Limit the Limitless

In an era where a single tweet can spark a viral storm, the boundaries of defamation have become more blurred than ever. The spread of misinformation is no longer a problem limited to the rich and famous; it has seeped into the lives of ‘mango people’ all across. Social media giants enable millions of active users to share their views freely, but they also offer a free-pass for targeting and trolling others, often under the cloak of anonymity. Even our legal profession is not untouched; we have witnessed how unverified posts on LinkedIn have repeatedly marred the long-earned reputations of respected firms. This sentiment was recently echoed by the Delhi High Court in Arvind Kejriwal v. State & Anr. (Crl.M.C. 6347/2019), where the Court, while examining the sheer magnanimity of a tweet or even a retweet, remarked that "now the Cyber World turns Whispers into Symphony."

Some individuals may shrug off defamatory content, while others take steps to mitigate its spread or seek legal redress, leaving courts increasingly burdened with defamation cases arising from social media. This surge has introduced a unique challenge: determining the appropriate territorial jurisdiction in a country where nearly 32.2 per cent of the population is active on social media.

The pervasive nature of social media has complicated the jurisprudence of jurisdictional determinations. General derivates for deciding defamation cases are ‘place of publication’, ‘residence of the parties’, and ‘place of harm.' Such factors are distinguishable and can be easily adjudicated upon, when it comes to defamation of any kind but social media.  Among these, the ‘place of harm’ presents the greatest challenge, given the borderless nature of social media platforms.

Imagine this scenario: Mr. X, a resident of Delhi, tweets defamatory content about ABC Ltd., a company primarily based in Mumbai with a strong reputation there. The tweet goes viral, spreading across the entire nation. The question then arises: does this mean that every court in India could potentially have jurisdiction to adjudicate ABC Ltd.’s case, simply because the harm is felt everywhere? This hypothetical situation highlights the conundrum courts face in the digital age. While social media may appear borderless, it's crucial to establish clear boundaries to determine the proper territorial jurisdiction, ensuring it isn't exploited for tactical advantages.

In traditional defamation cases, jurisdiction is typically determined by either the defamer's place of residence, regardless of where the publication occurred, or by the location of the publication if the complainant has a connection to that area. However, in the context of online defamation, the mere act of a third party reading, accessing, or downloading defamatory material constitutes “publication,” potentially establishing jurisdiction in any forum where such “publication” occurs. 

With the aim to confine jurisdiction-basis publication, Indian courts have developed a reasonable test for mapping jurisdiction, which hinges on “centre of interests." In Escorts Limited vs. Tejpal Singh Sisodia (2019 SCC Online Del 76067), the Court clarified that defamation typically impacts a natural person at their residence and a company at its registered office, which serve as the natural forums for jurisdiction. In such cases, merely alleging publication may suffice to establish jurisdiction. However, if a plaintiff seeks to file in a different forum, they must clearly demonstrate the "centre of interest," explaining the significance of that location to their reputation or the harm suffered there.

In a scenario where a defamatory statement is published on social media targeting a specific community, the question arises: can individuals from different parts of India each file a suit against the defamer? Given that such content impacts the public at large, it could indeed lead to multiple jurisdictions being invoked, making it challenging to limit jurisdiction in these cases. For now, the Supreme Court has proactively addressed this issue by permitting the consolidation of cases filed across different regions, but the question of jurisdiction in such cases remains unresolved.

Notably, several cases have significantly shaped the understanding of jurisdiction in social media defamation in India, contributing to the evolving legal landscape.

In Ajay Pal Sharma v. Udaiveer Singh (2022), the Court addressed a case of cyber defamation where the publication occurred in multiple locations, including the defendant's domicile outside Delhi. The Court concluded that the plaintiff had no choice but to file the suit at the defendant's domicile.

In Google India Pvt. Ltd. v. Visaka Industries (2020), the Supreme Court discussed the responsibilities of intermediaries, highlighting that jurisdiction could extend to any place where defamatory content is accessible and causes harm. On a side note, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, impose obligations on intermediaries, such as the prompt removal of unlawful content and cooperation with law enforcement. Compliance with these regulations by platforms can also influence jurisdictional decisions in defamation cases.

Jurisdiction in social media defamation cases in India is a tightrope walk between age-old legal principles and the rapidly evolving digital landscape. Courts must consider where the content was published, the residence of the parties, and, most importantly, where the harm to reputation is felt. In the authors’ view, where reputations are hit the hardest— or the theory of the 'centre of interest'—should be the touchstone when it comes to digital publication, to ensure that justice is both effectively and fairly served.

About the authors: Tanu Priya Gupta is an Advocate-on-Record, Supreme Court of India and Partner at Sarvagya Legal; and Khushi Sharma is an Associate at Sarvagya Legal.

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