Books

Review: The Chilling Effect of Corporate Lawsuits on Independent Journalism

Sue the Messenger by Subir Ghosh and Paranjoy Guha Thakurta is not only a chronicle of legal harassment by corporates of investigative journalists, but also of the resistance against it.

Subir Ghosh (L) and Paranjoy Guha Thakurta. Credit: Twitter and paranjoy.in.

Subir Ghosh (L) and Paranjoy Guha Thakurta. Credit: Twitter and paranjoy.in.

Sue the Messenger (2016) written by Subir Ghosh and Paranjoy Guha Thakurta is an effort to bring to light a legal sword that corporate bullies are regularly dangling to silence independent journalists. The 243-page book is a collection of some of the finest investigations by journalists who were threatened by expensive lawsuits for treading paths that have led to telling revelations.

From the almost erased Mystery of Birla House (1950) – the authors contend that this book could be the very first instance of investigative journalism in India – to the more recent instance of IIPM vs. Careers 360, Sue the Messenger has covered stories that were almost smothered by industrialists with abysmal pockets. Ghosh and Guha Thakurta are no strangers to what is now known as ‘Strategic Lawsuits against Public Participation’ (SLAPP). Their book Gas Wars: Crony Capitalism and the Ambanis (2014) successfully fought legal notices from the industrial giants threatening defamation worth 100 crore rupees. Similar instances of muscle flexing to strangle reports on corrupt business practices are at the heart of Sue the Messenger.

Watch: Legal Harassment and the Corporate Muzzling of Independent Journalism in India
Subir Ghosh and Karuna Nundy in conversation with The Wire

Ghosh and Guha Thakurta highlight a pattern with regard to SLAPPs, which are used by industrial leviathans to target authors, but rarely the organisations where they have published the “defamatory” report. This serves a dual purpose – (a) it divides the opposition and (b) it delivers what the authors call the ‘chilling effect’. It is a warning to the general public about what big corporates can do in terms of effecting financial bankruptcy and legal harassment if anyone dares to challenge their questionable market practices.

Quashing independent journalism

Subir Ghosh with Paranjoy Guha ThakurtaSue the Messenger: How Legal Harassment by Corporates Is Shackling Reportage and Undermining Democracy in IndiaAuthorsUpfront, 2016

Subir Ghosh with Paranjoy Guha Thakurta
Sue the Messenger: How Legal Harassment by Corporates Is Shackling Reportage and Undermining Democracy in India
AuthorsUpfront, 2016

What is more worrying is that legal notices are now sent even before publication. A defamation suit can be filed and financial damages may be sought only when the “defamatory” matter is published and circulated.

But thanks to the financial terrorism orchestrated by big firms, preemptive notices are delivering the chilling effect and freezing many an idea and expression that intends public good.

For instance, Hamish McDonald and his publisher Allen & Unwin were served legal notices warning action for exemplary damage in case The Polyester Prince: The Rise of Dhirubhai Ambani (1998) was published.

Ghosh and Guha Thakurta also chronicle a similar lead-up but a unique outcome behind the publication of Sahara: The Untold Story (2014) written by Tamal Bandopadhyay.

Sue the Messenger is not only an account of legal threats but also a testimony of the fight against them.

Almost all cases cited in the book have ended with vindication for the authors despite threats and harassment.

The higher judiciary in particular has often been scathing of SLAPPs provided that the reports published are factually correct.

For instance, dismissing the lawsuit filed by the National Stock Exchange against Sucheta Dalal, Justice G.S. Patel of the Bombay High Court observed:

“I do not believe that a defamation action should be allowed to be used to negate or stifle genuine criticism … nor should it be allowed to choke a fair warning to the public … Every criticism is not defamation. Every person criticised is not defamed” (113-4).

Again, while hearing the IIPM vs. Careers 360 case, the Uttarakhand High Court observed:

“The common expression in a court room is ‘Satyameva Jayate’ – truth shall triumph. Truth is also the best defence in a case of defamation. A truth spoken for public good can never be called defamatory” (184).

The role of publishers

gas warsBook reviews rarely include a word about the publisher. But it is unavoidable in the case of AuthorsUpFront|Paranjoy – the publisher of Sue the Messenger. AuthorsUpFront (AUF) is a self-publication platform which provides authors with human and technical resources necessary to convert a manuscript into a book. It supported the publication of Gas Wars at a time when the manuscript was turned down by most publishing houses owing to the “risks” involved. The chilling effect has indeed led to publishers developing cold feet. A case in point is that of Keya Acharya, who wrote a critical report against Karuturi Global in 2014. The rose exporters sent a legal notice asking Acharya and her publisher, Inter-Press Service (IPS), to pay Rs. 100 crore for “damage” caused to its reputation. IPS “yanked off the story from its website and left Acharya to fend for herself” (91).  

Although it is a work of painstaking detail, which is not unexpected from the team that has produced Gas Wars, the book has one major limitation. It neither has a reference section which details the sources i.e. page number, edition, URL and date of publication, nor are these vital pieces of information available within the text.

Also, there is one exception to the otherwise lucid style of the book. Sample the following maze coupled with what seems like an error of identity:

“He spoke to Dhirubhai’s contemporaries, and wrote in elaborate detail about how this youngster in November 1947 had resolutely stood up to a police officer who had mistakenly apprehended activists of the Junagadh Vidyarthi Samiti who had gone to an area to protect shops belonging to Muslims from being looted by marauding Hindi (sic) rioters in a post-independence surcharged atmosphere” (16).

Minus these oversights, the modestly priced Sue the Messenger is a textbook of SLAPPs and the fight against them by independent journalists in India.

Acknowledgment: Shikha Pushpan assisted in drafting this piece.