The Delhi High Court on Monday held that retweeting content, alleged to be defamatory, would amount to publication of such content, thereby attracting liability under Section 499, dealing with the offence of defamation, under the Indian Penal Code (IPC). Importantly, as per the order shared by LiveLaw, the Court also observed that in case of multiple retweets, it is upon the aggrieved person to decide as to which retweet caused more harm to their reputation.
“At times, it is difficult to erase the reputational injury from public memory, as the tweets may be deleted but perceptions are difficult to be deleted from the minds of the community,” the Court remarked.
These observations were made by a single bench of Justice Swarana Kanta Sharma while hearing a plea by Chief Minister Arvind Kejriwal against summons issued to him in a 2019 defamation complaint filed by one Vikas Sankritayan who runs a social media page ‘I Support Narendra Modi’.
What’s the case about? Sankritayan filed a defamation complaint against Kejriwal for retweeting a tweet by YouTuber Dhruv Rathee in 2018. Rathee had published on his X account, a link to his video, wherein he alleged that the BJP IT Cell had bribed an individual to defame Rathee. The video in question also contained remarks against the page ‘I Support Narendra Modi’. Sankritayan has alleged that Kejriwal, who is followed by a large number of people, retweeted the “said defamatory content” without checking the authenticity of the video. In doing so, the complainant said that he has transmitted the defamatory content to “large number of audiences, at national and international level”.
While pronouncing the order, the Court examined whether the mere act of retweeting would constitute an offence under Section 499, the scope of freedom of speech of expression, and the role of social media reach or socio-political standing of the person retweeting or posting in determining the impact of an alleged defamatory content.
Defamation as defined under IPC:
Under IPC Section 499, defamation is defined as:
“Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.”
The section involves three exemptions related to imputations that serve the purpose of contributing to larger public good, reveal undesirable public conduct of a public servant, and the conduct of a public servant in addressing a public question.
Can retweeting alleged defamatory content amount to “publishing” under the definition of defamation?
Citing the case Mohd. Abdulla Khan v. Prakash K. (2018), the Court examined what constituted “making of an imputation” and “publishing of an imputation” under Section 499. It stated that to constitute defamation, an imputation—a charge or a claim—must be made with an intention, knowledge that the said charge will harm the reputation of the person against whom the imputation is made. This could be done by words, spoken or written, through signs or visible representations, and these imputations could be either made or published.
Justice Sharma explained:
“The difference between making of an imputation and publishing the same is: If ‘X’ tells ‘Y’ that ‘Y’ is a criminal — ‘X’ makes an imputation. If ‘X’ tells ‘Z’ that ‘Y’ is a criminal — ‘X’ publishes the imputation. The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made. Therefore, the essence of publication of a content which is defamatory in nature, for the purpose of applicability of Section 499 of IPC, is the communication of such defamatory content to persons other than the person who is being defamed.”
Additionally, while highlighting the need for Courts to examine the potential impact of social media content in causing “reputational harm”, Justice Sharma stated, “The audience, in this context, is not restricted to those physically present or within immediate earshot but encompasses the vast and diverse online community. In the digital age, the boundaries of ‘publication’ have expanded, and the implications of defamation are heightened due to the potential of widespread dissemination,”
Underlining the vast possibilities of amplification of content via social media platforms like X, she also opined that the concept of publication, traditionally associated with printed materials, need to be re-examined in context of virtual platforms.
Why it matters: The case deals with a critical matter of what actions of a social media user, in engaging with online content created/authored by others, can lead them to trouble. In October 2023, the Allahabad High Court ruled that merely liking a post online does not amount to publishing or transmitting obscene material online, and will not attract legal penalties for the same. But, does the ruling imply that sharing or forwarding a post amounts to re-publishing of content? Does intent of sharing posts matter, when Courts tackle matters related to social media content and its impact? If yes, how would one’s intent be determined?
