This month Keya Acharya is responding to a nine-page legal notice demanding she pay 1 billion rupees ($16.3 million) over her article on India's rose industry. Her legal troubles are a window on to a pattern of how big businesses are using India's outdated defamation laws to silence criticism of their operations.
Acharya, an environmental journalist, was served the legal notice on August 5 by Sai Ramakrishna Karuturi, founder and managing director of Karuturi Global Limited, a Bangalore-based publicly held cereals, vegetables, and flower exporter. The company accused Acharya of defamation and demanded "compensation" after she published an article for the Inter Press Service (IPS), which explored the company's operations in east Africa and its alleged impact on the Indian rose production industry. After the notice was served, IPS posted a disclaimer in place of the web article that read: "We are suspending the contents of this article so as to ensure their veracity and that of the sources on which it draws and, therefore, request our subscribers not to republish or use it in any way."
Legal actions such as this notice fall under what are known as strategic lawsuits against public participation--or SLAPPs, Acharya said. She described SLAPPs as a tactic intended to censor, intimidate, and silence critical voices by burdening them with the cost of a legal defense until they abandon their criticism.
Legal actions are increasingly being used by large corporations to threaten the media into silence in India, Acharya told CPJ. "My particular case is not just to intimidate me, but to silence all further reports on [Karuturi] and his company's operations in Africa," she said.
According to Gautam Bhatia, a lawyer at the High Court of Delhi who specializes in free speech issues, India's defamation laws need to be addressed to prevent them being misused as a tool for intimidation.
India retains both civil and criminal defamation on the books and either can be used against writers once a legal notice has been issued. Bhatia explained that civil defamation in India broadly follows the strict liability approach, meaning that if a defendant makes a defamatory statement, and it is proven that the statement is incorrect, the defendant would be held liable and could be forced to pay heavy damages, even if they took due care to verify its accuracy. Criminal defamation is outlined under section 499 of the Indian penal code, and can be punished with imprisonment, he explained.
He agreed that the laws have a detrimental impact on reporting, adding: "Proving the chilling effect is like trying to prove a negative, but the comparatively small amount of critique that the Indian public sphere has of big corporations is no doubt in part due to the threat of defamation."
"Data [on the use of defamation laws] is hard to come by, especially because the primary use of defamation is as an intimidatory tactic: a notice claiming heavy damages is sent to the journalist, to scare him into a retraction or, at least, to cease writing in the future," said Bhatia.
As well as Acharya, other journalists have also been threatened with legal proceedings in the past year. In April, Mukesh Ambani of Reliance Industries Limited (RIL), and Anil Ambani of Reliance Anil Dhirubhai Ambani Group served defamation notices through their respective corporations to the authors of Gas Wars--Crony Capitalism and the Ambanis, a book released on April 15, which explored suspected irregularities in the pricing of natural gas in India.
The Ambani brothers are among India's most wealthy and powerful businessmen. Mukesh, who has been named India's richest person by Forbes for eight years in a row, and his younger brother Anil, are involved in energy and telecoms businesses. Earlier this year RIL also acquired Network18, which owns television channels CNBC-TV18 and CNN-IBN, and publishes Forbes India, according to reports.
The notice demanded that the authors--Paranjoy Guha Thakurta, Subir Ghosh, and Jyotirmoy Chaudhuri, who are all journalists--offer an unconditional public apology along with the removal of the website promoting the book, and an immediate halt to its sale, publication, distribution, and circulation. The notice threatened "civil and/or criminal proceedings" if the demands were not met, The Times of India reported. The authors issued legal replies to the notices a few months ago, but there has been no development since then, Ghosh, an independent journalist, told CPJ. The legal threat failed to deter the authors, who published and distributed the book themselves.
"These are intended to psych out people. We knew from the very beginning that neither of the Ambani brothers would take it lying down," Ghosh said. "But I know of others who have buckled under pressure of similar SLAPPs. Books have been pulled off [the shelves], or have had court orders nip them in the bud."
Reacting to the notice, lead author Thakurta said he and his co-authors had been "more than fair to RIL," according to news reports. In a statement to journalists, he said he viewed the legal notice as "an attempt to intimidate and harass," and described it as "an attempt to scuttle and suppress my fundamental right under Article 19 (1) (a) of the Constitution of India, which guarantees Freedom of Speech and Expression."
In another case, the finance and real estate conglomerate Sahara India Pariwar, headed by Subrata Roy, one of India's richest men, filed a 2 billion rupee ($33 million) defamation suit in December against Tamal Bandyopadhyay, the then deputy managing editor of Mint, India's second largest independent business daily, and his publisher Jaico Publishing House, for Sahara: The Untold Story. The book details the story of the Sahara India Pariwar conglomerate and its ongoing legal battles with the Securities and Exchange Board of India (SEBI).
Later that month, the Kolkata High Court ordered a stay on the book prior to its release, according to reports. While the parties eventually reached an out-of-court settlement in April, as part of the deal the book carries a disclaimer by the Sahara group stating the book includes defamatory content and Sahara is not happy with it, according to Bandyopadhyay and news reports. The stay on publishing was lifted and the defamation case withdrawn, he told CPJ.
"The fight was tough. Being an individual it was not easy to fight a business conglomerate like Sahara. It took toll on my health--I lost weight and got grey hair. There was a lot of stress and I could fight because my family and [Mint] stood by me. Besides, the law firm worked pro-bono. And, above all, the media supported me to the hilt," Bandyopadhyay said. But he warned: "There is [no] denying the fact that such defamation suits will act as a deterrent to fair and honest reporting."
Mint has come under legal pressure from these business groups before. Reliance Power Ltd, a part of the Reliance Group, has sued HT Media Ltd, publisher of Mint, in the Bombay high court over a 12 May 2010 front-page story in Mint that it disputed. HT Media is contesting the case. Sahara has filed a defamation case in a Patna court against Mint's editor and some reporters over the newspaper's coverage of the company's dispute with SEBI. Mint is contesting the case, which is ongoing.
Bhatia argues that the Indian parliament must work to repeal the criminal defamation law. And India must follow the path of constitutional democracies such as the U.S., South Africa, and Germany in modifying the civil defamation standard to one that is more compatible with free speech. He also suggested that the size of damages be capped and that the burden of proof should shift to the plaintiff.
Until journalists are able to freely investigate large corporations and business transactions without their work being criminalized or subject to the threat of exorbitant damages, India is failing to uphold a basic proponent of its constitution.
UPDATE: The quotation in the fourth paragraph has been modified to reflect Acharya's entire comment.