Lodha group's DEFAMATION NOTICE to Shilpi & me

Dear friends,

As you know, Lodha group is understandably shaken up by a video wherein Shilpi Thard and I made a product review of her two flats at Lodha New Cuffe Parade, Wadala, which has gone viral. The reason for any such video going viral is that it resonates with the experience of a large number of actual users, estate agents and others within the real-estate trade, and other members of the general public. 

And so Lodha has issued a legal notice to us yesterday. They want us to delete our article and videos about Lodha NCP, and are threatening to sue us for defamation and damages. Click here to read their legal notice.

Shilpi and I are consulting with lawyers to give it an appropriate reply by way of a formal legal notice. But, that said, here is my proposed response from my standpoint as a journalist and blogger. Let me know in the comments what you think, or reach out to me on Whatsapp (81694 71229).

I am sharing all this with you guys out there, because I recognize that you are with me in this matter. I believe in you, the public.

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My Proposed Reply to legal notice from Lodha group dated 9th January, 2019

Dear Sir,

Ms. Shilpi Thard and I are in receipt of your emailed legal notice issued on behalf of your clients, Lodha Developers Limited. Below is our brief reply, on behalf of both of us. We reserve the right to give a more detailed and pointwise response later on if necessary. Needless to say, all your allegations are hereby refuted, and no statement of allegation made by you may be taken as admitted unless explicitly done so.

Firstly, you allege that the "offensive blog" titled "Flat Buyers shocked at Lodha New Cuffe Parade; Fire and Accidents waiting to happen" is defamatory.

Secondly, you allege that all the videos uploaded on my channel on 12th November (links to which are in the above-mentioned article) are defamatory.

Thirdly, you further allege that my video titled "NEW! Live Demo of Lodha New Cuffe Parade's internal walls strength" is defamatory.

And fourthly, you allege that the additional statements published on my blog titled "NEW! Destructive testing of Lodha NCP's flimsy walls" is defamatory.

Sir, we wish to point out that you have made sweeping allegations of defamation, without any necessary details. The blanket statements and sweeping allegations contained in your legal notice are malafidely intended to intimidate, muzzle and gag us, and to nullify the sacred freedom of free speech and expression guaranteed to us by our Constitution.

Moreover, such wild allegations seek to prevent us from doing our Fundamental Duties as per article 51A, particularly (h) to develop the scientific temper, humanism and the spirit of inquiry and reform; (i) to safeguard public property... (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

The huge amounts of money spent by your client on advertisement etc. cannot be a justification for us to fall silent. Rather, we would argue that any commercial venture impacting thousand of people, with a huge advertising budget at its disposal, cannot be considered a "sacred cow" protected by defamation laws.

Whatever we have done in our impugned articles and videos is to provoke public deliberation of a massive commercial venture, namely Lodha New Cuffe Parade project and its towers. This commercial venture has impacted and is currently impacting lakhs of people -- not only the flat-owners and potential buyers, but also workers and the public-at-large in its surroundings.

The investor safety and public safety issues raised by us via the impugned articles and videos are the need of the hour. Knowing what we know and seeing what we have seen, we cannot, in good conscience, remain silent. We would be doing this country and its people a great disservice if we fell silent.

Even assuming a hypothetical scenario that our articles and videos are filled with falsehoods, you would still not have the necessary legal grounds to have them taken down or retracted, because these are primarily about the Lodha New Cuffe Parade project and its public safety / investor safety issues. 

The project is essentially a product (i.e. flat) with some bundled services (i.e. common amenities). To discuss the merits and demerits of products and services that are being publicly offered for sale cannot possibly attract the legal provisions of defamation.

Please keep in mind that we live in a country where the freedom of speech is enjoyed to the extent that it is lawful to publicly refer to the Prime Minister and prime ministerial candidates with derogatory nicknames like "Feku" and "Pappu". This sets a high benchmark for tolerance for dissenting opinions and public discourse in our country, and we are proud of this heritage. These freedoms are hard-earned, and citizens over the decades have fought hard to earn and retain this freedom of expression. We will not be bamboozled and cowed down with threats -- even threats of abusing legal processes to muzzle us. 

