The courts are wary of entertaining anonymous accusations: Neeraj Kishan Kaul

On 18 September, following a civil defamation case by Indian artist Subodh Gupta, the Delhi high court instructed Google and Facebook—which owns Instagram—to remove links that mention Gupta’s name in connection with #MeToo allegations. The court also directed Instagram to provide the identity of the person/entity running the Instagram handle @sceneandherd, which had first published allegations against Gupta in December 2018, in a sealed envelope by 18 November.

In the ex parte injunction (which is granted without hearing the opposite party), the court said the defamatory contents “cannot be permitted to be made in public domain" and “published without being backed by legal recourse".

Gupta is within his rights to contest the sexual harassment claims. At the same time, the developments challenge the broader principles and mood of the #MeToo movement. On 2 October, a group of artists and art workers issued a statement condemning Gupta’s defamation suit, calling it an “outright move to silence the survivors and gag the platform that gave them a voice".

This is the second high-profile case in Indian courts after former Union minister of state M.J. Akbar’s criminal defamation suit against journalist and Lounge columnist Priya Ramani. While the purpose of a criminal defamation proceeding is to attribute guilt and consequent punishment in the event of such finding of guilt, the purpose of a civil defamation proceeding is “to prevent publication of defamatory content and to provide for general/compensatory damages", says senior advocate and former additional solicitor general Neeraj Kishan Kaul, adding that the standard of proof in a case of criminal defamation is higher than in the case of civil defamation.

As the Indian legal system is still coming to grips with addressing #MeToo, Kaul sheds light on the legal ramifications of Gupta’s case, in this emailed explainer. Edited excerpts:

The Delhi high court has ordered Instagram to reveal the identity of the administrators of the account which carried sexual harassment allegations against Gupta a year ago in a “sealed envelope". Can you tell us more about its legal precedents?

At the outset I must fairly state that the matters being sub-judice, the comments are limited to the general principles of law, without going into the individual merits and demerits of the respective cases, and without expressing any opinion on the particular facts and circumstances of the said cases and the orders passed therein.

Further, let me preface the comments by stating that the various facets involved in such cases deserve to be dealt with sensitively and delicately. It is imperative to understand that no form of sexual harassment can be tolerated or condoned in a civilized society and such act, if proved, deserves to be dealt with in the strictest manner possible as per law; equally the right of reputation as a facet of the right to life under Article 21 of the Constitution of India must also not be lost sight of and irresponsible and false allegations must not be permitted to ruin the reputation of an individual built by such person over the course of a lifetime. The courts in India have for time immemorial recognized that reputation is an integral part of the dignity of the individual.

The courts in India, especially the Supreme Court and the high court, have wide-ranging powers to mould reliefs and issue directions in a manner that may be necessary in the facts and circumstances of each case. The courts are also alive to the competing rights and interests of the parties, particularly at the interim stages of the proceedings before the court. The concept of seeking information and/or documents in “sealed envelope" has been employed by courts in varied cases, wherever the court is of the opinion that the content being sought must first be examined by the court, before a decision is taken to reveal the same to the parties or are brought on record in the course of the proceedings. Sealed envelopes are an effective mechanism for the courts to balance the necessity for such information for effective decision making, while preventing any unwarranted disclosures.

The court has also ordered Facebook and Google to take down web pages that show the content which Gupta alleged was defamatory. What are the precedents for this order in India?

The courts in India have time and again emphasized that the right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution is subject to reasonable restrictions under Article 19(2) of the Constitution. One of the reasonable restrictions under Article 19(2) is in relation to laws regarding defamation. The Information Technology Act, 2000, under Section 79, incorporates the safe harbour principle qua intermediary liability. The provision was challenged before the Supreme Court in the case of Shreya Singhal v Union Of India, where the apex court in its landmark judgement in 2015 read down Section 79 of the IT Act as well as Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011 and held that the requirement for an intermediary to take down the content has to be read to mean either an intimation in the form of a court order or on being notified by the government. Importantly, such requests must be restricted to the limitations listed by Article 19(2) of the Constitution.

