People Have Right To Know Who The Elected Representative Is Meeting Behind Closed Doors: Delhi HC Dismisses Sasikala Pushpa's Suit Against Facebook, YouTube

People have a right to know with whom their electoral representative is meeting behind closed doors and hobnobbing with, the Delhi High Court held on Tuesday.

The observation by the High Court came while dismissing with cost a plea by erstwhile AIADMK leader Sasikala Pushpa that her image was being tarnished due to uploading of her allegedly morphed photos and videos with a man, other than her husband, on social media platforms.

"Since the plaintiff was a political person representing her State i.e. Tamil Nadu, in Rajya Sabha in Delhi, whether not the photographs concerning her which are admittedly not obscene but are claimed to be defamatory and showing her in the company of her political rival, constituted information which public at large has a right to know about their representatives in Parliament and how can the Court restrain such news from being disseminated", the Court had enquired from the plaintiff.

A suit was instituted in 2016 against (i) Facebook Inc., (ii) Google LLC, (iii) YouTube LLC, (iv) Union of India, Ministry of Information and Broadcasting, and (v) Union of India, Department of Telecommunications, for (a) permanent injunction restraining not only the defendants but other persons from publishing, broadcasting, distributing or disseminating in any form whatsoever any defamatory material ―including the purported photographs/video/audio messages, relating to or arising from, in connection with any alleged acts or behaviour relatable to the plaintiff; and, (b) mandatory injunction directing the defendants and all others to remove/delete the false, concocted and fabricated photographs/videos/audio messages or any other material aforesaid.

"The plaintiff has not made out a case for putting her claim, of the impugned photographs being morphed, forged and fabricated, to trial...(Alternatively), Section 66-A of the IT Act was struck down in entirety, being violative of Article 19(1)(a) of the Constitution of India and not saved under Article 19(2). It thus follows that merely because any information on the internet is offensive or causes announce, inconvenience, danger etc. to a person does not entitle that person to call upon the intermediary to remove that information/content or to disable access thereto and the intermediary is not liable to do so", opined the bench.

The judgment narrates that the plaintiff along with the plaint has only filed four photographs in a sealed envelope. The first photograph appeared to be from a newspaper or a click shot of a news channel, in turn having three photo frames and one of which is of the plaintiff alone and the other two besides the plaintiff also depict a man in what appears to be a private garden of a house. The second photograph is again of the plaintiff with the said man inside a room and also shows half eaten food and an empty bottle of water. The third photograph is a repeat of one of the three frames in the first photograph. The fourth photograph is of the said man sitting on a chair and holding a cell phone with the plaintiff bending behind him and pointing something in the phone, again in a private garden of a house. "I may mention that none of the said photographs would classify as obscene or showing the plaintiff and the man in any compromising or scandalising position, though indeed show both smiling and happy in the company of each other", observed the Single Judge. "At least in one of the frames of the first photograph, the plaintiff and the man appear to be posing for the photograph though other photographs may fall in the genre of those taken without the knowledge of the plaintiff and the man. I may clarify that the plaintiff is fully clothed in all the photographs and the man, in two of the frames of the first photograph is bare chest but which is nothing out of ordinary in the State to which the plaintiff belongs", the Court further remarked.

The Single Bench iterated that it was further informed, though again not pleaded, that the man shown in the photographs along with the plaintiff belongs to DMK Party, a political rival of AIADMK Party to which the plaintiff belongs and is a member of; that the plaintiff is married to another person, and that though the photographs did not qualify as obscene but they were in the circumstances of the political rivalry and the plaintiff being married to another man, qualify as defamatory and pose a threat to the membership of the plaintiff of Rajya Sabha as a nominee of AIADMK.

"It was contended that the photographs were not genuine. Alternatively, it was argued that the photographs even if were held to be genuine and taken with the consent of the plaintiff, uploading thereof on the social media platforms violated the privacy of the plaintiff", reads the judgment.

