-Lakshay Sharma*
Abstract
The Delhi High Court, recently in Arvind Kejriwal v. State of Delhi and Another, declared that in cases of cyber defamation, every re-tweet/repost of content that is defamatory would be on the same footing as the author of the tweet/post and would be tried under Section 499 of the erstwhile penal code. The writer argues that an automatic categorization of a simple forward as equal to libel/defamation would be catastrophic that would result in a multiplicity of litigations and have a crippling effect on the exercise of freedom of expression, a cherished and beloved right.
Background
Dhruv Rathee, a popular YouTuber published a video falsely alleging that a certain person was bribing another person to defame him (Rathee) publicly. The URL of the said video was posted on the social media site Twitter, now "X". Consequently, Mr Arvind Kejriwal the Chief Minister of Delhi reposted the URL on his account, sharing the same with his followers. The person alleging defamation by Rathee claimed that by retweeting the content, Mr Kejriwal drew the attention of his followers towards the false accusations and had committed defamation by repetition. The trial court sided with the complainant, concluding that the re-tweet in itself amounted to defamation, citing "tale-bearers are as bad as tale-makers" and that by repeating the lies, the re-tweeter was on a similar footing as the author of the defamatory content per se.
Before the High Court
On appeal the High Court was primarily confronted with two questions: firstly, whether a re-tweet of a defamatory tweet amounted to a new "publication" for defamation, and secondly, whether each one of such re-tweets would attract liability under Section 499 of the Indian Penal Code?
Unfortunately for the appellant, both queries were answered in the affirmative. The court was of the view that every retweet would be a fresh publication. The reasoning rendered by the court was that the essence of ‘publication’ of defamatory content is the ‘communication’. Hence, when a person shares/forwards/re-tweets content available on social media, he/she opens up new channels and thereby disseminates the content to an entirely new audience, that was "presumably" unaware of the content. In answering question as to whether such "publication" would invite repercussions, the court created a presumption whereby it ruled that if the person re-tweeting is a public figure, who amasses several followers on social media sites would be liable for libel, those individuals, who lack social media "influence" and do not have that much of a "digital footprint" cannot be said to have committed defamation because the want of numbers would apparently disable the level of percolation and hence the "level of harm" would be the determining factor for deciding on liability.
Understanding Cyber Defamation
Although the judgment delivered by the court, addresses only two questions: publication and liability, a deeper analysis indicates that there are more questions, which the court has failed to answer.
The thing of utmost relevance is understanding the nature of cyber defamation. Online libel/slander is a completely different realm altogether and should not be evaluated on the same footing as traditional defamation, which historically has been restricted to geographical limitations. For instance, the circulation of a newspaper, pamphlet, flyer etcetera.
The 4th Industrial Revolution canvassed a digital age of computers and networks that transcended boundaries. One of the products of the revolution was the rise of the internet. Internet coupled with social networking websites like Facebook, Twitter, and WhatsApp, engages billions of individuals daily. People write stuff, disseminate information, share stories, and use these applications as a platform for social cohesion. Unfortunately, though, there is a flip side of everything. It is well known that not everything that is posted or reposted on social media is true, reliable, and legitimate, and quite often the content shared breaches the parameters of privacy and morality. In Barrack Gold Corporation v. Lopehandia, it was stated that the "internet is one of the most powerful tools of communication ever invented, potentially a medium of limitless defamation".
The Indian law on defamation falls short in dealing with the issue of online defamation. The Offence of Defamation in the historic sense, was introduced to silence any real opposition to the government. Section 499 was like the "Sword of Damocles", hanging on swadeshi publishers, media groups, and free-minded individuals. It, therefore, suffered from the limitation of reach and percolation. This is exactly not the case with online defamation. With the click of a button, the content becomes perennial and available to anyone subscribing to the service. The reason is quite obvious. Internet commentaries are not necessarily nuanced and sophisticated but are unplanned and prompt.
The law on online publication recognizes two different rules of the publication: the single rule and the multiple rules. Single publication as the name suggests, means that there can only be one cause of action concerning defamation, whereas the multiple rule implies that every new publication, even if it is not attributed to the original author would give rise to a new cause of action every time it is repeated. The Indian law is mute on which one of the two rules is to be applied. Ideally, in cases of online defamation, a single rule has been preferred, quite simply because the vastness of the internet would render it impossible to penalize every user.
Interestingly though, the Delhi High Court on an earlier occasion preferred the single rule of publication in cases of online defamation. It opted for the rule for being more pragmatic, considering the limitation period for a suit for defamation which is one year from the date of publication. The only caveat is that if the available material was to be republished to "reach" a new audience, then it would amount to defamation.
Retweeting Allows Reaching New Audiences
A retweet (now referred to as a repost), is akin to a share on Facebook and a forward on a WhatsApp. The feature is quintessential in the functioning and usage of Twitter. To quote Meredith Ringel Morris, "Retweeting is one of the basic forms of currencies. You find something interesting, and the next moment you want to share it with others". McClain reports that nearly 50% of the tweets are re-tweets. But whether a retweet necessarily imply, the endorsement of the content being shared?
