Arun Jaitley's suit against AAP's Raghav Chadha: Does republishing of defamatory content amount to 'defamation'?

The Supreme Court of India recently directed the Delhi High Court to expeditiously decide a defamation suit filed by Union finance minister Arun Jaitley against Aam Aadmi Party’s (AAP) spokesperson Raghav Chadha. The defamation suit involves a tweet by Delhi chief minister Arvind Kejriwal (allegedly defaming Arun Jaitley) which was retweeted by Chadha; Jaitley claims that Chadha is guilty of defamation because he retweeted a defamatory post against him. While the Delhi High Court is yet to rule on the matter, the case throws up an interesting question of what constitutes defamation on social media. The law of defamation The law of criminal defamation in India is contained in section 499 of the Indian Penal Code (IPC). A person who makes imputations (statements or remarks) which harm (or are likely to harm) the reputation of another person, is said to defame that person. Defamation can be oral (slander) or written (libel). Section 499 does not clarify whether republishing or sharing of defamatory statements also amounts to defamation. [caption id=“attachment_3899127” align=“alignleft” width=“380”] File image of Union finance minister Arun Jaitley. PTI[/caption] In the famous English case, Sim versus Stretch ([1936] 2 All ER 1237), Lord Atkin laid down the test for defamation, namely, ‘would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’ In other words, a defamatory statement is a statement which lowers the reputation of the defamed person in the eyes of the public. An essential ingredient of defamation, therefore, is that the defamatory statement must have been ‘published’ ie the allegedly defamatory remark must have been made before a third party. This means that the defamatory remark must have been intended to be read or heard by a third party and therefore, risks lowering the reputation of the defamed person in the ’estimation’ of the public. For instance, if ‘X’ calls ‘Y’ a dishonest man in a private meeting between X and Y alone, this would not amount to defamation as the statement is not made before a third person. If on the other hand, X calls Y a dishonest man in a private meeting where a third person ‘Z’ is also present, X has made the statement before a third party and therefore, may be guilty of defamation. Another important aspect of defamation is that even if a defamatory statement (though made before a third person) is not heard or read by the third person, the person making the statement may still be guilty of defamation. For instance, if X writes a letter to Z wherein X defames Y, Y can still successfully sue X, even if Z did not actually read the letter defaming Y. This principle is especially important in understanding defamation on social media. If X makes defamatory statements about Y on his personal blog, X would be guilty of defamation if the blog can be read by the public even if no person actually read X’s blog. Similarly, if X publishes a defamatory status update about Y on his Facebook Timeline (viewable to X’s friends or the public), X would be guilty of defamation even if nobody, in fact, read the defamatory status. An act done with the mere intention to defame Y before members of the public is sufficient to attract the offence of defamation. Republishing of defamatory content Under the law of defamation, a person who republishes defamatory content is also liable for defamation; this is true even if he attributes the defamatory statement to the original source. This rule comes from the notion, ’tale bearers are as bad as tale makers’, upheld in the United States case, Times Pub Co versus Carlisle, 94 F 762 (8th Cir 1899). Republishing defamatory content is especially common on social media where original posts are quickly retweeted or shared by followers. The exception to the rule on reposting defamatory content is the ‘ neutral reportage privilege’, which allows newspapers to republish defamatory accusations made against public figures in controversies involving public interest. The neutral reportage privilege was first recognised in the US case, Edwards versus National Audubon Society, Inc in 1977. However, it is important to note that this privilege by its nature protects only news reporting agencies and not members of the public. The Punjab-Haryana High Court in Harbhajan Singh versus State of Punjab ((1961) CrLJ 710) and the Madras High Court in In Re: EVK Sampath (AIR 1961 Mad 318) held that re-publication of a defamatory post is also actionable (ie a person can sue for republication of defamatory content). Defamation against public figures The Information Technology Act 2000 and the IPC are silent on defamation on the internet. In other jurisdictions, online defamation cases are dealt with in the same manner as traditional cases. In the United Kingdom, reposting and retweeting defamatory content is actionable. However, in the United States, retweeting a libellous statement is not by itself defamatory unless the retweet was a modification of the original defamatory tweet. The allegedly defamatory tweet in the instant case relates to statements made by Kejriwal accusing Jaitley of financial irregularities when Jaitley was the president of the Delhi and District Cricket Association (DDCA) from 2000 to 2013. The law of defamation makes a distinction between private individuals and public figures, placing a higher burden on the plaintiff (complainant) where the alleged defamation is against a public figure. The US Supreme Court in New York Times Co versus Sullivan laid down that where the plaintiff is a public figure/public official, they must prove that the defamatory statement was made with ‘actual malice’ (“knowledge of falsity or reckless disregard for the truth”).

Going by the principles of defamation law, it appears that retweeting of defamatory tweets by Chadha also constitutes defamation.

While Chadha may argue that Jaitley being a public figure must prove ‘actual malice’ to succeed, there are concerns that the defence of ‘actual malice’ does not apply to social media; this is because the line between public figures and private individuals becomes blurred on the internet as even the ‘common man’ on social media can have thousands of followers, making him an internet celebrity of sorts. However, given that Chadha’s retweet was a comment on Jaitley while he was in public office, the Delhi High Court will do well to allow the defence of ‘actual malice’ to prevent public officials from curbing public comment on grounds of defamation. The author is an intellectual property rights lawyer.