Based on the facts and circumstances of each case, the courts in India have passed interim as well as final orders, directing intermediaries to take down content which appears to be defamatory, or infringing the intellectual property rights of individuals, companies, etc. A recent example of such an order could be found in cases such as the Zulfiqar Ahman Khan case wherein the Delhi high court in case of anonymous complaints, after the original posts had been taken down, further restrained re-publication of the same and passed directions for the order to be brought to the notice of the print and electronic platforms for takedown of the defamatory material alleged in that case. A similar order of takedown was passed by the Delhi high court in another matter where the accused in a sexual harassment case had sought restraint against the accuser from airing her allegations on social media or any other platform. In the said case, in order to protect the parties, the court had further directed both sides to refrain from making comments on the issue or disclosing the identities of those involved on social media. Similar instances of takedown orders to protect the reputation of a company with respect to quality of goods can be found in the case of PepsiCo. as also in the case of EbixCash & Viceroy concerning defamatory content that was alleged to have an adverse effect on the value of the company. The position varies globally from jurisdiction to jurisdiction, however the underlying principle of the power of the court to issue takedown orders in the facts and circumstances of each case is more or less similar to that in India.

Neeraj Kishan Kaul

Could you elaborate on the principles governing the grant of damages sought in civil defamation suits?

Defamation occurs if a person deliberately makes a comment or publishes or imputes anything against another person by which the reputation of the person is likely to be injured. In civil defamation suits, the onus to prove defamation and consequent damages is on the plaintiff. However, unlike ordinary suits, in a civil defamation suit, once the plaintiff has discharged his initial burden, the burden to prove the defence of justification, truth, fair comment, absolute privilege, etc., lies on the defendant. In the event that the plaintiff is able to satisfy the court on defamation, the damages are to be proved by the plaintiff, and the same can be granted by the court keeping in mind factors such as (a) nature and gravity of allegations; (b) the reach of the circulation; (c) the extent and nature of the plaintiff’s reputation; (d) the effect of publication on the reputation of the person defamed; (e) the conduct of the parties, etc. Damages can also be broadly classified into two categories viz. general and special damages. General damages ordinarily arise by inference of law and are presumed to be the probable consequences of the publication and/or defendant’s conduct. On the other hand, special damages are required to be pleaded and evidence is required to be led at trial to prove the same. Damages are usually a measure of compensation for legal injury suffered by the plaintiff.

How has the Indian legal system traditionally viewed anonymous accusations?

The Indian legal system is largely an adversarial legal system wherein the court relies upon the opposing parties placing the true and correct facts and circumstances before the court, to enable the court to adjudicate upon the dispute between the parties. As such, barring extraordinary cases, such as cases of immense public interest where the courts may take suo motu cognizance, it is imperative in the Indian legal system for the parties to be identifiable before the court. Further, in criminal jurisprudence, it is a fundamental premise that a person accused of any act or omission has a right to confront the accuser. As such, the courts are wary of entertaining anonymous accusations, also on account of the difficulties reliability, credibility and veracity of such accusations, which may be difficult to prove in a trial. In fact, even with respect to public interest litigations and the courts entertaining anonymous letters for initiation of criminal investigations, the apex court in the case of Divine Retreat Centre in 2008 has re-emphasized the need for a bona-fide litigant.

How can handles reporting on #MeToo safeguard themselves?

The media has an important role to play in any vibrant democracy, more so in a country like India. In the context of the duty of journalists qua publishing and reporting, the courts in India have repeatedly held that it is the duty of journalists only to publish complaints which they are satisfied are true, as publishing of complaints of a defamatory nature which are not true may make them liable for consequences. Further, the publication of information by journalists and in the media have larger ramifications than utterances by individuals as they are more likely to be believed by the public. Accordingly, it has been held that the element of responsibility is relatively higher for journalists and for publication in media. The same principles would ordinarily apply to handles reporting on #MeToo. Care must be taken to ascertain the veracity and correctness of a complaint before reporting thereon, as false reporting can attract both penal and civil consequences in law. It is settled law that mere belief of the printer, publisher or reporter that the publication or report is correct would not be a defence unless it is shown that due care and caution was exercised before such publication or reporting. It has further been held that it is no defence against defamation that the report had appeared elsewhere, as every repetition of a defamatory publication or statement is an individual defamation answerable by the person making such publication or report.