New Delhi: Reposting defamatory content on social media could attract the offence of defamation, the Delhi High Court observed Monday as it refused to quash the summons issued to Chief Minister Arvind Kejriwal in a criminal defamation case for retweeting a video circulated by YouTuber Dhruv Rathee in May 2018.
Justice Swarana Kanta Sharma asserted that “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”.
It, therefore, held that for the purpose of this case, “retweeting a content, which is allegedly defamatory, on the Twitter account and projecting it to be as if his own views, will prima facie attract the liability under Section 499 of IPC, for the purpose of issuance of summons”.
Section 499 of the IPC describes the offence of ‘defamation’. It says that whoever makes or “publishes” any imputation concerning any person intending to harm the reputation of a person, can be held liable for defamation. This could be through “words either spoken or intended to be read, or by signs or by visible representations”.
The case pertains to a video that Rathee uploaded on YouTube on 6 May, 2018. In the video, titled ‘BJP IT Cell Part-2’, the YouTuber makes allegations against the complainant, Vikas Sankrityayan — the founder and operator of a social media page called ‘I Support Narendra Modi’.
In the video, as transcribed in the high court’s order, Rathee referred to Sankrityayan as “second-in-command of the BJP IT Cell”, and said that he “spread fake news”, among other things.
According to the complainant, Rathee posted the video on Twitter (now called ‘X’) on 7 May that year. Kejriwal reposted this video, prompting Sankrityayan to file a complaint against him, demanding criminal defamation proceedings.
In July 2019, a magistrate’s court had summoned Kejriwal in connection with the complaint. The Delhi CM challenged the summons before the sessions court, which dismissed his plea in October 2019. He then filed a petition before the high court.
In its 50-page order, the Delhi HC noted that it was for the trial court to determine whether or not a tweet is defamatory to attract Section 499 IPC. However, whether retweeting “defamatory content” will amount to “publication” or not under Section 499 will have to be decided before the commencement of the trial, the court said.
The judge observed that while Kejriwal may plead the absence of any malicious intent in retweeting, the court has to “consider (the) responsibility that accompanies the petitioner’s political and social standing”.
“Needless to say, the large social media following of a Chief Minister of a State undoubtedly implies a wider reach, making any retweet, a form of public endorsement or acknowledgment,” the court said. “As a leader with political standing and maturity, the petitioner is presumed to be aware of the potential impact of his actions, including retweets, on the public perception. When a public figure, particularly one with a political standing, tweets or retweets a defamatory post, the stakes and repercussions escalate given the broader implications on society.”
The audience is the citizenry at large, “whose opinions and decisions may be influenced by the information they consume, including defamatory statements published on social media”, the order said.
It added that while the original author of the alleged defamatory content will also be liable for any action if a complaint is filed against him, it was up to the complainant to decide whether the person who retweeted such content had caused him more damage or not, given that he had more friends or followers.
Question before the court — is a retweet ‘publication’?
In its order, the Delhi HC said it was now examining “whether ‘retweeting’ any defamatory content will be covered in the meaning of ‘publication’ or not” under Section 499 of the IPC. It also said that it was looking into whether the person who retweeted the content could take the defence that he was not the original author of the content.
It then observed that allowing an accused to contend that it was a retweet and not the original tweet “would amount to permitting people to retweet any objectionable or defamatory content in cyberspace and social media platforms, without any responsibility being attached to their act of posting such content on social media even if the content has the potential to cause reputational injury to another”.
The court, therefore, asserted that by retweeting or reposting defamatory content, without any disclaimer as to whether the person so retweeting agrees or disagrees or has verified the content, the 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 said that while all acts of “retweeting” may amount to “publication” of defamatory imputation, the extent of harm caused to the reputation of the aggrieved person would depend on the level of influence and the potential reach of the individual who retweets such defamatory imputation.
“If a public figure with millions of followers retweets any defamatory content, the impact on the aggrieved person’s reputation and his character will be much greater, since the larger audience and the influence wielded by a public figure would amplify the spread and longevity of the defamatory content,” it explained.
It also rejected Kejriwal’s defence that the complainant had chosen to prosecute only him for retweeting the alleged defamatory imputation even though several other thousands of social media users had retweeted the same original tweet. It held that the harm inflicted on Sankrityayan by Kejriwal, “who not only commands a substantial social media following but also holds the position of the Chief Minister of Delhi, would be exponentially more than that resulting from thousands of retweets by other social media users”.
The court then ruled that though every “retweet” of defamatory imputation would ordinarily amount to “publication” under Section 499 of IPC, it is ultimately for the complainant to decide which retweet caused more harm to his reputation, and lowered his moral or intellectual character or his credibility among the members of society.
It added that it would also be decided by the trial court whether the retweet had the potential to defame the complainant.
The court also observed that another thing that would be considered during the trial was whether it was Kejriwal’s duty, “as a political person of longstanding, to have taken some steps to verify the story or allegations against the respondent before posting it on social media, which would make an impact on a huge section of society and (have) corresponding effect on the reputation of the person concerned who is at the centre stage of the defamatory content”.
It, however, refused to go into any arguments on “personal agendas or the potential impact or implications on the political landscape”, observing that the court should adjudicate a criminal matter solely based on the legal provisions and established judicial precedents.
(Edited by Uttara Ramaswamy)
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