SLAPP and tell
Book review
Sue the Messenger, By Subir Ghosh with Paranjoy Guha Thakurta,
Published by AuthorsUpFront / Paranjoy,
New Delhi, April 2016,
Price Rs 257
We live in the age of SLAPP (Strategic Lawsuit against Public Participation) lawsuits, where powerful corporations, businessmen and politicians pre-empt any public criticism by suing journalists and commentators for civil and/or criminal defamation. The aim of such litigation is hardly ever to win, since the facts in question are usually true, but instead to intimidate possible critics with the cost of defending an expensive lawsuit.
The threat of getting sucked into the snail-paced Indian legal system, coupled with high legal fees, can have a chilling effect on future reportage of the same topic by others.
Subir Ghosh and Paranjoy Guha Thakurta’s new book, Sue the Messenger, chronicles some of the most widely reported SLAPP litigation in India, but only those, in the recent past – the only exception being a fascinating account of the book Mystery of Birla House which was published in September, 1950 and which soon disappeared from the market. Like their previous work, Gas Wars, aims at painting a “big picture” and “does not purport to be a veritable and comprehensive catalogue of defamation cases or SLAPP suits filed in India; and, nor does it want to come across as an academic treatise on the subject. It is a collection of stories about stories”.
To the credit of the authors, this book achieves their goal. AT 211 pages, it’s a breezy read which you can complete in a couple of days.
The first two chapters on Reliance’s war against the Polyster Prince authored by Hamish McDonald and Sahara’s lawsuit against Sahara: The Untold Story by Tamal Bandyopadhyay, are quite easily the best chapters of the book. In the first chapter, the authors get a first-hand account of McDonald’s travails while he was trying to get the Polyster Prince and then subsequently Ambani & Sons, published in India.
Even more interesting is the cheeky reproduction, in this chapter, of several passages from Ambani & Sons that did not find their way into the sanitised version published by Roli Books in 2010. The authors claim that the sanitisation happened due to executives from Roli meeting the top brass of Reliance but the source for this saucy trivia isn’t disclosed and that in itself leaves the authors open to a potential legal claim.
Similarly, the second chapter on the lawsuit against Sahara: The Untold Story is based on an extensive interview with Bandyopadhyay where he recounts the negotiations with the Sahara Group before his book could be published. Even the fourth chapter on the attempts of Keya Acharya to report on Karuturi Global’s legal travails in Africa is a riveting read because the chapter provides Acharya’s account of events - how she covered the story and how the Inter-Press Service (IPS) yanked her story from the website on receiving a legal notice from Karuturi Global.
The remaining chapters of the book are unfortunately a run-of-the-mill account of already well known SLAPP litigation and these chapters are based mostly on secondary sources. These narrations include SLAPP notices or lawsuits by Essar against Caravan and Greenpeace, by IIPM (Indian Institute of Planning and Management) against Caravan and Maheshwar Peri, by CCFI (Crop Care Federation of India) against Rajasthan Patrika and the Centre for Science & Environment, by MCX (Multi Commodity Exchange of India) against Professor Ajay Shah, by the Times Publishing Group against SpicyIP blogger Aparajita Lath and Paranjoy Guha, by Natco Pharma against Professor Shamnad Basheer. Two of these cases dealt with – involve the authors themselves, the first Gas Wars, received a legal notice from the Ambanis and the second was the Times Publishing case involving SpicyIP’ Lath – Thakurta also received a legal notice in that case. In all of these cases, the authors don’t really add anything new to what is already available in the public domain, not even so much as an interview with the protagonists of the lawsuits.
The lack of a discussion on lesser known SLAPP litigation was also a rather disappointing aspect of the book. There are several such cases which receive little attention from the mainstream media. For example, Dr. Chandra Gulati, editor of the ‘Monthly Index of Medical Specialities’, was sued for criminal defamation by Lundbeck, a Danish pharma company, for merely reporting that one of their drugs which was sold in India was banned in other jurisdictions.
Another interesting case would have been the lawsuit against the Narmada Bachao Andolan by a hydel power company. It’s these smaller cases which need to have their story told to a wider audience. We already know about the high profile cases.
From an editorial viewpoint, the authors could have done much a better job on fact-checking the assertions made by some sources. For example, on page 26, the book speaks of the explanation given by the Harper Collins editor for pulping the first edition of Polyester Prince. The editor had apparently claimed that she received legal notices of pre-publication injunctions and that Harper Collins faced the threat of being sued in 22 different High Courts.
While I don’t doubt Harper Collins making such a statement, the authors should have clarified to readers that the Supreme Court had outlawed ‘prior restraints’ on publications as far back as 1994 in the famous Auto-Shankar case and, more importantly, that defamation cases can be filed in any of the 600 odd district courts across India and not just the High Courts. Even prior to the Auto-Shankar case, the Delhi High Court, in 1982, had refused to restrain India Today from publishing an allegedly defamatory article about Charanjit Singh. The judge reasoned that he could't pass such an order since he didn't even know what was going to be in the article since it wasn't yet published. (Link to judgment: https://indiankanoon.org/doc/44777/)
Similarly, on page 57, the authors make an assertion that court fees in India for defamation cases is 10 percent of the damages claimed. That’s not correct; court fees are usually in the neighbourhood of 1 percent in most courts. On page 117 where the book discusses the Bombay High Court judgment in the lawsuit by NSE against MoneyLife, they fail to mention that Justice Patel’s judgment had been appealed and was stayed, pending adjudication.
On page 194, the book speaks of a senior journalist in Mumbai who claimed that the police came for her with handcuffs because she had not replied to the legal notice sent to her publication - criminal defamation, however, is a non-cognisable offence, meaning that the police cannot arrest anybody without the permission of a magistrate and magistrates never issue warrants for not replying to legal notices; they do so only if you fail to reply to a summons issued by a court.
While none of the above errors are fatal to the book, it wouldn’t have hurt for the authors to do a more thorough job on these simple facts.
Last but not the least, the absence of any footnotes or endnotes is quite annoying because there is no way of checking the source of information in this fact-intensive book.
Prashant Reddy Thikkavarapu is a lawyer.