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Activist did not do due diligence in seeking clarification: Delhi High Court in Saket Gokhale vs Lakshmi Puri case

The court order in the defamation case against Gokhale raises an interesting question of possible overlap with the IT Rules and its many requirements. 

The Delhi High Court directed activist Saket Gokhale to remove tweets ‘defaming’ former assistant secretary-general to the United Nations Lakshmi Puri. Gokhale in his tweets, which have now been deleted, had made allegations about the sources of income of Puri and her husband, Union minister for Housing and Urban Affairs Hardeep Singh Puri.

Why this matters? The ruling comes at a time when content on social media platforms is under scrutiny more than ever due to the possible invocation of the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021. In the past two months, several cases have been registered against a few people and micro-blogging site Twitter for allegedly not taking action against unlawful content on the platform. For instance, the Ghaziabad Police registered a case against a few Congress politicians and media outlets such as The Wire for posting a viral video that showed an elderly Muslim man being assaulted.

The present case at the Delhi High Court pertains to tweets Gokhale made on June 13 and June 26, wherein he made reference to properties allegedly purchased by Lakshmi Puri in Switzerland and also referred to the Union minister. Puri, through her counsel Karanjawala and Co, had filed a defamation suit seeking Rs 5 crore in damages from Gokhale.

In these circumstances, the plaintiff has filed the present suit before this Court, seeking a mandatory injunction against the defendant, to immediately take down/delete the Tweets directed against the plaintiff, the URLs of which have been provided in the plaint, as well as all other similar Tweets, with a further restraint, against the defendant, from publishing any further Tweets levelling false allegations against the plaintiff or her family members. The plaintiff also seeks an apology from Defendant, along with damages to the tune of ₹ 5 crores, to be deposited in the PM CARES fund — the Delhi High Court order

What did the court say?

  • The Delhi High Court directed Gokhale to delete the tweets pertaining to the Puris immediately, “as well as connected Tweets which may form part of the trail of tweets by the defendant against the plaintiff”.
  • Gokhale is restrained, pending further orders of Delhi High Court, from posting any allegedly defamatory or factually incorrect tweet against Puri.
  • If Gokhale fails to comply with the direction within 24 hours of the judgement, Twitter should delete the Tweet. If Twitter does not comply with the direction, it should be added as a defendant in the case, the court said.

‘Was clarification sought regarding allegations?’

During the course of the proceedings, Judge C Hari Shankar repeatedly sought an answer from Saket’s counsel Sarim Naved on the question of whether Saket had given a chance to Puri for responding to the allegations in his tweet, or if he had sought further clarification regarding the matter from any government official.

“While acknowledging that, prior to posting the Tweets, with which the plaintiff claims to be aggrieved, his client did not seek any clarification either from the plaintiff or from any other statutory authority, Mr. Naved submits that, “unfortunately”, the law does not require him to do so. He accepts, however, candidly, that, before posting the said Tweets, the defendant could have sought a clarification, in the first instance, from the Finance Ministry, but asserts that this requirement was fulfilled, as he had tagged the Hon’ble Finance Minister in his very first Tweet,” the judge said in his order.

Direction in spirit of the law: Experts

MediaNama reached out to a few legal experts to record their opinion regarding the court’s direction and they were unanimous in their opinion that the order was warranted as the information uploaded on Twitter by Gokhale was “unsubstantiated”.

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“The present judgment identifies those set of so-called social vigilantes who prefer to hold to ransom carefully nurtured reputations by posting completely false and unverified contents for quick success or trends. All this is done under the guise of freedom of speech and expression simply forgetting that truth and fact-checking is also an important facet of freedom of speech and expression. The judgement does not infringe upon the freedom of expression of an individual, rather simply states that due diligence before posting a content especially in cases containing accusatory content, should be done. This is a minimum basic requirement before posting that society at large must adopt,” Meghna Mishra, Partner, Karanjawala & Co,the firm which represented Puri in the case.

“Although interim in nature, the order of the High Court highlights the basic requirement of the law of defamation, that is, if the information is unsubstantiated, it would hit the end of the road,” Siddharth Jain, co-founding partner of PSL Advocates and Solicitors.

Kritika Seth, Founding Partner, Victoriam Legalis – Advocates & Solicitors, said “With this case and other cases involving content posted on social media, allegedly without proper due diligence or allegedly deceiving, falsely smearing or misinformation fledged content such as the Marico – Bhansali a.k.a. “Bearded Chokra” case in the Bombay High Court about a year ago or so, coming to fore, the said judgment will be of substantial significance in the developing jurisprudence related to such social media, personality rights related matters as well as other techno-legal matters that are arising more and more in contemporary times, and which will surely increase in volume and significance in the near future.” Jain, meanwhile, simply said that he did not see any conflict between “the rights and law of the land”.

Possible overlap with IT Rules 2021?

Since the court’s order also directed Twitter to remove Saket’s tweet, it is necessary to mention the IT Rules 2021 which has brought forth many compliance-related demands made to social media platforms such as appointing grievance officers who would be responsible for dealing with tweets like the ones involved in the case. Therefore, is there a possible overlap in the direction issued by the court and the IT Rules 2021?

Seth opined that the current method of direction (to Twitter) has been in place from before the implementation of the IT Rules and said that it was done so that action could be taken in a timely manner. She said, “This is a recourse that has been — subject to the probable difference in timelines or other aspects of compliance — utilised by the Courts for such matters prior to the new IT Rules, 2021 as well. In this way, by ensuring that the social media platform removes the content, it can be made sure that the reliefs granted by the Courts in such matters are not rendered ineffective since time is of the essence in such cases.”

Among other things, the new IT Rules, which were notified on February 25 and went into effect from May 25, require social media platforms with over 5 million registered users in India to:

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Appoint key managerial roles: Social media intermediaries must appoint a chief compliance officer, nodal contact person, and resident grievance officer, all of whom are Indian residents and employees of the platform. While WhatsApp and Telegram both complied with this requirement a few days after it went into effect, Signal and Apple are yet to do so.

Enable traceability: As per the IT Rules, messaging apps must also enable the identification of the first originator of a message. No major messaging platform has complied with this requirement yet. WhatsApp has sued the Indian government over this requirement, arguing that the traceability mandate will require the platform to break end-to-end encryption for all its users, which will violate the users’ right to privacy and freedom of speech and expression, and is beyond the scope of the parent Act.

Also read

Update, July 16, 6.14: Added a quote from Karanjawala and Co

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Among other subjects, I cover the increasing usage of emerging technologies, especially for surveillance in India

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