The bench proceeded to comment that the factum of the plaintiff belonging to AIADMK Party, a regional political party of the State of Tamil Nadu and though as per own averments is widely known in the State of Tamil Nadu in comparison to Delhi, having instituted this suit not in Tamil Nadu where the plaintiff has a reputation but in Delhi where the plaintiff does not enjoy the reputation as claimed to be enjoyed by her in Tamil Nadu also shows an attempt of the plaintiff to not allow the subject litigation itself to become news in Tamil Nadu and to surreptitiously obtain the order for removal of undesirable content from the internet.

Besides, it attracted the attention of the judge that the plaintiff responded in the negative when it was enquired whether not the said man who also figured in the photographs was a necessary party to the present suit, and whether not the man shown in the photographs had an equal stake in removal or not wanting removal of the photographs and how could this Court direct removal equivalent to obliteration of photographs showing persons other than the plaintiff, without hearing the said person/s.

Conclusions of the Court

The bench framed the following questions for adjudication-

(A) Whether the suit is entitled to be put to trial on the plea of the plaintiff, of the four photographs aforesaid, as well as other photographs verbally argued to have been put on the internet, being not genuine and being morphed, forged and fabricated; and,

(B) If the above question is answered in favour of the plaintiff, whether the claim of the plaintiff against the defendants, for removal of the said photographs from the internet and/or for blocking of the access to the said photographs is required to be put to trial.

"I hold the plaintiff to be failing in both the questions above", held the Judge, explaining the reasons therefor as under-

(I) "As far as the claim of the plaintiff, of the impugned photographs showing the plaintiff with a man, having been morphed, forged and fabricated is concerned, the same, on a reading of the plaint is found to be half-hearted, vague and without the requisite particulars", reflected the bench. It was noted that there is not a whisper in the plaint of what is argued. "Once the plaintiff has described herself as a politician and an elected representative of the people i.e. a public persona, mere presence of a man, even if other than the husband of the plaintiff, alongside the plaintiff in photographs, can by no standard of a reasonable person be said to be defamatory of the plaintiff, as the plaintiff in the course of her political journey is bound to come in contact not only with women but also men. Thus, the photographs of the plaintiff, I repeat, a politician, with a man other than husband, can by any stretch of imagination be considered by any person of average intellect and moral standard, to be lowering the esteem in which the plaintiff is held or as tarnishing the image of the plaintiff", it was concluded.

(II) "Had the photographs been morphed / fabricated, the plaintiff would have pleaded the identity of the person, described the reason for the plaintiff and the said man being together in a house, given the address of the house depicted in the photographs, pleaded that others also were present on the occasion and who had been deleted from the photographs or pleaded that the plaintiff had never met the said man or that the face of the man had been placed on the body of another man, in the photographs or that the body of the female shown in the photographs was not hers and only her face had been added on body of some other woman or given such like particulars", expounded the Court, continuing to add that the plaintiff has not pleaded any such thing, and rather, while invoking the territorial jurisdiction of this Court, it is pleaded that the house shown in the photographs was the plaintiff's residence at Delhi.

(III) "Not only are the pleas of the photographs being morphed vague as aforesaid but the half-hearted nature thereof is also evident from the alternative plea of the plaintiff, of the same even if genuine, being liable to be removed / blocked for the reason of being defamatory of the plaintiff and which aspect will be discussed hereunder", stated the bench.

(IV) The bench found another reason for which the claim of the plaintiff of the photographs being morphed, forged and fabricated does not deserve to be put to trial i.e. the reason of non-joinder of necessary parties. The plaintiff has instituted the suit only against Facebook Inc., Google LLC and YouTube LLC which are but the electronic platforms on which the photographs has been uploaded and who as per the pleas in the written statement are intermediaries / search engine within the meaning of Section 2(1)(w) of the IT Act and of which pleas in their written statement, there is no denial neither by filing a replication nor during the hearing. For a plaintiff to succeed on a plea of morphing, forgery or fabrication of photographs, the alleged forger / fabricator or the person who has morphed the photographs, is necessary party and without the said person, no finding of the photographs being morphed, forged and fabricated can be returned.