Further, like the Allahabad HC ruling, the Delhi HC’s observations also point to a 2012 matter, when two women from Maharashtra, Shaheen Dhada and Renu Srinivasan, were booked under Section 66A of the IT Act, which criminalised the transmission of “grossly offensive” messages via a computer or communication service. While Dhada actually posted the content on her Facebook, Srinivasan was also arrested for simply liking the post. Outraged by the arrests of the two women, lawyer Shreya Singhal moved the Supreme Court seeking an amendment to the Section 66A of the IT Act. Her petition resulted in the top court striking down the “unconstitutionally vague provision” in a historical verdict in 2015.
Defamation vs. Freedom of Speech
The Senior Counsel, Manish Vashishth, appearing for Kejriwal argued that retweeting does not satisfy the conditions to prove defamation and that the retweet was done without any intent to harm the reputation of the complainant. He further stated that the petitioner was neither the creator/author or publisher of the video that was retweeted.
The Court observed that while the content was originally created by an individual who did not have much public following, the petitioner’s act, in this case a politician, of retweeting such content may create an impression among the public that the petitioner has verified the content to be true. Given the large following of the CM, the Court observed that this contributed to spreading the defamatory content to a larger audience.
“In this background, this Court holds that retweeting or reposting defamatory content, without any disclaimer as to whether the person so retweeting agrees or disagrees or has verified the content so posted or not, and as to whether he projected to the world at large, who care to follow him, that he believes the content to be true so shared, a person would be republishing the original defamatory content which has the potential of lowering the moral or intellectual character or credit of a person,” the Court observed adding that a sense of responsibility has to be attached while retweeting content about which one does not have knowledge.
In analysing the scope of the meaning of the word “publication” and the act of retweeting or reposting, the Court addressed the critical question of freedom of speech and expression which is at stake here. However, the Court took a view that essentially spoke of limitations to free speech
It observed, “…it is crucial to emphasize that freedom of speech, while a fundamental right, does not grant individuals the license to inflict harm or tarnish the reputation of others. This distinction becomes particularly pertinent when grappling with the court’s dilemma of striking a balance between the cherished value of free expression and the equally essential need to protect an individual’s reputation.”
Will every retweet of the content in question attract liabilities under Section 499?
While the Court held that all acts of retweeting “may amount to publication of defamatory imputation”, the extent of harm caused to the reputation of the aggrieved person will depend on factors like the social media reach, and level of influence of the person retweeting such content.
Justice Sharma further explained, “The gravity of the situation would also differ substantially in such cases especially in view of explanation 4 of Section 499 of IPC which clearly provides that for an imputation to be defamatory in nature so as to harm one’s reputation, it must inter alia directly or indirectly, in the estimation of others, lowers the moral or intellectual character or credit of the person who is being defamed. Therefore, the social media reach as well as the social and political standing of the person, retweeting the defamatory imputation, is of great relevance.”
Emphasising on the background of the petitioner and his role as a public figure, the Court observed that if a person with lesser number of followers retweets the content, the impact would not be as significant and whether or not it would fall within the ambit of defamation, will be a matter of trial.
The Court, therefore, decided, “…it is ultimately for the person so aggrieved to decide as to which retweet caused more harm to his reputation, and inter alia lowered his moral or intellectual character or his credibility among the members of society. This also will be decided by the learned Trial Court on the basis of material before it as to whether the retweet with its accompanying circumstances had the potential to defame the complainant concerned.”
Also Read:
- No Citizen Can Be Prosecuted Under Struck Down Section 66A Of The IT Act: Supreme Court
- Supreme Court Rules Section 66A Unconstitutional; Says Govts Come And Go, The Law Persists
- ‘Grossly Offensive Speech’: IT Act’s Struck Down Section 66A Reappears In India’s Cybercrime Proposal At U.N.
- Timeline: Home Ministry Asks States To Withdraw Police Cases Under Struck-Down Section 66A
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