In the last decade, India has witnessed exponential growth in the use of social media, with over 467 million active users. While the laws endeavour to tackle the contemporary challenges posed by evolving technology, the courts also play a prominent role in safeguarding the interests of users and the common populace.
The Delhi High Court has held that retweets can be endorsements. On February 5 this year, while grappling with the issue of defamatory tweets, the Court expressed its concerns regarding consequences extending “far beyond a mere whisper in someone’s ears.”
The matter stems from a video made by YouTuber Dhruv Rathee in May 2018 alleging that the Information and Technology cell of the Bharatiya Janata Party (BJP) attempted to bribe Vikas Pandey to defame him. Rathee shared the video on his Twitter (now ‘X’) handle, which Delhi Chief Minister Arvind Kejriwal later retweeted.
In this regard, Justice Swarana Kanta Sharma considered if a retweet amounted to “publication” of defamatory content under Section 499 of the Indian Penal Code. In an attempt to lay the jurisprudential foundation of defamation in the cyber world, the Court held that every retweet of defamatory nature would be punishable if it resulted in reputational harm. The Court also noted that a retweet or a repost with a disclaimer that “the content has not been verified regarding its correctness/genuineness” might be sufficient not to attract the penal provisions of defamation.
On February 26 this year, the Supreme Court of India temporarily stayed the trial court proceedings against Kejriwal. Justice Sanjiv Khanna made a prima facie observation that a retweet could either be interpreted as “an endorsement” or “just sharing […] information” on social media.
Single publication rule versus multiple publication rule
In an order delivered in November 2013, the Delhi High Court considered whether a defamatory post on Facebook resulted in a single cause of action for which the statute of limitations began to run from the date of the original posting, or whether it gave rise to a recurring cause of action as and when viewed. While alluding to the lack of judicial precedents on this issue, Justice Vipin Sanghi elaborated on the two conflicting legal positions: the single publication rule and the multiple publication rule adopted by various countries, including the UK, the US and Canada.
The multiple publication rule, currently followed in Canada, construes every article/statement published or republished to result in "an individual, discrete, actionable, defamatory" cause of action. On the contrary, the single publication rule, followed in the US and UK, recognizes that multiple dissemination or distribution of the original page/post would not give rise to a fresh cause of action.
Adopting the multiple publication rule would mean that the limitation period sets in from the time of the last publication rather than the time of the original publication. Following a detailed analysis of various jurisdictions, the Delhi High Court found the single publication rule "more appropriate and pragmatic." Depending on which rule is applied, a retweet/repost may or may not amount to a fresh cause of action. The sole exception identified was that a republication would amount to a fresh cause of action if it were publicized to a "different or larger section of the public."
Reasoning adopted In Arvind Kejriwal’s case
At the outset, the Court in Arvind Kejriwal’s case attempted to strike a balance between protecting reputation and the fundamental right of freedom of speech and expression that a user can exercise. Often, public figures and people who hold positions of responsibility are found to have an immense following on social media platforms. Such platforms are “megaphone[s] that amplifies messages and broadcasts them to audience.” This could have disastrous consequences if the content they disseminate harms the reputation of any other person. While one can exercise their freedom of speech to convey and share the information they want through their social media accounts, the right cannot be used as a sword to cut through the digital veil and strike at a person's reputation.
Publication of defamatory content on such platforms by famous personalities has the potential to reach a “global audience” in a matter of seconds, thereby significantly tarnishing one’s image. The Court held that retweeting or reposting defamatory content without a disclaimer would amount to publishing and prima facie attract Section 499 of the Indian Penal Code. A germane factor relevant to this ruling was that the retweet could represent that the content was understood, verified, or believed to be accurate to the people at large.
In adopting this position, the Court has bestowed an obligation on users of social media platforms to act vigilantly and exercise due care before sharing any content. When sharing information without sufficient knowledge about the content’s veracity, a person shuns his responsibility of being a conscientious user. In rendering this judgment, the Court contemplated a scenario where a public figure might create a fake account or ask one of their followers to post defamatory content and retweet it to ensure that it reaches the masses, without legal repercussions. This motivated the Court to cover retweets within the ambit of publication and prevent flagrant violations of defamation laws in India.
