Indian publisher threatens blogger with 1 billion $ defamation suit: The Streisand effect?


Disturbing trend we have here with defamation law suits being used to quell free speech and public participation!


Last year Shamnad was sued by NATCO for alleged defamation (see his response here) and more recently one of our student bloggers Aparajita received a notice from Times Publishing House threatening legal action for alleged defamation. Prashant’s incisive blog post on this can be accessed here.The story as well as Shamnad’s delightfully sarcastic response to the legal notice served by Times publishing house has been lapped up by the mainstream media including Hindu (here) and Sans serif (here) amongst others. The hoot represents a civil society initiative on free speech issues and tracks cases concerning media freedom. The hoot has an excellent take on such SLAPP (strategic lawsuits against public participation) suits which are increasingly being used as an intimidation tactic to censor critics.Globally the chillingeffects site presents analysis of such legal threats to enable recipients resist the chilling of legitimate activities.A campaign to preserve free speech and decriminalize defamation must be launched, and we do hope that you will join us in this fight.

So here we go again, recently a blogger by the name Jeffrey Beall was threatened by an Indian publisher with a 1 billion dollar lawsuit approx. 5400 crore Rs.(seriously, how do they come up with such fancy numbers?). This story has been making news for quite some time and we thought it was appropriate to blog about it in light of the recent events that have plagued our very own bloggers.
Dr.Evil Image from here
Background:
Open access gained popularity somewhere around 2003 with the introduction of reputed peer-reviewed journals like PLoS (public library of science).The popularity of author pays for open access model has been exploited by some publishers. Researchers are worried about the rise in number of journals with questionable peer review system who are willing to publish just about anything for a price. The problem with this trend is that non-experts doing online research, unacquainted with the workings of the journal sphere will face difficulties distinguishing the wheat from the chaff.
Beall’s list and OMICS group
Jeffrey Beall, a metadata librarian at the University of Colorado Denver, runs a blog by the name scholarly open access where he writes about issues pertaining to the open-access journal industry.Beall’s blog is pretty popular has been featured in Nature and New York Times. Beall maintains a list (Beall’s list) of what he calls “Potential, possible, or probable predatory scholarly open-access journals and publishers”. Beall’s list can be accessed here and here
Beall identifies and compiles a list of journals who according to him cash in on researchers desperate need to get their published.OMICS publishing group(an India based publisher) has earned the dubious distinction of being featured in Beall’s list amongst other such publishers based on the criteria detailed here.Beall has discussed in detail the OMICS group practices in several of his blog posts.
In fact one commentator on a science-insider story on this issue questioned the credibility of a paper entitled “Dinosaurs: Extinct or Traumatized?” published by OMICS Group in their Journal of Trauma & Treatment. OMICS has removed this paper from its website since, but the commentator has generously made available details of this paper in this blog post here.
Get a load of this( some interesting para’s)
He is Who that created the heavens and the earth and what is between them in six days, and He is established on the Throne of Power [1].Jesus confirmed that mankind has existed “from the beginning of the creation”, so all kinds of living things were brought into existence in the same initial creation days which are six as Moses confirms as well [12]; and thus, this hypothesis that “the earth was peopled by oviparous quadrupeds of a most appealing magnitude, and reptiles were ‘Lords of the Creation’ before the existence of human race” [13] seems to be of a kind neither logical nor verifiable.
Obviously statements like these have us wondering whether the journal has a peer-review system at all.
Intimidation:
Beall’s blog posts and their popularity have clearly ruffled OMICS group owner Srinu Babu Gedela’s feathers. An Indian IP mgmt. firm, IP Markets informed Beall in a 6 page letter can be accessed here, that they would be suing for damages amounting to USD 1 billion.
Some Excerpts from the letter (sic):

“All the allegation that you have mentioned in your blog are nothing more than fantastic figment of imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client. Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone and tenure adopted by you as well as the criminal acts of putting the same on internet. The copy of this notice is also being addressed to various other entities that have relied on your baseless utterance to publish their own material. Please be enlightened that your act of posting such content on the internet has exposed you for criminal proceedings which also attract a three year imprisonment. Our client has been advised to initiate the said proceedings in USA and in INDIA against you. Such sought of irresponsible publishing will not be tolerated. Your article also smacks of racial discrimination against an Indian Publishing company and on this ground the issue will be viewed seriously and an appropriate action would be initiated”
The Chronicle of Higher Education has quoted Mr. Beall as saying “I found the letter to be poorly written and personally threatening, I think the letter is an attempt to detract from the enormity of OMICS’s editorial practices.” 
Legal questions:
Popehat has an excellent analysis of this issue, which states that a civil judgement against Mr. Beall would be unenforceable in the States, because the SPEECH act prohibits any federal/state court from recognizing/enforcing foreign judgement for defamation unless some conditions are satisfied. Also, pressing criminal charges against Mr. Beall would require extradition to India and the treaty between the US and India requires dual criminality (offense should be a crime in both countries) .OMICS may have a case in the United States provided they satisfy their burden under U.S. law — for instance, by showing that Mr. Beall made provably false statements of fact (seems unlikely).
What these censors tend to ignore is the Streisand effect. Censoring critics and suppressing information more often than not, tends to have quite the opposite effect. News which would have otherwise languished in obscurity generates additional attention and goes viral (so much for trying to suppress).

Madhulika Vishwanathan

Madhulika is a registered Indian patent agent and has completed her Master’s in Pharmacology from the Institute of Chemical Technology (ICT), Mumbai. Her interests include issues involving pharmaceutical and biotechnology patent law, regulatory aspects like Hatch Waxman litigation and antitrust law.She is currently working at law firm based out of Memphis, TN.

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