Retweeting defamatory content is “publication” and may invite defamation

In the matter of Arvind Kejriwal vs State and Anr. (Crl. MC. 6347/2019) decided by the Hon’ble High Court of Delhi on 05.02.2024

FACTS: A video was uploaded on YouTube by one Sh. Dhruv Rathee, wherein certain alleged defamatory allegations were made against the complainant. The said video was published by Shri Dhruv Rathee on his twitter account. Petitioner before the High Court, who happens to be the Chief minister of Delhi, re-tweeted the said tweet from his twitter handle.

A complaint under section 499/500 IPC was filed by against Shri Dhruv Rathee and Shri Arvind Kejriwal. A petition under section 482 CrPC was filed before the High Court challenging the summons by Shri Arvind Kejriwal.

ISSUE: Whether ‘retweeting’ by a person, a defamatory content would amount to ‘publication’ or not so as to form the ingredient of Section 499 of IPC for the purpose of summoning of an accused

OBSERVATIONS: That the Hon’ble Court while dealing with the grey area of tweeting and retweeting regarding defamation laws candidly observed that content shared on social-media platforms spreads rapidly and any content involving the reputation of a person would attract considerable harm in case he/she is negatively portrayed on the basis of a content which is scandalous or indictable. Regarding Twitter (now ‘X’) it was observed that it as a platform, serves as a megaphone that amplifies messages and broadcasts them to an extensive audience. It provides the ability to communicate with millions of people at the stroke of a button. It was also observed regarding the concept of publication while traditionally it was associated with printed materials, however the same had to be re-examined in the context of virtual platforms where information could reach to a vast audience in seconds and the legal system should be attuned to the dynamics of social media influence.

On the issue which was for consideration before the Hon’ble Court it was observed that the act of retweeting or reposting would be misused since it is considered to be a vacant grey area of law where the sapling of jurisprudence as to whether retweeting defamatory content will be considered publication or not was yet to take place and in the absence of such people with ill intentions would be encouraged to misuse the vacant field of law and despite retweeting the defamatory content, the accused could thereafter conveniently take a plea that he had merely retweeted a content. A sense of responsibility had to be attached while retweeting content about which one does not have knowledge and in absence of any disclaimer.

The Court while trying to lay down foundational stone on jurisprudence of retweeting, and whether it amounts to publication or not for the purpose of Section 499 of IPC, presented the following scenario:

“Consider an individual, Z, who commands a specific group of followers, who regularly engage with his tweets. Z could potentially evade legal repercussions by instructing one of his followers to post defamatory content or by creating a fake account for the same purpose. Subsequently, the content is re-posted on Z‟s account, garnering a substantial audience. In such a scenario, the crux of the concern lies in the fact that if the law only holds the original author accountable, it creates an avenue for individuals like Z to escape the clutches of law…”

Therefore, the Hon’ble Court was of the view that rigors of Section 499 of IPC would be attracted prima facie in case a person will retweet/repost the alleged defamatory remarks or content, for the purpose of the general public to see, appreciate and believe. The Court also went on to observe that the reach and influence of the person retweeting is also to be taken in consideration as persons with high number of followers retweeting a defamatory content will have much more impact on the Complainant’s reputation than with ones having negligible followers. Thus, it was concluded that it was ultimately for the person so aggrieved to decide as to which retweet caused more harm to his reputation, and inter alia lowered his moral or intellectual character or his credibility among the members of society.

Accordingly, the challenge of the Petitioner to the summoning order was dismissed by the Hon’ble High Court of Delhi

DG-02-2024