There are two models to interpret a particular retweet. One is the endorsement model that has been applied in the judgment, where the court supports the presumption that by retweeting, the person necessarily aligns his interests and views, with the views of the author.
The other model, which is the correct model as per the author is the "quotation model". A retweet is nothing more than a simple quotation, that indicates the content. We have often seen many Twitter handles using this phrase, "Retweets are not endorsements". It simply means that the person sharing the content is not upvoting the content, but rather sharing it with others because he/she found it relevant or interesting. Many find Hitler's point of view interesting, but not everyone supports it.
The offence of defamation encompasses the element of mens rea. If the retweet is a mere repost of the original tweet, how can it be possibly construed that the person doing so shares the same opinion? It is a false idea of an old saying, "Birds of the same feather flock together". The retweeter doesn't need to be flocking with the original author by simply sharing it with his followers. Sarosh Razaq Khan states that a vast majority of retweets are offered without additional comments and are nothing but mere adoptions. Therefore, it would be impractical to make a reasonable inference concerning the nature of republication.
But what could be that "something more", that brings the user into the domain of defamation? Interestingly, the new sharing feature on Twitter allows user to simply repost the original tweet or repost it with a "quote" or their comment. If a person retweeting a defamatory post, does it with a quote of his own, giving context where he supports the view of the author, then there can be no holds barred.
Overall, circumstances have to be weighed in entirety to conclude. In Raghav Chadha v. State, on the question of whether retweeting would invite liability under Section 499, held that the answer to the question is dependent on the "totality of circumstances" and any inference before the trial would likely cause prejudice. However, whether a very retweet would be considered as a “publication” or not was not dealt in detail by the court. In Godfrey v. Demon Internet Limited, it was held that a person could not said to be a publisher, if he merely prints, produces, distributes, or sells the content. The point the writer stresses here is that a passive part in dissemination should not be penalized. Freedom of speech includes the right to acquire information and to disseminate it.
Frenzy for Followers
The ruling is unusual for another reason. The decision has laid too much emphasis on the fact that the person who retweeted the defamatory content is a public figure. While cautioning such figures to be extra careful before retweeting/sharing any defamatory content on their profiles, the court held that anything they say are not mere whispers and the number of followers such public figure command will lead to insurmountable damage to the person alleging defamation.
But the question is: who exactly can be considered as a public figure? What are the parameters that make somebody a public figure? Whatever the reasons may be, categorization based on the number of followers can certainly not be a relevant factor. An illustration will explain my point. Suppose, a certain cabinet minister, obviously a public figure in all sense, retweets a defamatory post. However, the concerned minister not being a "popular figure", does not have a significant number of followers, and the impact is not severe. How will the law deal with such individuals? Number of followers on social media cannot be the only test of the influence.
As a result of this false presumption that numbers make the difference, the court inevitably lands on a wrong conclusion, which is the "level of harm". The law on defamation in this regard is quite clear. Since, "publication" implies communication, even if the defamatory material is communicated to a solitary individual who was previously unaware of it, the communication is punishable. In Brown v. Kelly Broadcasting Company, it was held, that "the defamatory matter doesn't need to be communicated to a large or even substantial group of persons.
There is another larger issue which is looming. What would happen in a defamation suit, where the opposing parties are both “public figures”. In many foreign jurisdictions, where a public figure alleges defamation, the required relief is not given because when somebody is a “public figure”, criticism and fair comment is expected and for encouraging public debate in an already disinformed world, such claims are not processed further.
Conclusion
The ruling suffers from material contradictions. On one hand, it argues that every retweet is a publication and on the other it says, not every retweet would be punitive, based on the “political standing” and “followers” of the person. It creates a new class of litigants, where "public figures" need to be cautious enough of their utterances in public, where they usually are prompt and more like an informal conversation, a chit-chat. The ruling, if unchallenged, will inevitably result in political warfare restricting public debate, which is an already diminishing space. Public figures are meant to be outspoken, though diligent. In New York Times v. Sullivan, it was held, that "debate on public issues should be uninhibited, robust and wide-open". And a bare retweet cannot even qualify as an opinion, leave an endorsement.
There is another darker aspect of the ruling. Today, a retweet has been penalised. Can tomorrow, a simple share of a Facebook post land me in trouble? Even though the ruling makes it clear that the question of liability will be decided only after the conclusion of trial, an everyday individual will still face a trial simply for retweeting. As jurists, free speech enthusiasts and citizenry in general are mooting for decriminalisation of the offence, such judgments will trample down heavily on the right to disseminate information, which is part of the fundamental right of expression.
In the ghost rider movie franchise, the protagonist keeps uttering one phrase, “you can’t live in fear”. The most appropriate phrase describing this ruling should be “you can’t speak in fear”, the fear of being sued. In Ram Jethmalani v. Subramanian Swamy, the Delhi High Court stated;
“If a person is under the fear of being sued, he may not express himself freely on public issues, and this would chill the public debate.”
*Lakshay Sharma is an advocate and an independent researcher based in Delhi.