For years now, deep-pocketed individuals and corporations have been turning to civil lawsuits to silence their opponents. These Strategic Lawsuits Against Public Participation, or SLAPPs, aren’t designed to win on the merits, but rather to harass journalists, activists, and consumers into silence by suing them over their protected speech. While 34 states have laws to protect against these abuses, there is still no protection at a federal level. 

Today, Reps. Jamie Raskin (D-MD) and Kevin Kiley (R-CA) introduced the bipartisan Free Speech Protection Act. This bill is the best chance we’ve seen in many years to secure strong federal protection for journalists, activists, and everyday people who have been subject to harassing meritless lawsuits. 

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Tell Congress We Don't want a weaponized court system

The Free Speech Protection Act is a long overdue tool to protect against the use of SLAPP lawsuits as legal weapons that benefit the wealthy and powerful. This bill will help everyday Americans of all political stripes who speak out on local and national issues. 

Individuals or companies who are publicly criticized (or even simply discussed) will sometimes use SLAPP suits to intimidate their critics. Plaintiffs who file these suits don’t need to win on the merits, and sometimes they don’t even intend to see the case through. But the stress of the lawsuit and the costly legal defense alone can silence or chill the free speech of defendants. 

State anti-SLAPP laws work. But since state laws are often not applicable in federal court, people and companies can still maneuver to manipulate the court system, filing cases in federal court or in states with weak or nonexistent anti-SLAPP laws. 

SLAPPs All Around 

SLAPP lawsuits in federal court are increasingly being used to target activists and online critics. Here are a few recent examples: 

Coal Ash Company Sued Environmental Activists

In 2016, activists in Uniontown, Alabama—a poor, predominantly Black town with a median per capita income of around $8,000—were sued for $30 million by a Georgia-based company that put hazardous coal ash into Uniontown’s residential landfill. The activists were sued over statements on their website and Facebook page, which said things like the landfill “affected our everyday life,” and, “You can’t walk outside, and you cannot breathe.” The plaintiff settled the case after the ACLU stepped in to defend the activist group. 

Shiva Ayyadurai Sued A Tech Blog That Reported On Him

In 2016, technology blog Techdirt published articles disputing Shiva Ayyadurai’s claim to have “invented email.” Techdirt founder Mike Masnick was hit with a $15 million libel lawsuit in federal court. Masnick, an EFF Award winner,  fought back in court and his reporting remains online, but the legal fees had a big effect on his business. With a strong federal anti-SLAPP law, more writers and publishers will be able to fight back against bullying lawsuits without resorting to crowd-funding. 

Logging Company Sued Greenpeace 

In 2016, environmental non-profit Greenpeace was sued along with several individual activists by Resolute Forest Products. Resolute sued over blog post statements such as Greenpeace’s allegation that Resolute’s logging was “bad news for the climate.” (After four years of litigation, Resolute was ordered to pay nearly $1 million in fees to Greenpeace—because a judge found that California’s strong anti-SLAPP law should apply.) 

Congressman Sued His Twitter Critics And Media Outlets 

In 2019, anonymous Twitter accounts were sued by Rep. Devin Nunes, then a congressman representing parts of Central California. Nunes used lawsuits to attempt to unmask and punish two Twitter users who used the handles @DevinNunesMom and @DevinCow to criticize his actions as a politician. Nunes filed these actions in a state court in Henrico County, Virginia. The location had little connection to the case, but Virginia’s weak anti-SLAPP law has enticed many plaintiffs there. 

Over the next few years, Nunes went on to sue many other journalists who published critical articles about him, using state and federal courts to sue CNN, The Washington Post, his hometown paper The Fresno Bee, MSNBC, a group of his own constituents, and others. Nearly all of these lawsuits were dropped or dismissed by courts. If a federal anti-SLAPP law were in place, more defendants would have a chance of dismissing such lawsuits early and recouping their legal fees. 

Fast Relief From SLAPPs

The Free Speech Protection Act gives defendants of SLAPP suits a powerful tool to defend themselves.

The bill would allow a defendant sued for speaking out on a matter of public concern to file a special motion to dismiss, which the court must generally decide on within 90 days. If the court grants the speaker-defendant’s motion, the claims are dismissed. In many situations, defendants who prevail on an anti-SLAPP motion will be entitled to have the plaintiff reimburse them for their legal fees. 

