Case Summary and Outcome

The Delhi High Court in India initially ordered Instagram and search engines to remove anonymous #MeToo allegations of sexual harrassment against artist Subodh Gupta which appeared on an Instagram handle called Herdsceneand. Gupta filed a defamation suit against Herdsceneand arguing that his reputation had been damaged due to the allegations in the post and, as a result, art galleries were refusing to display his artworks. Herdsceneand argued that disclosing the identity of its administrator(s) would cause it ‘harm for which sufficient protection was not available in the legal system’. Further, it contended that victims of the sexual harassment in such #MeToo cases face a large number of issues and thus they must be permitted to stay anonymous. Although the Court allowed the administrator of Herdsceneand to maintain its anonymity, it ultimately dismissed the case in favour of Gupta after he reached an agreement with Herdsceneand to remove the post and express regret for posting it.

Facts

The plaintiff was a renowned artist called Subodh Gupta. Defendant No. 1 was an Instagram handle called Herdsceneand that provided a platform for alleged victims of sexual harassment to post anonymous allegations against alleged offenders specifically in the Indian art industry. In December 2018, an unknown user posted allegations against Subodh Gupta. In response, Subodh Gupta filed a defamation suit against Herdsceneand, Instagram (Defendant No. 2), Facebook Inc. (Defendant No.3), Facebook Ireland (Defendant No. 4), Google Inc. (Defendant No. 5), Google India Pvt. Ltd. (Defendant No. 6) asking, amongst other things, Rs. 50 million (around 650,000 USD) in damages, Herdsceneand to remove the post and for search engines to remove references of the post and related news articles. Gupta argued that his reputation had been damaged due to the allegations in the post and as a result, art galleries were refusing to display his artworks. On the question of whether Herdsceneand should stay anonymous during the proceeding, Herdsceneand’s counsel argued that disclosing the identity of its administrator(s) would cause it ‘harm for which sufficient protection was not available in the legal system’ [para. 3 of the Order dated November 18, 2019]. Further, it contended that victims of the sexual harassment in such #MeToo cases face a large number of issues and thus they must be permitted to stay anonymous.

The outcomes of this case emerged from a series of Court Orders between September 18, 2019, and February 11, 2020.

Decision Overview

The judgment was delivered by Justice Endlaw, as a single-bench judgment of the Delhi High Court. The main issue before the Court was whether to settle the suit in favour of Gupta and thereby grant him the damages and reliefs sought including the removal of the post and related links from search engines. The Court also had to decide whether it would allow the identity of Herdsceneand’s administrator(s) to remain anonymous through the course of the proceedings.

Gupta argued that his reputation had been damaged due to the allegations in the post and as a result, art galleries were refusing to display his artworks. On the question of whether Herdsceneand should stay anonymous during the proceeding, Herdsceneand’s counsel argued that disclosing the identity of its administrator(s) would cause it ‘harm for which sufficient protection was not available in the legal system’ [para. 3 of the Order dated November 18, 2019]. Further, it contended that victims of the sexual harassment in such #MeToo cases face a large number of issues and thus they must be permitted to stay anonymous.

In the hearing on September 18, 2019, the Court held that, prima facie, allegedly defamatory allegations such as those made in the present post ‘cannot be permitted to be made in the public domain/published without being backed by legal recourse’ [para. 5] as they were capable of mischief. In this ex-parte Order where only Gupta’s lawyers appeared before the Court, the Court directed Herdsceneant to restrain from posting ‘any content pertaining to the plaintiff’ [para. 10] until the subsequent hearing date. It also ordered the defendants in the case to remove the two allegedly defamatory posts on Instagram, nine news articles about the post, and seven Google Search results links pertaining to the post and the plaintiff. The Court also ordered Instagram (Defendant No. 2) to, on the subsequent date of hearing, ‘furnish the particulars of the person/entity behind the account Herdsceneand’ [para. 11]. In the subsequent hearing on November 18, 2019, Herdscenand’s lawyers argued that disclosing the identity of their client (Herdscenand’s administrator) would cause it ‘harm for which sufficient protection was not available in the legal system’ [para. 3]. The Court noted that, generally, maintaining ‘anonymity of identity in a litigation appears to run counter’ [para. 2] to the adversarial nature of judicial proceedings, fairness and the equality of both parties as it would not allow the plaintiff to present a case against the opposing party. However, the Court ultimately ordered in favour of Herdsceneand and allowed proceedings to go on without the identity of Herdscene’s administrator being disclosed to the plaintiff or the public. The Court also allowed two intervenors, the Culture Workers Support Trust and the Indian Journalists Union to be impleaded in the case.

In the subsequent hearing on January 22, 2020, the Court offered Herdsceneand the option to either ‘represent the interest of the said’ [para. 2] accuser behind the post or implead the accuser as a party in the case. The Court noted that if the accuser was impleaded, it would then decide on whether it would allow the accuser to remain anonymous.

In the final hearing on February 11, 2020, Gupta and Herdsceneand suggested that they had reached an amicable resolution. Herdsceneand agreed to remove the allegedly defamatory post in question and ‘expressed regret for the same’ [para. 2]. Gupta agreed that the identity of Herdsceneand’s administrator would remain anonymous and agreed not to press any further charges against Herdsceneand. As agreed by the parties, the Court decreed the suit in favour of Gupta. The Court also noted that as Herdsceneand had taken down the post and expressed regret for the same, no member of the Indian Journalists Union could claim a right to publish a story attributed to the post in Herdsceneand. If any other journalists claimed a right to do so, Gupta would have the remedy of acting against them based on the removal directions in this Order.

To conclude, the suit was decreed in favour of Gupta and the anonymous allegations were removed from the Instagram and Google search results.