Last Thursday I wrote about the case of Tata Industries suing Greenpeace for defamation. As I said toward the end of that article, it will be interesting to see how this case, brought by the Tatas, plays out because it is being adjudicated in a developing country. In this respect, this case differs from previous cases of its type, the 1990s Mc Libel trial in Britain, in particular. Since writing that post, I’ve had further thoughts about how this suit may differ from others of its genre. Foremost among these thoughts is that the key difference between this suit and other corporation vs. activist suits is that with this suit the claims of the defendant (Greenpeace) are limited and specific whereas in other cases the defendants’ claims were more general and widely arrayed. And that difference may spell defeat for Greenpeace. Let me explain.
As you know from reading my previous article, “Tatas Push Back,” the Tatas have filed a suit against Greenpeace in Delhi High Court. Per DNA India, the suit was filed in response to an online video game promoted by Greenpeace. The online video game is called “Turtle vs. Tata” and was designed as part of the NGO’s protest against Tata’s participation in the construction of a deep water port in India; a port which is reported to be located about 15 kilometers from the nesting area of an endangered sea turtle species. Thus comes the involvement from Greenpeace. The suit claims that the video game infringes on the company’s trademark. The suit also claims that the game maligns the reputation of the company through its alleged representation of the Tata company chairman as a villain. And the suit states that, regarding the sea turtle and the construction in the vicinity of the turtles’ nesting area, the company has obtained the proper construction clearances from the government. This case is very focused, unlike the Mc Libel trial which many corporations may be keeping in mind as they contemplate suits against activists.
In the 1990s Mc Libel trial, two activists were sued by Mc Donald’s for defamation and libel. The company brought the case because the two activists had been distributing pamphlets criticizing Mc Donald’s on a wide number of issues such as:
- the wasting of grain and water,
- complicity in Third World starvation,
- rainforest destruction,
- the exploitation of children,
- the torture and murder of animals,
and other subjects.
The outcome of the Mc Libel case was that Mc Donald’s prevailed and damages (although relatively small and reduced upon appeal) were awarded. But to win this small legal victory the company had to give up much more. The word “pyrrhic” was applied to this victory more than once. Through the legal process, the defendants were allowed to introduce evidence relating to many of their claims which, as you can see from the partial list above, were quite varied. The activist accusations were a smorgasbord of standard activist rhetoric. Yet to mount their truth defense against the libel charge, the defendants were entitled to state their case on these matters and introduce a wide range of evidence related to their claims.
Now, regardless of the validity of the defendants’ claims, to defend themselves and attempt to prove that there was no libel committed, the defendants were able to debate, in open court, Mc Donald’s performance in all of these areas. The defendants were free to introduce their evidence on all of these issues with the press ready and waiting to report the entire debate, and the attendant controversy that inevitably and always follows, to a waiting public. The potential for further damage to the Mc Donald’s corporate image, past that created by the original pamphlet distribution, is obvious. Even if the company performed flawlessly in each of these areas, (and what company can?) the company would have to answer the defendants’ claims of truth. In the company’s mind, the public would be learning more than, perhaps, the company would like the public to know and the potential for compounded publicity problems, and image damage, would mount exponentially. Such are the dangers to the plaintiff for taking a libel case to court and such probably are at least some of the reasons why many corporations infrequently sue activists for libel. Sometimes the cure can be worse than the disease.
But this concern may not be so in the Tata case.
The dangers of pursuing a case of libel against an activist organization may be significantly reduced in the Tata case. For Greenpeace, in this case there is less, much less, opportunity for them to compound publicity problems.
In the Tata case, the activist, Greenpeace, has not made wide-ranging claims alleging malfeasance against Tata. Greenpeace is protesting, very specifically, the company’s participation in only one issue, the alleged endangerment of a sea turtle nesting area. In this case, the action eliciting the defamation suit is very specific and, unlike Mc Libel, confined to one issue. Although I am not familiar with Indian court procedures, I would reasonably expect that Greenpeace, to defend itself against the defamation charge, would not be allowed to bring into question issues other than that of the endangerment of the sea turtle nesting area. And if it is true that Tata, as the plaintiff in the case, has all of the required government clearances to build the deep water port, then it would seem that Greenpeace’s video game protest against Tata holds no merit. Their case would hold no merit because it would be the government, rather than Tata, that would be Greenpeace’s “villain.”
If the Greenpeace defense claim of truth, that Tata is a “villain” in this matter, is found to be invalid, well then, you know what that means. First of all, it would mean that Greenpeace would probably lose the case. Secondly, and with broader implications for the battles between activists and corporations, a Greenpeace loss in this case might show corporations that there is a strategic precedent through which to sue activists for defamation other than that established by the pyrrhic victory of Mc Libel.
Again, we shall see how this plays out.
