Can you be sued for defamation if you retweet defamatory content?

The Supreme Court this week restrained a trial court from proceeding with a defamation case against Delhi Chief Minister Arvind Kejriwal for retweeting a YouTube video against the BJP’s IT cell.

A Bench of Justice Sanjiv Khanna and Justice Dipankar Datta said retweeting need not always mean endorsement. “If it is an endorsement, then it may have its own consequences,” Justice Khanna said. “The other way to look at it is, you found something on the Internet or the website, and you are just sharing that information.”

Counsel for Kejriwal senior advocate Abhishek Manu Singhvi said, “There’s no problem in admitting that this was a mistake if he had known that these would be the consequences.”

What is this case, and what is the issue involved?

The court was hearing Kejriwal’s challenge to a February 5 order of the Delhi High Court order upholding the summons issued to him in a criminal defamation case for retweeting an allegedly defamatory video posted by YouTuber Dhruv Rathee in 2018.

Justice Swarana Kanta Sharma of the HC had observed that “Every retweet of defamatory imputation would ordinarily amount to ‘publication’ under IPC Section 499”, and that when a public figure tweets a defamatory post, the ramifications extend “far beyond a mere whisper in someone’s ears”.

Kejriwal had gone to the HC against two orders — by a magisterial court in July 2019 summoning him, and by the sessions court in October 2019 dismissing his revision plea against the summons.

The complainant, Vikas Sankrityan, had claimed that Rathee had circulated a video on YouTube titled ‘BJP IT Cell Part-2’, in which “certain defamatory statements were made” against him.

How does the law define defamation?

Under Indian law, defamation can be a civil wrong or a criminal offence. Civil defamation can be libel (through writing) or slander (spoken word), and is based on tort law. It is punishable with financial compensation, and damages are computed based on probabilities.

In criminal cases, defamation must be proven beyond reasonable doubt. Section 499 of the Indian Penal Code (criminal defamation) says: “Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.”

Criminal defamation can attract a jail term up to two years, with or without fine (Section 500 IPC).

What about the right to free speech?

In its 2016 ruling in ‘Subramanian Swamy vs. Union of India’, the SC upheld the constitutionality of IPC Sections 499 and 500, saying that the right to reputation is protected under Article 21 (Protection of life and personal liberty) of the Constitution, and that criminal defamation is a reasonable restriction on the right to freedom of expression.

While Article 19(1)(a) of the Constitution protects the right to speech and expression, Article 19(2) allows the state to impose “reasonable restrictions” on this right in the interest of “sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

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In its 2017 ruling in ‘Kaushal Kishore vs Union of India’, a five-judge Bench of the SC said that no additional restrictions can be imposed on free speech except those under Article 19(2).

The erstwhile Section 66A of The IT Act, 2000, had criminalised sending “offensive messages” by means of “a computer resource or a communication device”. This provision was quashed by the SC in 2015 in ‘Shreya Singhal vs. Union of India’ in view of the ambiguity in the definition of the term “offensive”, and on the ground that the provision was “violative of Article 19(1)(a) and not saved under Article 19(2).”

So does retweeting allegedly defamatory content amount to defamation?

Senior advocate Madhavi Goradia Divan, author of the textbook ‘Facets of Media Law’, said: “An essential ingredient of defamation is the lowering of one’s reputation in the public eye. Also, the defamatory statement must be communicated to a third person.”

Divan said that “a [defamatory] retweet multiples quickly and reaches others”, and “thus, the damage is far greater in cases of online abuse”.

While a complaint for online defamation is made under Section 499 IPC, such alleged defamatory material will be taken down under Section 69 of the IT Act, which allows the Centre to issue takedown or blocking orders to intermediaries for content undermining national security.

In Kejriwal’s case, the Delhi HC ruled 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”.

The court noted that “while the petitioner may plead absence of any malicious intent in the act of retweeting”, it has to consider the “responsibility that accompanies the petitioner’s political and social standing”. The large social media following of a Chief Minister “undoubtedly implies a wider reach, making any retweet a form of public endorsement or acknowledgment”, the HC said.

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