Subodh Gupta Case : Delhi HC Allows Instagram Account Holder To Maintain Interim Anonymity

The Delhi High Court on Monday allowed the Instagram account holder, who posted complaints of sexual harassment against Subodh Gupta on Instagram account 'Herdsceneand', to maintain interim anonymity by allowing the filing of vakalatnama and written statements in a sealed cover.

The Single Bench of Justice Rajiv Sahai Endlaw ordered that interim anonymity is to be continued till the case reaches the stage of hearing on merits.  The account holder has also been allowed to serve a redacted copy of the written statement to the plaintiff Subodh Gupta.

The counsel for the Instagram account 'Herdsceneand' submitted before the court that the account holder is willing to join the case provided the anonymity is maintained. 'Revealing the identity would cause irreparable loss to the victims of sexual harassment who shared their stories', the counsel argued. 

The counsel also argued that the account holder only shared the information which was received from other women. 

During the hearing, Justice Endlaw asked the aforementioned counsel that how can you hide behind anonymity. The court inquired:

'How can the plaintiff be expected to fight against a ghost. I don't understand this shadow boxing'.

The court also asked plaintiff to file replies to the impleadment applications filed by Culture Workers Trust and Journalists Union.

The court also modified the previous interim order so as to lend the direction issued to Facebook to reveal the Basic Subscriber Information(BSI) of the Instagram account 'Herdsceneand' infructuous, as now the account holder is itself willing to join the case.

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 had 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, had sought the modification of the said interim order on the following grounds:

• a. 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
• b. 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
• c. 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
• d. 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 submitted 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 was 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 went 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.