India: Using Legal Action to Silence Journalists

Journalist Paranjoy Guha Thakurta

On July 5, Paranjoy Guha Thakurta, who was editor of India’s Economic and Political Weekly, along with his colleagues Advait Rao Palepu and Shinzani Jain, received a notice from Thaker and Co., a law firm representing Adani Power Ltd, threatening legal action over a story published the month before.

While legal notices can result in civil or criminal defamation cases, journalists in India say companies are increasingly using them as part of a tactic known as Strategic Lawsuit Against Public Participation, or SLAPP, in an effort to intimidate or censor them.

Thakurta told the Committee to Protect Journalists that the point of the legal notices isn’t to take journalists to court, but to serve as an intimidation tactic and a way to harass reporters through legal fees and time spent responding to notices and appearing in courts sometimes hundreds of miles from where their newspapers are based.

This isn’t the first time that lawyers acting on behalf of large corporations have threatened legal action against Thakurta. In Sue The Messenger, a book jointly authored by him and fellow journalist Subir Ghosh, Thakurta details how companies have tried to use SLAPPs against him and other journalists over reports alleging connections between the government and large corporations.

As well as the notice over Adani Power Ltd, Thakurta said he has received letters threatening legal action from lawyers representing Mukesh Ambani, the chairman of Reliance Industries; Anil Ambani, chairman of the ADAG group and Subrata Roy, founder of the Sahara India group.

The notice sent to Thakurta and his colleagues at Economic and Political Weekly was filed over a June 17 story that criticized the government for changing rules over economic zones and which alleged that Adani Power benefited financially from the changes. Thakurta told CPJ the article did not allege any wrong doing on the part of Adani Power, and that the magazine tried to seek comment from the company in advance of publishing.

CPJ EDITOR’S NOTE: Thakurta said that the magazine removed the article after receiving the legal notice. Thakurta told CPJ on July 18 that he resigned from Economic and Political Weekly because of differences of opinion with the Sameeksha Trust, which runs the magazine.

The following Q&A has been edited for clarity and length.

How effective are SLAPPs as a form of censorship?

By their very nature they’re aimed at sending a chilling effect. Others feel intimidated and scared of following in the footsteps of those who are recipients. Now, the effect is that since defamation can be a criminal offense, people believe that this is bound to happen. That a person will be put behind bars.

In Sue The Messenger, you said that sending legal notices to journalists is a familiar tactic that some corporations employ. Why don’t corporations follow up with filing a legal case?

Companies in India and across the world often don’t stop at sending legal notices but also [start legal proceedings] against those who disagree with them and allege that their actions are defamatory. Companies and organizations sue writers and critics, not with the intention of winning a lawsuit in a court of law but with the intention to intimidate and harass. Fighting a case in court or even replying to a legal notice often means that you have to spend time and money. [Legal cases can be filed in courts] in different parts of the country, therefore the individuals against whom cases have been filed, have to travel long distances and spend money to appear.

In India in particular, the long arm of the law is really long and the wheels of justice grind very slowly. Therefore litigation can often be drawn out, especially if litigants or those who support them have deep pockets. They can engage the services of eminent lawyers who charge fancy fees, which result in the litigant having an advantage over the person against whom the case has been filed. This often results in a chilling effect that dissuades others from saying, publishing or speaking anything that might go against the interests of a person or company who has already filed a SLAPP suit against someone else. [Journalists and publishers] don’t want to go through this period where they have to reply to legal notices, find lawyers to work for them at low prices and travel distances to appear in court.

What effect have SLAPPs had on journalists in India?

[For] organizations or media groups that depend on advertisers and sponsors for the bulk of their earning, there is a natural reluctance to bite the hand that feeds them. If Company A is a big advertiser in a particular newspaper or TV channel, it is most unlikely that a journalist receiving information, which could be critical of the promoters of that company, will see light of day. And what I say of large private advertisers is also true of governments.

There are newspapers, websites and TV channels who may claim that they are independent but what they put out and often what they do not put out, reveals a certain bias, a certain political leaning. So what is true of large corporates is also true of media organizations that have direct or indirect, covert or overt, affiliation with political parties or individuals owing allegiance to political parties. Across the world, if large conglomerates control media organizations, there would be this kind of subtle self-censorship that prevails. In India, there is adequate evidence to indicate that the role and influence of big corporate entities has become stronger.

In your view, is there a legal or political remedy to deter corporations from sending these notices?

This isn’t an easy question to answer and there have to be multiple ways forward. One way could be to challenge the judgment of the Supreme Court and make a plea for decriminalization of defamation. [Editor’s note: Under Indian law, criminal defamation carries a maximum penalty of two years imprisonment.] I don’t know when and if that will happen. Be that as it may, it’s important to be transparent and I speak here in my personal capacity.

One of the reasons why I haven’t been taken to court is because I’ve tried my level best to be factually correct. I think in India and across the world, truth is the best defense. If, in whatever is put out in the public domain in any medium, your facts are correct and you’ve done the due diligence and gatekeeping to ensure factual accuracy, if you’re fair, balanced and objective, I think that would dissuade large corporations from legally proceeding against their critics. This could be one way to ensure that you’re not placed behind bars.

This post first appeared on the Committee to Protect Journalists‘ website and is reproduced here with permission.

Aayush Soni is an independent journalist in New Delhi who has written for The Guardian, The Caravan, The Indian Express, India Ink-The New York Times, India Real Time-The Wall Street Journal, Scroll, The Wire and OZY. Soni is an alumnus of Columbia University’s Graduate School of Journalism.