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Tell Congress to pass the free speech protection act

EFF has been defending the rights of online speakers for more than 30 years. A strong federal anti-SLAPP law will bring us closer to the vision of an internet that allows anyone to speak out and organize for change, especially when they speak against those with more power and resources. Anti-SLAPP laws enhance the rights of all. We urge Congress to pass The Free Speech Protection Act. 

Cyber mercenaries present a grave threat to human rights and freedom of expression. They have been implicated in surveillance, torture, and even murder of human rights defenders, political candidates, and journalists. One of the most effective ways that the human rights community pushes back against the threat of targeted surveillance and cyber mercenaries is to investigate and expose these companies and their owners and customers. 

But for the last several months, there has emerged a campaign of bullying and censorship seeking to wipe out stories about the mercenary hacking campaigns of a less well-known company, Appin Technology, in general, and the company’s cofounder, Rajat Khare, in particular. These efforts follow a familiar pattern: obtain a court order in a friendly international jurisdiction and then misrepresent the force and substance of that order to bully publishers around the world to remove their stories.

We are helping to push back on that effort, which seeks to transform a very limited and preliminary Indian court ruling into a global takedown order. We are representing Techdirt and MuckRock Foundation, two of the news entities asked to remove Appin-related content from their sites. On their behalf, we challenged the assertions that the Indian court either found the Reuters reporting to be inaccurate or that the order requires any entities other than Reuters and Google to do anything. We requested a response – so far, we have received nothing.

Background

If you worked in cybersecurity in the early 2010’s, chances are that you remember Appin Technology, an Indian company offering information security education and training with a sideline in (at least according to many technical reports) hacking-for-hire. 

On November 16th, 2023, Reuters published an extensively-researched story titled “How an Indian Startup Hacked the World” about Appin Technology and its cofounder Rajat Khare. The story detailed hacking operations carried out by Appin against private and government targets all over the world while Khare was still involved with the company. The story was well-sourced, based on over 70 original documents and interviews with primary sources from inside Appin. But within just days of publication, the story—and many others covering the issue—disappeared from most of the web.

On December 4th, an Indian court preliminarily ordered Reuters to take down their story about Appin Technology and Khare while a case filed against them remains pending in the court. Reuters subsequently complied with the order and took the story offline. Since then dozens of other journalists have written about the original story and about the takedown that followed. 

At the time of this writing, more than 20 of those stories have been taken down by their respective publications, many at the request of an entity called “Association of Appin Training Centers (AOATC).” Khare’s lawyers have also sent letters to news sites in multiple countries demanding they remove his name from investigative reports. Khare’s lawyers also succeeded in getting Swiss courts to issue an injunction against reporting from Swiss public television, forcing them to remove his name from a story about Qatar hiring hackers to spy on FIFA officials in preparation for the World Cup. Original stories, cybersecurity reports naming Appin, stories about the Reuters story, and even stories about the takedown have all been taken down. Even the archived version of the Reuters story was taken down from archive.org in response to letters sent by the Association of Appin Training Centers.

One of the letters sent by AOATC to Ron Deibert, the founder and director of Citizen Lab, reads:

Ron Deibert had the following response:

Not everyone has been as confident as Ron Deibert. Some of the stories that were taken down have been replaced with a note explaining the takedown, while others were redacted into illegibility, such as the story from Lawfare:

It is not clear who is behind The Association of Appin Training Centers, but according to documents surfaced by Reuters, the organization didn’t exist until after the lawsuit was filed against Reuters in Indian court. Khare’s lawyers have denied any connection between Khare and the training center organization. Even if this is true, it is clear that the goals of both parties are fundamentally aligned in silencing any negative press covering Appin or Rajat Khare.  

Regardless of who is behind the Association of Appin Training Centers, the links between Khare and Appin Technology are extensive and clear. Khare continues to claim that he left Appin in 2013, before any hacking-for-hire took place. However, Indian corporate records demonstrate that he stayed involved with Appin long after that time. 

Khare has also been the subject of multiple criminal investigations. Reuters published a sworn 2016 affidavit by Israeli private investigator Aviram Halevi in which he admits hiring Appin to steal emails from a Korean businessman. It also published a 2012 Dominican prosecutor’s filing which described Khare as part of an alleged hacker’s “international criminal network.” A publicly available criminal complaint filed with India’s Central Bureau of Investigation shows that Khare is accused, with others, of embezzling nearly $100 million from an Indian education technology company. A Times of India story from 2013 notes that Appin was investigated by an unnamed Indian intelligence agency over alleged “wrongdoings.”

Response to AOATC

EFF is helping two news organizations stand up to the Association of Appin Training Centers’ bullying—Techdirt and Muckrock Foundation. 

