Monday, January 26, 2009

SLAPPing Down Public Protest

Herald, 23 Jan 2008

The time for intimidatory litigation and farcical PR is past – now the mining industry must clean up its act, says VIDYADHAR GADGIL

The defamation case filed by the Fomentos against Sebastian Rodrigues in the Calcutta High Court, claiming damages of Rs 500 crores, has opened up a new front in the ongoing battle against mining in Goa. This case is clearly an instance of SLAPP (Strategic Litigation Against Public Participation), a strategy frequently used by industry to silence critics by burdening them with the cost of a legal defence. As the Wikipedia entry on the subject says, it “is a lawsuit or a threat of lawsuit that is intended to intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. Winning the lawsuit is not necessarily the intent of the person filing the SLAPP. The plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.”

While the acronym was coined in the 1980s, SLAPPs have long been a strategy used by corporate capital to stifle public debate and criticism. While it broadly covers any legal strategy used to silence criticism of a corporate initiative, it is typically used in environmental cases when protests and critiques interfere with a corporate body’s business interests. SLAPPs interfere with the freedom of speech of individuals and groups, and as such are an attack on this fundamental right. Internationally, courts have not treated SLAPP cases kindly. In Canada and the US, as SLAPP became a favoured strategy of corporates, laws were enacted to protect defendants in SLAPP cases.

In Canada, the Protection of Public Participation Act was brought in. In the US, a number of states have brought in legislation to prevent misuse of litigation in anti-SLAPP suits, especially where the complaint is related to activities that fall within the right of free speech. Similar situations exist in Australia and other countries, with courts and legislatures having intervened to protect defendants in SLAPP cases. Probably the most renowned of SLAPP cases has been the McLibel case, wherein the European Court of Human Rights found that Helen Steel and David Morris did not receive a fair trial while defending a libel action brought by McDonald’s in the UK. Found guilty in 1994 of libelling the company in a leaflet, the court ruled that, because legal aid is not available to libel defendants, their right to freedom of expression had been violated. This landmark judgement recognises the basic imbalance in a situation where corporates with deep pockets can engage in endless and expensive litigation, while defendants, usually ordinary activists or whistle blowers, are hampered due to lack of resources.

In India, unfortunately, the authorities are yet to take appropriate action to prevent misuse of SLAPP cases. While, in the past, criminal complaints (usually fabricated) were a common strategy, the latest trend in India, as noted lawyer Rajeev Dhavan has pointed out, is to use the law of defamation to silence criticism. As Dhavan says, “The Indian law of defamation with its criminalising posture and gagging writs offends responsible democratic governance founded on free speech.” The willingness of courts to admit such cases and the interminable legal delays involved only helps the cause of suppressing free speech.

Sunita Narain says that even in India “companies who file SLAPP casesrarely win in court, but achieve their real objective to discourage others from speaking out.” The worst case is probably the one filed by United Phosphorous against Umendra Dutt of the Kheti Virasat Mission for discussing in public something as well established as the ill-effects of pesticide exposure. Going further, United Phosphorous also filed a case against the publishers of the Times of India for publishing a report quoting Dutt. Interestingly, the report does not even mention the company but only makes general comments about pesticide exposure. This case shows that, not content with going after environmental activists,corporate India seems keen to silence the media and prevent it from carrying any information that may hurt its interests.

The defamation case against Sebastian Rodrigues is not the first SLAPP case in Goa. Earlier, Meta Strips had filed cases against activists protesting the setting-up of the the Meta Strips plant at Sancoale – not in Goa, but in courts across the country, from Haryana to Bangalore. While the cases were eventually dismissed, activists were forced to hire lawyers, and spend time and money travelling across the country to attend court hearings. The objective of the defamation case against Sebastian Rodrigues is clearly to harass, intimidate and silence him and other activists involved in the growing agitation against the excesses of the mining industry in Goa. Fomentos has claimed that it is being defamed by Sebastian Rodrigues through his writings on the blog The case has been filed on behalf of Fomentos by their Vice-President (Communications), Sujay Gupta, the very man who had orchestrated attempts to get Sebastian Rodrigues branded a ‘Naxalite’ (what price ‘defamation’?), a misconceived attempt that evoked a storm of protest from civil society, and left politicians like Manohar Parrikar who had played along with the ploy squirming in embarrassment.

What does the blog contain? A perusal shows nothing that has not been said many times over before. Apart from documentation of ongoing people’s struggles against mining, including against some mines operated by the Fomentos, the blog documents the devastation wrought by mining in Goa. This is nothing new – citizens’ groups in Goa, notably the Goa Foundation, have been for many years documenting the environmental destruction wrought by the mining industry in Goa. Its recent book Sweet Land of Mine, is an expose of the mining industry, about which Manohar Shetty has written, “… this eloquent, saddening book, exposes the wounds on the Western Ghats and even in government designated wildlife sanctuaries inflicted by callous open cast mining, the consequent depletion of the water table, the irreversible contamination of water bodies, the pollution of fields, all affecting thousands of villagers in interior Goa…”

So why target Sebastian Rodrigues now? It is probably a sign of desperation as protest against mining in Goa builds up into a crescendo. Also, Rodrigues is likely seen as a soft target. But this misconceived attempt, like the ‘Naxalite’ bogey before it, appears set to boomerang on the company. The obvious malice involved in filing a case in Calcutta and the ridiculous nature of the demand (Rs 500 crore, when even United Phosphorous only filed for Rs 5 crore) have united Goan society behind Rodrigues. In public meetings and the press, activists and ordinary citizens have risen up in his defence. There is already an online petition at, which has been getting widespread support, as has the appeal launched to raise money for Rodrigues’ defence.

With even pro-mining-lobby politicians like CM Digambar Kamat having counselled the mining industry to seek a balance between trade and ecology and asked it to pay heed to the voice of the people, the writing is clearly on the wall for the miners. The time for ad hominem defamatory attacks, frivolous and malicious litigation, and farcical PR (describing strip mining as ‘mineral farming’) is past. The only option for the mining industry is to clean up its act, and the earlier the better.

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