Retweeting Defamatory Content Is “Publication", Aggrieved Can Decide Which Retweet Caused More Harm To Reputation: Delhi High Court

The Delhi High Court on Monday ruled that every retweet of defamatory content on social media would amount to “publication” for attracting the offence of defamation under Section 499 of the Indian Penal Code, 1860.

These observations came in a plea for quashing summons issued to CM Arvind Kejriwal, accused of the offence of defamation under Section 499 IPC for retweeting a publication on 'X' (Twitter) by Youtuber Dhruv Rathee wherein Rathee claimed that members of the BJP IT Cell had paid money to a third party to have him defamed. The complaint against Kejriwal had been filed by Vikas Sanskrityayan, founder of the social media page, “I support Narendra Modi.”

Pronouncing the judgment on the aspect of criminal liability attached to the act of retweeting, a single bench of Justice Swarana Kanta Sharma dismissed the plea and said that it is for the aggrieved person to decide which retweet caused more harm to his or her reputation and lowered the moral or intellectual character or credibility among the members of the society. It held:

Additionally, the bench held that in this case, the large social media following of a Chief Minister of a State implies a wider reach and makes any retweet a form of “public endorsement or acknowledgement.”

It added that the original author of the alleged defamatory content will also be liable for any action if a complaint is filed against him. However, it is the choice of the complainant, who may decide whether the person who retweeted such content had caused him more damage or not, since he had more friends or followers, by sharing content.

Furthermore, it said that if defamatory content is retweeted by an individual with negligible followers or very limited influence, the impact on the complainant's reputation may be less severe to fall within the ambit of the offence of defamation, due to the limited or negligible reach.

The court said that it would be a matter of trial as to whether a person's retweet of defamatory content, with a following of ten persons or zero persons, would be sufficient to attract action for the offence of defamation.

“Therefore, the social media reach as well as the social and political standing of the person, retweeting the defamatory imputation, is of great relevance. If a public figure with millions of followers retweets any defamatory content, the impact on the aggrieved person‟ 's reputation and his character will be much greater, since the larger audience and the influence wielded by a public figure would amplify the spread and longevity of the defamatory content,” the court said.

It added that such a person's influence may also make his audience believe the defamatory content to be true, thereby lowering the reputation of the aggrieved person.

Difficult To Erase Reputational Injury From Public Memory

The court said it is difficult to erase the reputational injury from public memory, as the tweets may be deleted but perceptions are difficult to delete from the minds of the community.

“This Court, thus, for the purpose of adjudicating the present case, holds that retweeting a content, which is allegedly defamatory, on the Twitter account and projecting it to be as if his own views, will prima facie attract the liability under Section 499 of IPC, for the purpose of issuance of summons,” it said.

It added that as a leader with political standing and maturity, Kejriwal is presumed to be aware of the potential impact of his actions, including retweets, on the public perception.

“When a public figure, particularly one with a political standing, tweets or retweets a defamatory post, the stakes and repercussions escalate given the broader implications on society. The audience, therefore, becomes the citizenry at large, whose opinions and decisions may be influenced by the information they consume, including defamatory statements published on social media,” the court said.

Wide Ramifications Of Retweets By Public Figures

It added that the argument of mere retweeting without harmful intent has to be weighed against a public figure's duty to exercise due diligence and care in disseminating information on social media platforms.

Justice Sharma further held that when a public figure tweets a defamatory post, the ramifications extend far beyond a mere whisper in someone's ears and thus, a sense of responsibility has to be attached while retweeting content about which one does not have knowledge.

“In case, the act of retweeting or reposting is allowed to be misused since it is still 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 is yet to take place, it will encourage people with ill intentions to misuse this vacant field of law and therefore, despite retweeting the defamatory content, the accused can thereafter conveniently take a plea that he had merely retweeted a content. In case reputational injury is caused by defaming a person, the person doing so by retweeting must attract penal, civil or tort action against him in absence of any disclaimer,"  the court concluded.

Counsel for Petitioner: Mr. Manish Vashishth, Senior Advocate with Mr. Karan Sharma, Mr. Rishabh Sharma, Mr. Vedanth Vashishth, Mohd. Irshad & Ms. Harshita Nathrani, Advocates

Counsel for Respondents: Mr. Manoj Pant, APP for the State; Mr. Raghav Awasthi, Mr. Kunal Tiwari and Mukesh Sharma, Advocates for respondent No.2

Title: ARVIND KEJRIWAL v. STATE & ANR

Citation: 2024 LiveLaw (Del) 136

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