outside its office in Chennai, harassing and preventing employees from entering or leaving the premises. The Madras High Court held that international companies operating in India cannot claim any extra legal rights over Indian people and cannot prevent the public from holding demonstrations in front of their office.
The court noted that the people of India empowered with a constitutional right provided in the Constitution of India, are entitled to make grievance on any issue. Their mouths cannot be gagged either by the Government using its police power or the Courts by the grant of preventive injunctions. The court said: Before the issuance of a prior restraint on a citizen’s right to free expression guaranteed under Article 19(1)(a) or their right to hold peaceful assembly under Article 19(1)(b), there must be established a clear case of infringement of the right of an aggrieved person. Otherwise, the courts are bound to protect the rights of parties to express their protest on public issue.
· Recently, Jindal Steel and Power Limited lodged an FIR against Ramesh Agrawal accusing him of extorting money from the company and issuing threats to its senior management. Now who is Ramesh Agarwal? He is a founding member of Jan Chetana, an NGO which monitors mining and industrial projects in Raigarh.
Agarwal had been writing letters to the Ministry of Environment and Forests drawing its attention to violations by Jindal Power. He alleged that the company had begun construction on the site of its proposed power plant even before getting environmental clearances. The Ministry sent a team to investigate, which found the allegations to be true. The Ministry of Enviornment and Forests withdrew the 'terms of reference' to the project, in effect rejecting the proposal. After a few days, JSPL registered an FIR against Agrawal, accusing him of demanding Rs five Crore from the company!
Free speech and expression is the life blood of democracy. Any action, even civil injunctions, damages, or threat to damages, are bound to chill the exercise of that invaluable right of the people to protest. By giving such orders, or allowing claims for damages, for perceived injury to reputation, the harm done to freedom of the press, which facilitates a free flow of ideas is incalculable.
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