SLAPP: Where does the Buck Stop?

Kashish Makkar


An Anti-SLAPP law serves two critical public utilities; one, it preserves the freedom of public participation, and two, it prevents vexatious litigation.

The post-modern age of information society has descended into an area marked with grave uncertainties. Apart from the menace of Information asymmetry, which has led to the formation of echo chambers, there is another threat lingering over the very foundations of this society, it is popularly referred to as ‘SLAPP’. Quite literally, Strategic Lawsuits Against Public Participation (SLAPP) refers to lawsuits filed by individuals or corporations to censor, intimidate, or silence critics with the cost of a legal defence.

The recent actions of defamation brought by the son of a prominent politician against The Wire, on their reporting of the increased turnover of a certain company by over 16000 times in the year following the current ruling party’s coming to power, is a classic case of SLAPP. The report, published by The Wire, cited the balance sheets and annual reports filed by the company before the Registrar, a fine example of Investigative Journalism.

As many would suspect, a media house with such information would obviously create sensational reports. Instead, acting responsibly, The Wire tried taking into account responses from the company by mailing questionnaires. However, they were met with nothing but threats of prosecution for breach of fundamental right to Privacy or for defamation. Recording the same, and other replies from the businessman’s associates, The Wire published the report, and they were met with defamation actions (both criminal and civil), with the damages in the civil suit to the tune of Rs. 100 crores.

However, anyone would wonder, if The Wire’s report was true and grounded in facts, they don’t have to worry about the lawsuits, right? Not really. It isn’t about the outcome of the lawsuit that is detrimental to public participation, it is really the process that acts as a deterrent. In the defamation actions that have been filed against The Wire, there have been two cases registered in Gujarat against The Wire, one civil and the other criminal. For both of these actions, The Wire’s representatives have to appear before different courts and have to pay the representation fee to lawyers for each of these hearings. A cumulative effect of these compliance costs in a litigation acts as a deterrent to reporting of investigations.

A strategic response to this strategic problem has been taken up in some jurisdictions in the form of Anti-SLAPP laws. These laws are designed to provide for early dismissal of meritless lawsuits filed against people for the exercise of their Fundamental Freedom of Speech.

The law is targeted at lawsuits where the actual resolution of the plaintiff’s claims for defamation etc. is a secondary motivation at best, while burdening the accused-respondents with litigation costs acting as the primary motivation. An Anti-SLAPP statute provides for a quick, effective and inexpensive mechanism to combat such suits. One of the reliefs designed in the scheme of the statute is to enable those who are the subject of a SLAPP suit to seek early dismissal and get their legal fees reimbursed.

The U.S. State of California was the first jurisdiction to take the lead in this respect when they passed an Anti-SLAPP legislation, more than 20 years ago. In the U.S., a model law has also been framed to allow other jurisdictions to co-opt the same, and various other states have followed suit. A federal Speak Free Act has also been proposed in the US to cater to the same.

However, in India, the scenario is clearly the opposite. The Supreme Court, very recently, in Subramanian Swamy v. Union of India, upheld the constitutionality of Criminal Defamation provisions in IPC, by holding:

“We uphold the constitutional validity of Sections 499 and 500 of the Indian Penal Code and Section 199 of the Code of Criminal Procedure.

The court, later, went on to observe that:

“it will be open to the petitioners to challenge the issue of summons before the High Court either under Article 226 of the Constitution of India or Section 482 CrPC. However, it is made clear that, if any of the petitioners have already approached the High Court and also become unsuccessful before this Court, he shall face trial and put forth his defence in accordance with law.”

There are two grave implications of the order passed by the Supreme Court in the above case; One, the Supreme Court’s order renders any consciousness raised by the civil society for making criminal defamation illegal, futile. But two, and more significantly, the Supreme Court has clearly laid down that a response to a litigation that burdens the accused, is more litigation.

Now, clearly, there is also some force in the arguments presented on the other side of the aisle as well. Arguably, any reporting whatsoever cannot be allowed as it seriously jeopardizes the reputations of those being reported. And there needs to be a response stronger than an action for damages against the accused that acts as a real restraint. After all media is not really the victim, right?

Image result for trump and media
President Trump’s war on media.

It has not been even been 6 months since when a majority of the Indian Population sang along to “Baba Bolta hai abhi Bass ho gaya”. Yes, it was the song in Sanju that marked the last step that concretised our belief that media is nothing but a crude machine whose engine thrives on the blood of innocent citizens, who may by sheer chance of fate could be found on its wrong side.

However, this is where an Anti-SLAPP law comes in and makes a clinching argument for its legislation. An anti-SLAPP law doesn’t make defamation (either civil or criminal) illegal, or unconstitutional. Instead, it provides the courts with an additional set of remedies that can be used to provide reliefs to an accused who has been sued for their public participation. It allows the defendant to file an application at the stage of admission, where the courts will be asked to value the suit at a prima facie standard, i.e., if it is or is not based on merits.

It serves two critical public utilities; One, it preserves the freedom of public participation which has an inherent value of its own. And Two, it reduces litigation both at the trial stage, where vexatious suits are dismissed at the admission itself, and at the appellate stage, where the accused would not be forced to seek a S. 482 CrPC remedy to get the proceedings against him quashed.

However, the government cannot really be expected to bring a change to the status quo, when the status quo is best serving the interests of legislators/ political henchmen. Similarly, the Supreme Court isn’t really interested in laying down the law in this regard. Instead, it is the generation of a political consensus that seems to be the only resort for a change in the status quo.

Therefore, the only way out is the creation of a consciousness in the civil society, it is in this regard that World Law Forum is hosting a conference on SLAPP, in New Delhi on October 20th. We hope you will attend the same and decide for yourself, if “Baba Bolta hai abhi Bass Hogaya” holds more for the media, or edicts of powers that be.

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You can find more about the WLF Inaugural SLAPP Conference, here.


Kashish Makkar is the Founding Editor of Law School Policy Review. You can reach the author here.

Image Credits: Preserve the Beartooth Front

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