News Excerpt:

The Supreme Court has 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.

Background of the case:

• The SC was hearing Kejriwal’s challenge to an order of the Delhi High Court upholding the summons issued to him in a criminal defamation case for retweeting an allegedly defamatory video.
• Earlier Delhi HC had observed that “Every retweet of defamatory imputation would ordinarily amount to ‘publication’ under IPC Section 499”.
• When a public figure tweets a defamatory post, the ramifications extend “far beyond a mere whisper in someone’s ears”.
• Delhi CM had gone to the HC against two orders — by a magisterial court summoning him, and by the sessions court dismissing his revision plea against the summons.
• The complainant had claimed Mr. Kejriwal had retweeted a video titled ‘BJP IT Cell Part-2’, in which “certain defamatory statements were made” against him.

Defamation under Indian Law:

• 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 defines criminal defamation.
• 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 to defame that person.
• There are certain exception to the act of defamation under Section 499:
• Suggestion of truth for public good, Public conduct of public servants, Publishing reports of court proceedings etc.
• Criminal defamation can attract a jail term up to two years, with or without fine.
• In Ram Jethmalani Vs. Subramanian Swamy (2006): The Delhi HC held Dr. Swamy guilty for defaming Ram Jetmalani by saying that he received money from a banned organisation LTTE, as LTTE is banned organization and connecting the name with it leads to loss of reputation.

Defamation vs right to free speech:

Consequences of retweet:

• 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.
• 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”.