Case Summary and Outcome

The Delhi High Court ruled that public figures (or persons with a large public following) who retweet or repost defamatory material on social media can prima facie attract liability for criminal defamation under Section 499 of the Indian Penal Code, 1860 (IPC), which provides sufficient basis for summoning them to trial as accused. Arvind Kejriwal, the incumbent Chief Minister of Delhi, and the petitioner in this case, retweeted an allegedly defamatory tweet by a YouTuber, accusing the IT Cell of the ruling Bhartiya Janta Party (BJP) of corruption. A criminal defamation action was initiated against Kejriwal, and he was summoned by the presiding Trial Court. Kejriwal requested the Delhi High Court to quash the summoning order. In rejecting Kejriwal’s petition, the Delhi High Court reasoned that public figures must be held to a higher standard of accountability for their social media activity given their influence and ability to shape public opinion. The Court argued that, owing to their clout, public figures can inflict significant reputational injury by negligently reposting defamatory imputations and, therefore, should not be allowed to escape criminal liability merely for not authoring at-issue libelous material.

Facts

On May 6, 2018, popular Indian YouTuber and blogger, Dhruv Rathee, uploaded a YouTube video in which he leveled corruption allegations against Vikas Pandey, the operator of a popular social media fan page dedicated to Prime Minister Narendra Modi—and the second respondent in this case. Subsequently, on May 7, 2018, Rathee shared this video on Twitter (now X) with a caption accusing the BJP’s IT Cell of bribing a third party to defame him. Arvind Kejriwal, the incumbent Chief Minister of Delhi, and the petitioner in this case retweeted this post without confirming the veracity of Rathee’s allegations.

Pandey began criminal proceedings for defamation under Sections 499 and 500 of the IPC against Kejriwal before a Trial Court in Delhi. The Trial Court summoned Kejriwal to appear in person through an order dated July 17, 2019. Kejriwal filed a revision petition against this order before the jurisdictional Sessions Court, which was dismissed on October 30, 2019. Aggrieved by these decisions, Kejriwal petitioned the Delhi High Court, seeking to quash the Trial Court’s summoning order.

Decision Overview

Justice Swarana Kanta Sharma delivered the judgement for the Delhi High Court. The main issue before the Court was whether a retweet could form the basis for summoning an accused to trial for criminal defamation under Section 499 of the IPC. Broadly, the aforementioned provision prohibits the utterance or publication of any words with the intent or knowledge that they will cause harm to the reputation of others. This provision is subject to ten codified exceptions, including the publication of true statements for the public good. Under Section 500 of the IPC the offence of criminal defamation is punishable with simple imprisonment for a term up to 2 years, or with a fine, or both.

Kejriwal argued that the Trial Court summoned him mechanically, without properly evaluating whether the alleged offence was made out since an essential element of criminal defamation is mens rea or criminal intent. According to the petitioner, such intent could not be inferred from the mere act of retweeting. Further, Kejriwal said that he was neither the author nor publisher of the ostensibly defamatory allegations against Pandey. Thus, the petitioner argued that none of the statutory requirements for criminal defamation were satisfied. Lastly, Kejriwal argued that while issuing the summoning order, the Trial Court failed to consider whether any of the enumerated exceptions to the offence of defamation under Section 499 of the IPC were applicable in this case.

For his part, Pandey argued that a prima facie case of criminal defamation was made out against Kejriwal since he negligently amplified the at-issue defamatory material by retweeting it. By doing so, Kejriwal made this material available to a wide audience both domestically and internationally, resulting in serious reputational injury to Pandey.

Relying upon the Supreme Court’s verdict in Iveco Magirus Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya and Ors, the Delhi High Court held that at the stage of issuance of summons, trial courts need only to determine whether there exists “sufficient cause to issue process”, which is a distinct and lesser standard than “sufficient cause to convict” the accused. [para. 42] To make this determination, trial courts must decide whether the alleged offence is prima facie made out based solely on the contents of the criminal complaint.

The High Court opined that, in cases like the present, where a public figure has retweeted or reposted defamatory material without any disclaimer, the retweet will be considered a republication and is sufficient to establish a prima facie case for criminal defamation. This is because public figures possess phenomenal power to shape popular opinion. Consequently, their social media followers may blindly believe the defamatory imputations they make or recirculate about an individual, causing indelible reputational damage. Thus, it is imperative to hold public figures accountable for their conduct on social media, especially when they negligently repost libellous material without disclaimers.

The Delhi High Court, however, did not automatically extend the above rule to every act of retweeting or reposting defamatory content. To it, while every retweet constitutes republication, only unqualified retweets or reposts by public figures prima facie satisfy the requirements of Section 499 of the IPC for the issuance of summons in a criminal defamation trial. Thus, the dispositive factor in this case was the influence and reach of the individual retweeting the defamatory imputation. According to the Court “the impact on the aggrieved person’s reputation and his character will be much greater, since the larger audience and the influence wielded by a public figure would amplify the spread and longevity of the defamatory content.” [para. 76]

Finally, the Delhi High Court rejected Kejriwal’s argument that the mens rea requirement for criminal defamation was not satisfied since he was not aware of the contents of Rathee’s video. The Court opined that the issue of intent could only be decided during trial, not at the nascent stage of issuance of summons. Additionally, the Court said that whether any enumerated exceptions to criminal defamation apply to this case was also a matter for trial. For these reasons, the Delhi High Court upheld the Trial Court’s summoning order and dismissed Kejriwal’s petition.