How the Delhi High Court ruling on criminal defamation will hit free speech on social media

New Delhi: A recent ruling by the Delhi High Court, which affirmed that reposting or sharing libellous content constitutes criminal defamation, has broad implications for freedom of expression on social media platforms, and for ongoing and future defamation cases, legal experts told Mint.

Legal experts warned that users could face action for sharing unsubstantiated content on social media following the Delhi High Court's ruling, which said that reposting defamatory content would attract similar liability as the original post.

The high court delivered the ruling on Monday in a criminal defamation case involving Delhi chief minister Arvind Kejriwal. The court refused to quash the summons issued to the chief minister regarding an allegedly ‘defamatory’ video that YouTuber Dhruv Rathee posted on X (then Twitter) in 2018, which Kejriwal reposted. The court also upheld the summoning order passed by the magistrate and the sessions court’s order rejecting Kejriwal's revision plea.

The issue of criminal defamation garnered significant attention last year in a case involving Congress MP Rahul Gandhi, who was disqualified from the Lok Sabha after he was convicted of criminal defamation by a Surat court.

“After the Delhi High Court ruling, merely stating that the content represents the original poster’s views when reposting it won’t protect someone from liability under Section 499 (defamation) of the Indian Penal Code. Therefore, the freedom of expression in re-sharing such content on social media is now subject to reasonable restrictions, which was previously applicable to print and other media platforms,” said Manmeet Kaur, partner at Karanjawala & Co.

Abhimanyu Kampani, partner at Luthra and Luthra Law Offices India, said, “The Delhi High Court ruling will have a significant impact on ongoing and future defamation cases involving social media. The court has emphasised the importance of protecting an individual's reputation from being tarnished through reckless and unsubstantiated statements on social media.”

Experts also said the ruling would have a bigger impact on public figures with large numbers of followers. Kaur said social media users, especially public figures, should refrain from posting or sharing any opinion, personal comment, image or narrative that has no basis in reported documents, court orders, or information in the public domain, or statements that are not indisputably truthful.

Abhimanyu Kampani said the court sees reposting as equivalent to publishing, noting that a post is seen by more people if shared by someone with a big social-media following.

In India, defamation can attract a civil or a criminal case. Criminal defamation, a contentious colonial-era law, has been criticised for its alleged misuse and for infringing on people’s freedom of expression. Governed by the Indian Penal Code, it can attract up to two years in jail or a fine. Civil defamation, according to Code of Civil Procedure, involves lawsuits seeking compensation for reputational harm. In civil cases, the petitioner must be able to demonstrate malicious intent and resultant harm to reputation or livelihood.

Experts advised users to exercise caution when sharing content that could be seen as defamatory. Kampani said, “If you, as a social media user, come across a post or comment that you believe is defamatory, it would be advisable to report it to the platform and not respond to it or share it, as this would only amplify its reach.” Sagar Aggarwal, managing partner at Areness, said, “From now, merely stating that ‘reposting doesn’t mean endorsement’ in bio will not confer any legal immunity.”

The high court ruling came soon after the 22nd Law Commission Report last week, which recommended retaining the law against criminal defamation.

“The 22nd Law Commission Report recommended retaining criminal defamation, considering it a necessary remedy to protect the reputation of individuals. The court has also recognised in the judgement the need to balance the right to freedom of speech with the right to protect one’s reputation, which is considered part of Article 21 of the Constitution,” said Kampani.

He added that any changes to the law would depend on the legislative process and the evolving societal and legal landscape. In light of these evolving dynamics, the defamation law may need to have a more balanced approach, with effective remedies and quick responses, he said.

Aggarwal said, “The future of criminal defamation law in India appears to hinge on maintaining a delicate equilibrium – protecting people’s freedom of speech while preventing them from disparaging another’s hard-earned reputation.