Above: Artist Subodh Gupta
Social media platforms have raised concerns over a Delhi HC order to take down #MeToo allegations against artist Subodh Gupta and reveal the identity of the account holder who posted them
Can social media platforms such as Facebook, Google and Instagram disown responsibility for their content despite adverse consequences for the reputation, safety and security of individuals? On September 18, Justice Rajiv Sahai Endlaw of the Delhi High Court ordered Google and Facebook to remove all anonymous social media posts making #MeToo allegations against artist Subodh Gupta. It also directed them to reveal in a sealed envelope the identity of the Instagram account holder, “Herdsceneand”, through which such allegations were made.
The order directed the platforms to take down and block as many as 18 web links carrying sexual harassment allegations against the artist. The anonymous “Herdsceneand” was also restrained from posting any further content pertaining to the artist. Justice Endlaw held that “prima facie, it appears that the allegations as made in the allegedly defamatory contents, cannot be permitted to be made in public domain/published without being backed by legal recourse. The same if permitted, is capable of mischief.”
Gupta’s counsel told the Court that none of the alleged victims of sexual harassment had been named in the content and none had identified himself/ herself, and no legal proceedings had been initiated against Gupta or the contents published.
In response, the counsel for the social media platforms told the Court that the 18 web links which were directed to be blocked were search results and not URLs and they led to a large number of URLs, all of which may not contain defamatory content. The Court then directed Gupta’s counsel to intimate to Google the URLs containing the defamatory content and asked Google to remove those URLs within 72 hours of communication of such information.
The Guardian reported that the Instagram post appeared to be from a former female associate of Gupta, and it accused Gupta of sexual misconduct, including repeated requests for an assistant to pose nude. Gupta, however, denied the allegations last December. “I have never behaved in an inappropriate manner with any individual who worked with me and several of my former assistants can attest to this. These allegations are entirely false and fabricated,” he reportedly told The Mint newspaper. Gupta then filed a defamation suit against the anonymous Instagram account holder for publishing “unfounded, baseless sexual harassment allegations”. Gupta is a reputed sculptor and makes installations out of everyday items such as stainless steel tiffin boxes, kitchen utensils, buckets and milk pails.
As the case is listed for further hearing on November 18, Google has expressed concern that such an order from the High Court would have a “chilling effect on free speech”. Google also reportedly claimed that it would be “against public interest” to take down the articles. On October 14, Google moved the Delhi High Court seeking to vacate Justice Endlaw’s order directing it to remove the content. Google argued that in a case of alleged defamation, if a prima facie and interim injunction needs to be given, then the threshold for this alleged defamation must be very high. In the case of Gupta’s defamation suit and plea for injunction, the Court did not hold any inquiry into the truth of the allegations, which purportedly defamed him, Google contended.
Google justified a very high threshold to admit such petitions for injunctions in order to keep a fair balance between the constitutional right of free speech and individual rights. It also claimed that it “merely performs the task of indexing information”, and that such information is already available on independent third party websites that are beyond its control and supervision, and that it does not create, own or control any content on third party websites. Google wondered how it could take down content which it neither hosted nor published.
Although Gupta has sought blocking of stories published in The Economic Times and Scroll, the Court did not summon these organisations as defendants.
While Facebook blocked the allegedly defamatory posts on Instagram (which is its creation) in India, users abroad can still view them. Gupta’s counsel is sure to raise this issue at the next hearing in view of the artist’s international reputation. Facebook’s so-called compliance with Justice Endlaw’s order, therefore, is debatable.
In a similar case, an Austrian politician in 2016 sought the removal of a user’s defamatory comments about her on Facebook, along with any similar messages posted by others globally. Austria’s top court, according to a story in Financial Times, asked the European Court of Justice (ECJ) to interpret the e-commerce directive, which does not require tech groups to monitor all content on their platforms and exempts companies from direct legal responsibility for user-uploaded material.
The ECJ concluded that national courts that deemed content illegal could order social media platforms to search and delete identical or “equivalent” content worldwide. According to observers, however, the ECJ’s ruling is deeply flawed. When removing offending content, the ECJ said, platforms could use automated filtering systems to help them.
The Financial Times editorial expressed its concerns: “This technology (automated filtering systems) is expensive to create and operate, advantaging well-heeled Big Tech companies. The definition of ‘equivalent’ is also vague. Given the increasing pressure from regulators, platforms are likely to interpret the word more broadly than they might have before. Previous laws, such as Germany’s regulations against misinformation and hate speech online, have shown that using automated filtering to weed out harmful content creates problems with more nuanced points, such as satire for example. The ruling could be exploited by European populist governments where rule of law is weakening: courts there could demand that critical content be removed worldwide….Attempting to impose the bloc’s will worldwide may encourage other states to assert policy transnationally… Policymakers, regulators and the courts should be wary of ill-planned interventions that risk doing more harm than good.”
Even as the Delhi High Court case involving Gupta’s right to reputation is inconclusive, Justice Mangesh S Patil of the Bombay High Court held on October 4 in another case that journalists do not enjoy some kind of special privilege or have greater freedom than others to make imputations or allegations sufficient to ruin the reputation of a citizen. They are in no better position than any other person, he held.
The truth of an allegation does not permit a justification unless it is proved to be in public good, he added. “The question whether or not it was for public good is a question of fact which needs to be proved like any other relevant fact,” he further explained.