Compelling to Reveal Identity May Harm The Whistleblowers of Sexual Violence': FB Challenges Order In Subodh Gupta Case

Facebook has moved an application before the Delhi High Court seeking modification of interim order of the Single Bench wherein it was asked to reveal the person behind the Instagram handle 'Herdsceneand'.

On September 18, the Single Bench of Justice Endlaw had passed an ex-parte interim order in a suit filed by Subodh Gupta seeking removal of the allegedly defamatory content made against him on an Instagram handle.

The Instagram handle 'Herdsceneand' had posted a series of posts wherein women had shared their instances of sexual harassment allegedly committed by artist Subodh Gupta.

In that order, Justice Endlaw had directed the removal of the defamatory content and blocking of the URLs mentioned therein. Further, Instagram LLC was directed to produce the identity of the person behind the said Instagram handle.

On September 30, when it was informed to the court that Facebook is the relevant data controller for the Instagram services in India, the court had directed Facebook to:

'furnish to this court in a sealed cover envelope the particulars of the person behind the Instagram account Herdsceneand.'

Facebook has said that it should not be compelled the said information, as at this stage of the proceedings, it would be wrong to assume that the contested content was disseminated with an intent to cause mischief; especially when such content deals with the matter of great public importance - sexual harassment.

Facebook, therefore, seeks the modification of the said interim order on the following grounds:

compliance with the order would lead to violation of fundamental right of privacy of both the person running the account but also of all those women who shared their stories of sexual harassment

compelling to share identity might lead to intimidation, retaliation and order forms of harm against the account holder and other potential victims of sexual harassment

such direction would chill lawful speech and expression, dissuading not only sexual harassment victims from sharing their experiences in future, but also whistleblowers from reporting such unlawful acts

balance of convenience lies against the production of identity since it risks exposing the said person to significant harm, whereas plaintiff's interests have been adequately protected by having the contested content actioned.

The application also submits that the fundamental right to privacy, as upheld by the Supreme Court in KS Puttaswamy v. Union of India also includes the right to communicate anonymously on the internet, and the same must be protected.

The aforementioned principles is also enshrined in the UN Human Rights Council's Report on the Promotion and Protection of the Right to Freedom of Opinion and Expression.

It is also submitted that the proportionality principle, as laid down in the Puttaswamy case, doesn't get established here in exposing the identity of the account holder to significant harm, considering that the sensitive nature of the sexual harassment claims.

Finally, the application goes on to submit that the victims of sexual harassment who show the courage of speaking out for public good to show should be entitled to the same protection which is granted to political whistleblowers under the Whistleblowers Protection Act, 2014.