Legal experts divided on whether retweeting defamatory content amounts to defamation

Retweeting defamatory content is also defamation, the court has held

The recent Delhi High Court (HC) judgement holding that retweeting a social media post carrying defamatory content will amount to defamation has left legal experts divided, while a section of experts note that it expands the scope of defamation law, another section noted that it upholds the law.

Senior advocate and former Additional Solicitor General, Sanjay Jain, noted that the heart of defamation in India is the publication of defamatory material. He said, “Needless to say that the publication includes the mode of tweeting or any other mode of publication in cyber space. This obviously would include retweeting.”

On February 5, Arvind Kejriwal in a defamation case. Kejriwal was accused in a criminal defamation case for retweeting an allegedly defamatory video circulated by YouTuber Dhruv Rathee in May 2018. The court, while refusing to quash the order, held, “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.” However, Abhinay Sharma, Managing Partner, ASL Partners noted that the ruling indeed expands the scope of defamation. He said “this ruling of the Delhi High Court expands and clarifies the meaning of ‘publish’ in the definition of defamation. It is clear from the language of Section 499 of IPC (wherein defamation is defined) that any false imputation made or published constitutes defamation, thereby making punishable not just the person making a defamatory statement but also a person who circulates such a defamatory statement.” What was the case about? In 2018, Rathee posted a tweet accusing the founder and operator of a twitter page called ‘I Support Narendra Modi’ of behaving like ‘BJP IT CELL Pat-2’. Kejriwal retweeted this tweet, which led to the founder moving a defamation plea against the CM. The operator alleged that the Chief Minister retweeted without checking its authenticity. A Delhi court issued summons to Kejriwal in the case taking the complaint on board. Kejriwal, however, challenged the summons in DHC contending that the trial court failed to consider that his tweet was not intended or likely to harm the complainant. The DHC refused to quash the summons and held that “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.” HC also noted that (Is there more? If not, delete this line from HC) The Indian Penal Code (IPC), 1860 defines defamation. According to section 499, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes anything concerning another person, intending to harm the reputation of such person, would amount to defamation. Supreme Court lawyer Shashank Agarwal said, “The Delhi CM is being charged for defamation simply on the basis of ‘retweeting’ a certain post which was originally posted by someone else. However, the biggest factor that comes into play is the role of the post that Mr. Kejriwal holds, a post of utmost responsibility of a CM which is supposed to uphold the dignity of its citizens. CM’s retweeting amounted to endorsement of the concerned post which is equivalent to publishing of the said post.” Jain elaborated by stating that retweeting is covered under the existing law on defamation and thus does not expand its scope. He said “In my opinion, even independent of this High Court order, communicating any contents by retweeting would entail the penal provision of the law, in the same manner as the original tweet would have.” Sharma, however, noted that the Delhi HC’s judgement has gone a step ahead and included the concept of ‘abetment’ in defamation. He said, “Abetment in the legal context simply means the act of helping or encouraging someone in carrying out an illegal/unlawful act. In the case of defamation, one way of encouraging defamation is by circulating/resharing defamatory content which has been made punishable by the definition itself.” According to Sharma, introducing abetment has expanded the scope of defamation.">a single judge of the Delhi HC refused to quash summons issued to Delhi Chief Minister Arvind Kejriwal in a defamation case. Kejriwal was accused in a criminal defamation case for retweeting an allegedly defamatory video circulated by YouTuber Dhruv Rathee in May 2018.

The court, while refusing to quash the order, held, “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.”

However, Abhinay Sharma, Managing Partner, ASL Partners noted that the ruling indeed expands the scope of defamation. He said “this ruling of the Delhi High Court expands and clarifies the meaning of ‘publish’ in the definition of defamation. It is clear from the language of Section 499 of IPC (wherein defamation is defined) that any false imputation made or published constitutes defamation, thereby making punishable not just the person making a defamatory statement but also a person who circulates such a defamatory statement.”

What was the case about?

In 2018, Rathee posted a tweet accusing the founder and operator of a twitter page called ‘I Support Narendra Modi’ of behaving like ‘BJP IT CELL Part-2’. Kejriwal retweeted this tweet, which led to the founder moving a defamation plea against the CM. The operator alleged that the Chief Minister retweeted without checking its authenticity.

A Delhi court issued summons to Kejriwal in the case taking the complaint on board. Kejriwal, however, challenged the summons in DHC contending that the trial court failed to consider that his tweet was not intended or likely to harm the complainant.

The Delhi HC refused to quash the summons and held that “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 Indian Penal Code (IPC), 1860 defines defamation. According to section 499, whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes anything concerning another person, intending to harm the reputation of such person, would amount to defamation.

Supreme Court lawyer Shashank Agarwal said, “The Delhi CM is being charged for defamation simply on the basis of ‘retweeting’ a certain post which was originally posted by someone else. However, the biggest factor that comes into play is the role of the post that Mr. Kejriwal holds, a post of utmost responsibility of a CM which is supposed to uphold the dignity of its citizens. CM’s retweeting amounted to endorsement of the concerned post which is equivalent to publishing of the said post.”

Jain elaborated by stating that retweeting is covered under the existing law on defamation and thus does not expand its scope. He said “In my opinion, even independent of this High Court order, communicating any contents by retweeting would entail the penal provision of the law, in the same manner as the original tweet would have.”

Sharma, however, noted that the Delhi HC’s judgement has gone a step ahead and included the concept of ‘abetment’ in defamation. He said, “Abetment in the legal context simply means the act of helping or encouraging someone in carrying out an illegal/unlawful act. In the case of defamation, one way of encouraging defamation is by circulating/resharing defamatory content which has been made punishable by the definition itself.” According to Sharma, introducing abetment has expanded the scope of defamation.