Also, please remember that the possibility of causing financial loss cannot be used to muzzle the public, otherwise critical film-reviews in leading newspapers would have to be banned and film critics would be sued, as they affect the financial prospects of films that are produced at a cost of hundreds of crores! It is perfectly lawful in our country to campaign (regardless of the merit of the campaign or the movie), that a movie like Padmavat should not be publicly screened, should be banned, or boycotted by the public! Likewise, even if we were to actually incite the public to boycott Lodha New Cuffe Parade project because of its infirmities, or for that matter all Lodha projects, it would still be lawful! The possibility of Lodha suffering a financial loss, cannot define the limits of free speech insofar as it voices public concerns.

Likewise, it is the right of every citizen, every layman, to criticize a badly designed, unsafe and overpriced product. One  doesn't have to be an architect or an engineer to criticize a bad product to make a video about it. Lodha New Cuffe Parade is a product, and it's quality standards will have to speak for itself. The user-experience will have to speak for itself. To criticize a product is NOT the same as defaming the producer; there is a very clear distinction here, and this distinction is malafidely sought to be confused via your legal notice.

For the record, I am not a layman, I am something of a domain specialist. As a journalist, I have been studying fire-safety issues for close to a decade, and I have more than a nodding acquaintance with the subject of fire safety. I have collaborated with various news channels to make detailed shows about fire safety norms violations, and I have been interviewed on this subject multiple times. In the early years of this decade, I was invited to be a panelist at many news channels in the aftermath of any fire accident that happened in this city. I have written and published detailed articles on this subject as early as 2011-12. Here is the link to one blog posted in August 2012, where my work is mentioned and an article written by me in consultation with a Deputy Chief Fire Officer is published. There are also many other specimens of my work as an activist for fire safety and public safety on the internet.

Your legal notice insults the intelligence of the people who have bought flats at Lodha NCP, many of whom are living there. If we were wrong and misguided, and we were spreading malicious rumours merely with an intention to cause financial harm to Lodha Developers, then the same people would be cursing and abusing us, and we would stand exposed. People who can spend crores of rupees on a flat have a mind of their own, and they can easily distinguish truth from lies. Let the buying public think and decide for themselves whether the full-page advertisements, brochures and smooth sales-talk represent the reality, or whether our articles and videos are showing the actual, behind-the-scenes reality.

If your clients have something to say in their own defense, tell them to come out here and say it in the public domain. Let them take a walk with us in the premises of Lodha New Cuffe Parade, and explain away whatever we have said. Lodha Group has amazing brand value, and their credibility with the public is very high. What is the need for them to hide behind the closed doors and high walls of judiciary to establish their truth and our alleged untruth?

For any notice of defamation to be legally valid, please be informed that:

1) Firstly, you need to point out exactly which lines or words contained in the said "offensive" articles or videos are defamatory to which person, alive or dead. 

2) Then you need to establish with facts and documents that the specific word or line are untrue.

3) Likewise, you need to establish that whether true or otherwise, it is irrelevant or unnecessary for the public to know whatever is put forward in the allegedly defamatory lines. In other words, you need to show how the allegedly defamatory lines are not concerning public safety and the flat-buyer's well-being, 

4) Overall, you need to establish that the allegedly defamatory lines or words are not subject to the exceptions of the legal definition of defamation (IPC 499). We reproduce here the well-known three exceptions to defamation for your ready reference: "First Exception.— Imputation of truth which public good requires to be made or published.— It is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published. Whether or not it is for the public good is a question of fact. Second Exception.—Public conduct of public servants.—It is not defamation to express in a good faith any opinion whatever re­specting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further. Third Exception.— Conduct of any person touching any public question. —It is not defamation to express in good faith any opinion whatever respecting the conduct of any person touching any public question, and respecting his character, so far as his character appears in that conduct, and no further."

5) Finally, after pointing out the above, you may ask us to delete those lines or words from our articles or videos. You cannot ask us to take down or retract the entire articles or videos, as these are primarily about your client's real estate project viz. Lodha New Cuffe Parade. A real estate project is not a person, and therefore, it cannot be defamed.

Sir, we are eagerly awaiting from you the specific words and lines that you allege are defamatory, and which would potentially invite the provisions of the applicable laws.

Yours sincerely,

Krishnaraj Rao