Criminal defamation based on number of followers: Where do we draw the line after the Delhi High Court ruling?

The Delhi High Court recently held that a retweet of a defamatory post amounts to publication and attracts criminal liability, potentially paving way for far-reaching consequences.

In an unprecedented ruling in Arvind Kejriwal v. State & Anr, the adjudication was based on a retweet and not on the original publication of the author. The Court carved out a distinction on the basis of the influence a public figure with greater traction can wield on social media, as opposed to someone with limited followers.

The question that now arises is where does one draw the line when it comes to attaching liability of criminal defamation in view of the nature and degree of a person's influence online? Also to be explored is the far-reaching impact the verdict may have when it comes to sharing of content on social media platforms.

Dichotomy of the ruling

This is the first time that a ruling under criminal defamation has fastened liability to a person who retweets or republishes.

The Court said that 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 content.

“If a public figure with a 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 stated.

On the other hand, the judgment underlined the “less severe” or non-defamatory nature of impact of a defamatory imputation when retweeted by an “individual with negligible followers or very limited influence”.

“If a defamatory imputation is retweeted by an individual with negligible followers or very limited influence, the impact on the complainant's reputation may be less severe or may not even be of a nature to fall within the ambit of offence of defamation."

It clarified that if such a situation arises, it will be matter of trial to determine whether a person with 10 or less followers retweeting or reposting defamatory content can be liable for criminal defamation under Section 499 of the Indian Penal Code.

Distinction between platform and originator; disclaimer as a protective shield

Senior Advocate Sajan Poovayya, who has been dealing with cases in the technology space for over two decades, pointed out another significant outcome of the judgment, although the Court did not spell it out explicitly. 

The verdict, Poovayya said, inherently carved out a reasonable distinction between the originator and the platform, as it did not attribute the same protections available to a platform to the originator. 

“Secondly, I think this is a judgment of far-reaching import, particularly because it is under criminal jurisprudence. This is for the first time that there is clarity, which is brought in, in terms of the liability of a person who retweets or republishes,” he said.

It is worth noting that the High Court said that a disclaimer can be used as a protective shield from action for defamatory tweets.

Paragraph 63 of the High Court’s judgment held that retweeting or reposting of defamatory content without a disclaimer - whether a person agrees or disagrees with or verifies the content in question to their followers will amount to republishing the original defamatory content.

Poovayya noted that in a case of a retweet, the originator is actually somebody else, and the person retweeting becomes the publisher. 

“Therefore, to that extent, I think Justice Sharma has made a distinction saying that if you simply retweet then the assumption is that you have looked at the content, you agree with the content, and therefore you are disseminating it to the public,” he added.

Subjectivity leads to uncertainty

However, Poovayya has his reservations on the subjectivity of the ruling.

“Where do you draw the line? I understand an easy example will be that someone has 10 followers, but someone else has 1 million followers. The distinction in that scenario is understandable. But what if somebody has 100 followers, who actually are opinion leaders and thought leaders themselves? Whereas someone else has a 1,000 followers, but those followers are not of any significance in the community? Do you still apply the numerical rule and attribute liability upon the retweeter who has more number of followers?” he argued.

The senior lawyer, therefore, believes although the judgment has brought clarity on disclaimers and retweets, there remains a subjective element and consequent uncertainty based on the number of followers and the impact of the retweet. 

“I think this vagueness leads to some amount of uncertainty in the regulatory framework, and that will have a chilling effect on free speech. In case of criminal liability, it is very important to eliminate vagueness," he added.

According to Poovayya, there should be a clear-cut rendition in terms of what the liabilities are.

"'Thus far and no further’ should be clearly described. If you go forward, there is penalty and If you don't, there is no penalty. That line ought not to be smudged. The Rubicon must be very clear in criminal law," he said.

While the Delhi High Court verdict brings clarity on who will become a publisher and why having more followers is an important factor, when it comes to defamation, experts such as Poovayya voice concerns over the "subjective element" that has been brought about.

The Senior Advocate is also in favour of doing away with the concept of criminal defamation, opining that it should only be a civil wrong.

"I am a hardcore free speech proponent. I'm a firm believer that in modern times of technology and information revolution, to de-criminalize defamation is the need of the hour. It must be a matter amenable to civil remedies alone," he said.