Retweeting does not Extenuate Defamation

Technology has, without doubt, brought immeasurable relief to humanity but at the same time it has also brought along the store of difficulties and embarrassment if that is not used judiciously. Thanks to technology one can get information from one end of the globe to the other in a few seconds, but it can also cause incalculable damage if used maliciously. Vicious propaganda can be made viral by re-tweeting and sharing of the message emanating from an unscrupulous person.

In a recent case of defamation filed by the Union Finance Minister Arun Jaitley against the present Chief Minister of Delhi and others, the Delhi High Court and the Supreme Court of India have refused to differentiate between the Tweet and Retweet. However, the both Constitutional Courts have not spoken a word about the merit of the case, which has been left entirely to the Trial Court to decide. The factual matrix of the case is that Mr Kejriwal had accused that the Union Finance Minister Arun Jaitley of indulging into corruption as the President of the Delhi and District Cricket Association (DDCA), a post that he held from 2010 to 2013. Mr Arun Jaitley in his complaint case alleged that the accused persons defamed him by saying that the ‘CBI raided the office of the Chief Minister at the instance of Mr Jaitley to locate files related to corruption in DDCA. The name of the Finance Minister Arun Jaitley figured in those files as he was in dock and I was about to order a commission of enquiry.’

‘Why Jaitley Ji so scared of DDCA probe? What is his role in the DDCA Scam’, says another Tweet of Kejriwal. He made many tweets like, ‘Arun Jaitley had shielded the Delhi and District Cricket Association (DDCA) for over 15 years. There’s corruption worth several hundred crores that has taken place under the very nose of the Finance Minister’. The allegations, against Sh. Jaitley are very serious. He should either resign or be removed to enable independent enquiry.’ ‘if Jaitley was let off without investigation, on the same basis 2G accused should also be let off. Can Jaitley’s denial in press be taken as gospel truth? These are very serious allegations against him. Why is he running away from investigation?’ Jaitley is the Suresh Kalmadi of BJP’ or ‘Bhakton ka naya naara apna Arun Kamaoo nikla, Kalmadi ka tau nikla”. etc.

These were retweeted by Raghav Bahl, an Aam Aadmi Party leader. The Trial Court issued summons to him under section 499 of the Indian Penal Code for defamation. Mr Bahl approached the Delhi High Court for quashing the summoning by the Trial Court, which was dismissed. He then approached the Supreme Court of India on the ground that he merely retweeted, which cannot be the defamation. The Supreme Court also dismissed the petition by saying that a person, who retweets cannot a be oblivious to the content of the tweets.

Mr Arun Jaitley in his complaint said that accused persons individually and collectively undertook a false, malicious and defamatory campaign against him and his family members from an unrelated act of a search conducted during an investigation by Central Bureau of Investigation in the Secretariat of the Govt. of NCT of Delhi. The plea that was taken by Mr Raghav Bahl was that all the communications allegedly made by him were in electronic form, solely covered by the Information and Technology Act, 2000 and not by Section 499 of the Indian Penal Code. Moreover, ‘retweet’ did not amount to publication for the purpose of Section 499 IPC and therefore he had been wrongly summoned under Section 34 of the IPC.

On the other hand, the counsel for Mr. Jaitley argued that ‘retweeting falls within the ambit of Section 499 IPC by virtue of it being a fresh representation and publication of the original defamatory comment by repeating and endorsing it publicly; that striking down of Section 66A of the IT Act does not affect the right of an aggrieved person who has been defamed and can avail the remedy provided under the provisions of Section 499/500 IPC; that the summoning order against the present petitioner is not restricted to ‘retweets’ only as they amounted to the defamatory imputations.

The High Court ruled that it is well-nigh settled that the inherent powers being extraordinary in character to demand great caution which ought to be exercised sparingly to achieve the underlying object of Section 482Cr.P.C. The High Court, therefore, performs a tripartite function whilst invoking inherent powers under Section 482 Cr.P.C., which includes: firstly, giving effect to the orders passed under the Code; secondly, preventing the abuse of the process of the Court and thirdly, securing the ends of justice. The Court cannot embark upon weighing the evidence and arriving at any conclusion to hold, whether or not the allegations made in the complaint shall constitute an offence under Section 499 IPC punishable under Section 500 of IPC. It is a settled legal principle that the complaint has to be read as a whole in order to determine whether the allegations contrived therein are prima facie sufficient to constitute an offence under Section 499 IPC, triable by a Magistrate.

The counsel for Mr Jaitley argued that the fact that Section 66A of the IT Act has been struck down does not affect the right of an aggrieved person who has been defamed and therefore, will continue to have access to the provision of Sections 499/500 IPC. The next argument of Mr Bahl is that the petitioner has only retweeted the contents of the tweet of the other co-accused and mere sharing of a tweet does not amount to Publication. which is an essential ingredient of criminal defamation; that the petitioner cannot be charged under Section 34 of the IPC as he retweeted much after the original tweet of Mr Kejriwal and that too not in furtherance of the original tweet; that unlike linking or adding unrelated content or making changes it does not add any substantive material related to the alleged defamatory material. The Counsel reiterated that the retweet is mere sharing of the original tweet which does not amount to publication.

On the other hand, the counsel for Mr Jaitley said that ‘The Indian Penal Code makes no exception in favour of the second or third publication as compared with the first, and such an exception would obviously be made a means of defeating the principal provision of the law of defamation. In England it is not allowed to a defendant to prove that a statement, similar to the one for which he is indicted, has been previously published by persons who have not been prosecuted; and the repetition of a common rumour, however prevalent is not received as an excuse for its further promulgation.’

The High Court observed that Twitter is an online global message broadcasting platform wherein people create, discover and distribute content. This content is in the form of an alphanumeric message comprising of maximum 140 characters in length and is known as ‘Tweet’. Anyone with a valid e-mail id can sign-up on this platform and indulge himself/herself into engaging in conversation with others on the platform via the medium of ‘Tweets’. These ‘Tweets’ are visible to anyone who visits the profile of the creator of that ‘Tweet’. Further, a user who wants to see the ‘Tweets’ of a particular person in his ‘Twitter Timeline’, which is a personalised ongoing stream of ‘Tweets’, can follow that particular person. In this way, the ‘Tweets’ of that particular person can be seen without making an effort of opening the profile of the particular person to see his/her ‘Tweets’. Further, the platform offers a feature known as ‘Retweet’, which the platform claims, the user can use for re-posting of a ‘Tweet’ to share that ‘Tweet’ with their followers quickly. A retweet, in essence, brings the contents of the original tweet into the immediate attention of the followers of the user who retweets.

Therefore, the High Court ruled that retweeting amounts to be sharing. The summoning order of the Trial Court was upheld as there was no infirmity in its order. Whether retweeting would attract the liability under Section 499 IPC is a question which requires being determined in the totality of the circumstances and the same will have to be determined during trial. This emphatic assertion of the Delhi High Court and the Supreme Court has made it abundantly clear that those who make elaborate use of the modern technology must be circumspect to from landing into unnecessary litigation.