Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Contracts Expression
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The High Court in Delhi, India confirmed that the Indian Penal Code provision criminalizing defamation continues to apply even when the expression had been made electronically. An Indian politician had applied to the High Court to set aside a summons following a charge of criminal defamation in relation to a series of tweets and retweets. The High Court held that the determination of whether the retweets in the present case met the requirement of “publication” had to be considered in light of all circumstances in the case and that a trial court was the appropriate forum for such a determination. The Court upheld the summons and referred the matter back to the trial court for hearing. Jaitley and Chadha ultimately reached a settlement.
In March 2017, Arun Jaitley, the Indian Minister of Finance, Corporate Affairs and Information and Broadcasting, filed a criminal complaint accusing Raghav Chadha, a member of an opposition party, and other individuals of defamation. Jaitley alleged that Chadha and the others had engaged in a “false, malicious and defamatory campaign against him and his family” which was “calculated, engineered and designed for gaining political mileage and other unwarranted benefit at the cost of causing irreversible damage to [Jaitley’s] reputation” [para. 3]. Jaitley referred to a series of tweets posted on Twitter in December 2015 which stated that the Central Bureau of Investigation had raided the house of a bureaucrat in the Government of Delhi in search of information linking Jaitley to corruption with the Delhi District Cricket Association.
After a summoning order was issued by the Chief Metropolitan Magistrate in Delhi, Chadha filed an application in the Delhi High Court to challenge the legitimacy of the summons in relation to the criminal defamation charges brought against him.
The central issue for the Delhi High Court to determine was whether there was a prima facie case of defamation against Chanda, and so whether the summoning order was legitimate. This Court was not required to determine the merits of the defamation charge.
Chadha maintained that because the communications made by him which formed the basis of the criminal defamation charge were electronic they were governed exclusively by the Information Technology Act, 2000 (the IT Act) and not by section 499 of the Penal Code, 1860 (which criminalizes defamation). He argued that as the IT Act should be seen as the primary legislation governing online expression there could therefore be no criminal defamation in respect of online speech. In the alternative, Chadha argued that merely retweeting an existing tweet written by another individual did not amount to publication – a necessary element of the offence of defamation [para. 4].
Jaitley argued that the remedy of criminal defamation under the Indian Penal Code also extended to online expression. He also submitted that a retweet amounted to publication as a fresh representation or endorsement of the views in the original tweet and that, irrespective of the position of a retweet in defamation law, Chadha and the other individuals had made other similar, defamatory statements in print and electronic media in their individual capacities and as members of their political party [para. 5].
The Court held that the IT Act did not displace the authority of section 499 of the Penal Code and that, therefore, criminal defamation remained an available remedy in respect of online speech.
In ascertaining whether a retweet constitutes publication as required for the offence of criminal defamation the Court referred to the foreign jurisprudence principles raised by Chadha supporting his argument that a retweet was “merely a technical enhancement to forward the original tweet” [para. 12], and to the Indian jurisprudence raised by Jaitley in arguing that a retweet constitutes re-publication and therefore meets the requirements for “publication” [para. 13].
However, the Court emphasized that a “perusal of the complaint” indicated that Chadha and the other individuals had “participated in press conference, issued derogatory statements orally, used twitter handles, retweeted, disseminated, defamatory imputations targeting [Jaitley] through platform of press and media” and that the question of whether a retweet constituted publication had to be considered with regard to all the facts and circumstances of the case [para. 16]. Accordingly, the Court held that any comment on whether the retweets in this case constituted publication for the purpose of criminal defamation would be prejudicial to the finding of fact by the Trial Court. The Court upheld the summons and sent the matter to the Trial Court for determination on the merits.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The High Court in Delhi noted that the determination of whether a retweet amounts to publication for constituting the offence of criminal defamation depends on the facts and circumstances of the case, and that this determination must be made by a Trial Court. In declining to rule authoritatively on this matter the High Court opened the door for retweets to become the basis for conviction in some criminal defamation cases.
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