(V) The counsel for the plaintiff stated that the person who morphed, forged and fabricated the photographs was not impleaded because his/her identity was not known. Upon being reminded that the law provides a recourse thereto by impleading the unknown person as John Doe / Ashok Kumar and by seeking disclosure of identity thereof from the electronic platforms, it was stated that the steps in that regard will be taken but nothing wss done in this direction. "It is not the function of the Court to make out a case for the plaintiff", said the judge.

(VI) "Ordinarily if the photographs showing the plaintiff with a man, according to the plaintiff had been morphed, forged and fabricated and the plaintiff was suing for relief on the said basis, the first person to be impleaded would have been the subject man inasmuch as it is that man only who was best in a position to comment on the genuineness of the photographs", the bench observed. It remarked that from the failure/refusal of the plaintiff to implead the said man as defendant to the suit, adverse inference arises against the plaintiff i.e. that the plea of the plaintiff, of the photographs showing her with the said man are morphed, forged and fabricated, is untrue and false.

(VII) As to whether the plaintiff alone is entitled to seek the relief of removal from an electronic platform and/or obstruction of the access thereto of a photograph, even if genuine, showing the plaintiff with another man, the judge was of the view that the said another is a necessary and proper party, inasmuch as obliteration of the content affects the rights of said another also. "It is not the case of the plaintiff that the plaintiff had agreed to being photographed with the said man on the condition that the said photograph will not be published. It is also not the case that the photographs were surreptitiously taken without the consent of the plaintiff. Rather, it is also not the case that the photographs are of the private life of the plaintiff", expressed the bench, adding that without making out any case, the Court has been approached on the premise that any content on the internet pertaining to the plaintiff is removable at the asking of the plaintiff.

(VIII) The court noted that Section 66-A of the IT Act was struck down in entirety, being violative of Article 19(1)(a) of the Constitution of India and not saved under Article 19(2). "It thus follows that merely because any information on the internet is offensive or causes announce, inconvenience, danger etc. to a person does not entitle that person to call upon the intermediary to remove that information/content or to disable access thereto and the intermediary is not liable to do so", opined the bench.

(IX) The judgment reads that it was only during the hearing that the reason why the said photographs are perceived to be tarnishing her, image and defaming her have been disclosed i.e. of the plaintiff being married to another man and the man shown in the photographs belonging to a rival political party. However, the said disclosure during the hearing cannot take the place of a pleading and thus it was held that the plea of defamation, in the context and facts concerning the plaintiff, is vague and without any particulars.

(X)However, even if what is disclosed in the arguments were to be considered, the photographs cannot be said to be violating the privacy of the plaintiff or defamatory of the plaintiff. "...this Court is required to balance the right claimed by the plaintiff of privacy qua whom she meets at her residence, has to be balanced with the right of the public to know the identity of the person whom the plaintiff meets and hobnobs with, behind closed doors", articulated the bench.

(XI) Finally, the Single Judge proceeded to observe that the plaintiff, as a representative of people and whether performing executive function or functions as a Legislator, would be issuing orders / directions and/or participate in law making, regulating the conduct of human beings and in the said context the electorate has a right to know of the behind curtains meetings of the plaintiff with a man other than her husband and particularly a man belonging to a political party which the plaintiff, before the public criticises or opposes in the elections. If such meetings with member of a rival political party, which the plaintiff wants to remain hidden from the public, are not of interest to the public for the purposes of maintaining purity of administration and law making, little else would qualify as of public interest. The plaintiff, of course cannot be permitted to publicly oppose and criticise a political party to whose members she is otherwise close. Or, at least public has an interest in knowing the true state of affairs. "For the said balancing act, no trial is required", it was declared.

The Court found the plaintiff to not be entitled to any order against Facebook Inc., Google LLC and YouTube LLC to remove the photographs and/or to block access to them. The suit was accordingly dismissed with costs payable equally to Facebook Inc. on the one hand and Google LLC and YouTube LLC together on the other hand, of Rs.2 lacs each.

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