Techdirt received a similar request to the one Ron Diebert received, after it published an article about the Reuters takedown, but then also received the following emails:

Dear Sir/Madam,

I am writing to you on behalf of Association of Appin Training Centers in regards to the removal of a defamatory article running on https://www.techdirt.com/ that refers to Reuters story, titled: “How An Indian Startup Hacked The World” published on 16th November 2023.

As you must be aware, Reuters has withdrawn the story, respecting the order of a Delhi court. The article made allegations without providing substantive evidence and was based solely on interviews conducted with several people.

In light of the same, we request you to kindly remove the story as it is damaging to us.

Please find the URL mentioned below.

https://www.techdirt.com/2023/12/07/indian-court-orders-reuters-to-take-down-investigative-report-regarding-a-hack-for-hire-company/

Thanks & Regards

Association of Appin Training Centers

And received the following email twice, roughly two weeks apart:

Hi Sir/Madam

This mail is regarding an article published on your website,

URL : https://www.techdirt.com/2023/12/07/indian-court-orders-reuters-to-take-down-investigative-report-regarding-a-hack-for-hire-company/

dated on 7th Dec. 23 .

As you have stated in your article, the Reuters story was declared defamatory by the Indian Court which was subsequently removed from their website.

However, It is pertinent to mention here that you extracted a portion of your article from the same defamatory article which itself is a violation of an Indian Court Order, thereby making you also liable under Contempt of Courts Act, 1971.

You are advised to remove this article from your website with immediate effect.

 

Thanks & Regards

Association of Appin Training Centers

We responded to AOATC on behalf of Techdirt and MuckRock Foundation to the “requests for assistance” which were sent to them, challenging AOATC’s assertions about the substance and effect of the Indian court interim order. We pointed out that the Indian court order is only interim and not a final judgment that Reuters’ reporting was false, and that it only requires Reuters and Google to do anything. Furthermore, we explained that even if the court order applied to MuckRock and Techdirt, the order is inconsistent with the First Amendment and would be unenforceable in US courts pursuant to the SPEECH Act:

To the Association of Appin Training Centers:

We represent and write on behalf of Techdirt and MuckRock Foundation (which runs the DocumentCloud hosting services), each of which received correspondence from you making certain assertions about the legal significance of an interim court order in the matter of Vinay Pandey v. Raphael Satter & Ors. Please direct any future correspondence about this matter to me.

We are concerned with two issues you raise in your correspondence.

First, you refer to the Reuters article as containing defamatory materials as determined by the court. However, the court’s order by its very terms is an interim order, that indicates that the defendants’ evidence has not yet been considered, and that a final determination of the defamatory character of the article has not been made. The order itself states “this is only a prima-facie opinion and the defendants shall have sufficient opportunity to express their views through reply, contest in the main suit etc. and the final decision shall be taken subsequently.”

Second, you assert that reporting by others of the disputed statements made in the Reuters article “itself is a violation of an Indian Court Order, thereby making you also liable under Contempt of Courts Act, 1971.” But, again by its plain terms, the court’s interim order applies only to Reuters and to Google. The order does not require any other person or entity to depublish their articles or other pertinent materials. And the order does not address its effect on those outside the jurisdiction of Indian courts. The order is in no way the global takedown order your correspondence represents it to be. Moreover, both Techdirt and MuckRock Foundation are U.S. entities. Thus, even if the court’s order could apply beyond the parties named within it, it will be unenforceable in U.S. courts to the extent it and Indian defamation law is inconsistent with the First Amendment to the U.S. Constitution and 47 U.S.C. § 230, pursuant to the SPEECH Act, 28 U.S.C. § 4102. Since the First Amendment would not permit an interim depublication order in a defamation case, the Pandey order is unenforceable.

If you disagree, please provide us with legal authority so we can assess those arguments. Unless we hear from you otherwise, we will assume that you concede that the order binds only Reuters and Google and that you will cease asserting otherwise to our clients or to anyone else.

We have not yet received any response from AOATC. We hope that others who have received takedown requests and demands from AOATC will examine their assertions with a critical eye.  

If a relatively obscure company like AOATC or an oligarch like Rajat Khare can succeed in keeping their name out of the public discourse with strategic lawsuits, it sets a dangerous precedent for other larger, better-resourced, and more well-known companies such as Dark Matter or NSO Group to do the same. This would be a disaster for civil society, a disaster for security research, and a disaster for freedom of expression.