Retweets that would land the user in trouble
It is evident from Justice Sharma’s reasoning that she inclines towards the multiple publication rule by holding that every subsequent retweet should be considered "publication" for Section 499. A person with a substantial following would significantly lower the character of another than one with a minimal following. It is essential to analyse if every Indian using social media should be expected to verify every post they share. This strict scrutiny would result in high regulation and imposition of a burdensome duty on all participants of the cyber world. While online defamation must be curbed, we must devise efficient and realistic ways to regulate its dissemination.
Although her judgment is mindful of varying popularity levels and personalities’ influence on social media, liberty has been extended to the complainant to proceed against everyone who retweets defamatory content. Her reasoning is at odds with the position adopted by Justice Sanghi in his 2013 judgment. He espoused the single publication rule while noting an exception that republication, when targeted at a "larger" or a "different" section of the society, would result in a fresh cause of action. While Justice Sharma holds that every person who retweets can potentially be liable for defamation, Justice Sanghi's judgment restricts the number of potential perpetrators by limiting it to those with "different" or "larger" reach in terms of their following.
If Justice Sanghi’s rationale is imported in the case of defamatory retweets, it would secure a two-fold objective: first, reduce frivolous litigation and enhance judicial efficiency by restricting the number of individuals subject to legal proceedings; and second, uphold the right to freedom of speech and expression as enshrined in Article 19(1)(a) of the Constitution of India. We believe it would be more “pragmatic” and fitting to adopt the reasoning of the single publication rule and the exception proposed by Justice Sanghi. This will prevent frivolous lawsuits against the users of social media platforms who are merely exercising their freedom of expression while enabling prosecution against individuals who defame them by reaching a "different" or "larger" audience. Such an approach would also fulfil the purpose of defamation law, which is to prevent reputational harm from prevailing.
In a recent pronouncement, Justice Anand Venkatesh of the Madras High Court opined that a message on a social media platform could have "a very big influence" and that a person should "exercise social responsibility" while forwarding a post. He also stressed the underlying impact of people having a large following who can potentially influence the minds of the general public. It was aptly noted by Justice Venkatesh that “we are now suffering from a virtual information diarrhoea where everyone is bombarded with messages. Hence, what is exchanged as a message in the social media, can have a very big influence within a short time. That is the reason as to why a person must exercise social responsibility while creating or forwarding a message.”
Lastly, Justice Sharma propounded that a retweet or a repost with a disclaimer that “the content has not been verified regarding its correctness/genuineness” might be sufficient not to attract penal provisions of defamation. A mere disclaimer, such as the one contemplated by Justice Sharma, is unlikely to prevent the reputational harm that a single tap from an influential person could cause in a matter of seconds.
The concerns echoed by Justice Sanghi, Justice Venkatesh, and Justice Sharma indicate that with a significant number of followers, comes great responsibility. Besides useful, genuine and exciting information circulated on social media, users are also found to actively engage in gossip, muckraking, fake news and calumnious content. Hence, an inconsequential disclaimer will not address concerns raised in the cyber world and should not be offered as a defence for causing disrepute to others.
The way 'forward'
Although the 2024 judgment of the Delhi High Court marks a foray into an area of law at its nascent stage, the Apex Court’s view on this issue is eagerly awaited. It is crucial to comprehend how the legal principles propounded in these cases would aid in establishing criminal liability for users who reshare or react to defamatory content on Instagram, WhatsApp, Facebook, LinkedIn, and other such platforms. Further, an interesting question arises in the context of WhatsApp forwards, where though chats are private, one can initiate the dissemination of defamatory content by forwarding it to a group of members. All these pertain to several ways in which users engage on these platforms.
Retweets and, in most cases, reshares are seen as a seal of endorsement affixed to the original content. Thus, it is preferable to give due regard to Justice Sanghi’s exception - assuming accountability when content is published by a user intending to reach a distinct or vast audience - instead of suggesting a disclaimer as a defence against prosecution. Adjudicating whether the user intended to reach a "larger" or "different" audience would be for the trial courts to determine until the appropriate changes are reflected in the statute.
The policymakers could clarify and expressly cover defamatory content on the internet by amending the criminal and information technology laws. The law could incorporate the “different or larger reach” exception while defining influencers or “people with large following” in quantifiable terms and list out possible defences that can be pleaded in a court of law. It is hoped that the policymakers proactively tackle this legal issue by amending the law appropriately.
Ankur Singhal and Dhanya S Krishnan are law graduates currently pursuing an LL.M. in Law and Technology from the University of California, Berkeley School of Law.