Mr. Anil Ambani acting through Mulla & Mulla and Craige Blunt & Caroe served a notice for defamation to Mr. Prashant Bhushan’s junior Pranav Sachdeva for a blog post that the latter had uploaded. The post carried a complaint written by Mr. Bhushan to the Special Investigative Team on Black Money about the alleged money laundering activities of Anil Ambani and a show cause notice issued to M/s AAA & Sons, by the Directorate of Enforcement (read these here, courtesy LegallyIndia). The defamation notice also addresses Google, and asks that they take down the post, ensure that the same is not repeated again, and also calls upon them to provide the address of the blogger who had written the post, failing which they have threatened to pursue both civil and criminal action. Now, while I realise that this is simply at the stage of a notice, there are some issues that arise here that I would like to point out.
The exemption provided to intermediaries:
At this stage, it is perfectly valid for the Ambani lawyers to bring to Google’s attention, pages that they think are defamatory (think of it as similar to a reporting service for content that is considered offensive, as they haven’t initiated any legal proceedings yet). In fact, the Information Technology (Intermediaries Guidelines) Rules, 2011 in Rule (3) sub-rule (4) requires that once Google as an intermediary is made aware of defamatory content posted on its websites, that they take it down within 36 hours. Assuming that Google does not comply, S.79 of the Information Technology Act of 2000 takes away their exemption as an intermediary. The provision (as amended in 2008) grants the exemption only to those intermediaries that follow the Intermediaries Guidelines (see S. 79 (2)(c)). While it is my impression that Google is generally compliant with these requests, it doesn’t seem to have taken down the post till the time of publication of this post.
While this is the law, its implications are quite grave. The Intermediaries Guidelines in Rule (3) sub-rule (2) defines what content is to be regulated by the intermediary which also includes defamatory content. Therefore, in requiring an intermediary to take down content that is reported to be defamatory, they are performing the crucial role of deciding what exactly is defamatory – a job typically reserved for the courts. This is due to the fact that sub-rule (4) of rule (3) states that “….shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule(2)”. This seems to suggest that the intermediaries have an active role in determining where sub-rule (2) is applicable. In a judicial proceeding the court generally has to be satisfied that there is some form of prima facie case before a takedown notice is issued (see here a case in which Google was ordered to take down certain content for being prima facie defamatory). This judicial proceeding also involves (more often than not) a representation from both parties which help it as an adjudicatory body to decide on the nature of the content. No such safeguards are provided for under the Guidelines. This raises concerns of private policing and censorship, both constituting undue restrictions on Art. 19(1)(a).
The blog post itself, without going into the merits of the allegations made in the letter that Mr. Bhushan has written, merely reproduces a letter and a show cause notice issued to a company without drawing any inferences at all. In fact the commentary is limited to the extent of providing details as to what exactly were the documents that were being attached. The majority of the post were excerpts of writings to public officials and other public communication. This is akin to saying that publication of a police complaint by a news source would be defamation (the Bombay High Court has ruled that this would not be so in Shri Laxman Jairam Malvankar v Smt. Reshma Ramesh Narvekar, 2012). In any case, the author of the post himself is not making any inferences or suggesting that Mr. Ambani was involved in such activities. He was merely bringing attention to the fact that a complaint has been filed. In my opinion, there is no cause of action for a defamation claim here.
Moreover, the underlying subject of the post was that of black money, a problem that is very clearly vexing the present government and consequently is of sufficient public importance to be debated. Actions which could unnecessarily stifle debate about this should be viewed with utmost caution.
Lawsuits that are filed with the intention of silencing critics, often by deep pocketed corporations and individuals are referred to as Strategic Lawsuits against Public Participation or SLAPP suits. The Delhi High Court in the case of Crop Care Federation of India v. Rajasthan Patrika clarified that a SLAPP suit grossly threatened the fundamental right to free speech. The court identifies that the primary motive in a SLAPP suit is to silence the airing of the views by threat of the consequences., legal costs involved and/or simply the exhaustion of a trial. It goes on to state that the motives are often not to win the suit itself. American jurisprudence identifies two requirements for what constitutes a SLAPP suit – where the matter being discussed is a matter of public importance and ought to debated and where the plaintiff does not disclose a prima facie case of defamation. Generally there is also a marked gap in the economic positions and therefore the relative bargaining power between the two parties. Assuming for the moment that there is a suit filed in the present instance, and noting my opinion on the weak cause of action, I am extremely tempted to label it as a SLAPP.
SLAPP suits are unfortunately on the rise across the world and as such, individuals such as bloggers tend to be easy targets, although there is often action against other classes of individuals too. The importance of blogging as a source of information cannot be understated and is probably best illustrated by the fact that no mainstream media source seems to have picked up on this complaint made by Mr. Bhushan (till the time of publication of this post). And of course, our blog too has seen its share of SLAPP actions.
The notice also has another worrisome element, the request for disclosure of the address of the blogger. The Guidelines requires the intermediary to disclose such information to Government authorities and not to private parties (see Rule 3 sub rule (7)) as is demanded by the notice. A disclosure of this address would amount to disclosure of information over which the blogger had a legitimate expectation of privacy and would therefore breach his privacy rights.
For readers who are interested in knowing more about SLAPP actions, or are worried about receiving one of their own, it’s worth noting that iProBono has a remarkable initiative wherein a collective of lawyers is working to tackle the menace that is these SLAPP suits.
Many thanks to Swaraj for his edits on this!