While not leaving even an iota of ambiguity to have a free run in any corner of mind of anyone on the most cascading consequences of retweeting defamatory content, we must note here that the Delhi High Court in a most learned, laudable, landmark and latest judgment titled Arvind Kejriwal vs State & Anr in CRL.M.C. 6347/2019 and cited in Neutral Citation No.: NC:2024:DHC:820 that was reserved on 10.01.2024 and then finally pronounced on 05.02.2024 has minced just no words to observe most unequivocally that retweeting defamatory content can also attract the offence of defamation under Section 499 of the Indian Penal Code. We also need to note here that while refusing to quash the criminal defamation case that had been filed against the Delhi Chief Minister Mr Arvind Kejriwal for re-tweeting a video titled BJP IT Cell Part 2, the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma unequivocally maintained that:
Needless to say, the large social media following of a Chief Minister of a State undoubtedly implies a wider reach, making any retweet a form of public endorsement or acknowledgement. It thus certainly merits no reiteration that those who are in the political arena especially and even others must be most careful in retweeting without understanding its implications in the longer run properly which can later only turn out to be a self-inflicted wound! No denying it!

Prelude
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that:
The sheer magnanimity of reputational injury caused by posting defamatory content against a person who holds his reputation dear to him, which may often be dismissed as a mere tweet or retweet, has been urged to be examined, persuading this Court to adjudicate this critical issue since now the Cyber World turns Whispers into Symphony.

As we see, the Bench then points out in para 2 that:
In today’s digital age, the dynamics of law change, as exemplified by the present case, where this Court has been posed with a situation where reputational harm has been alleged by the complainant by a repost in cyberspace. In this evolving digital age, physical damage to someone’s reputation is not the only possibility but it is the cyber world which now has taken over the real world, where if any defamatory statement is made, the effect of reputational harm is amplified. In the realm of defamation, statements made in the physical world may resemble a mere whisper, but when echoed in the cyber domain, the impact magnifies exponentially.

As things stands, the Bench observes in para 3 that:
The issue before this Court through the present petition is one which requires this Court to lay down certain principles based on jurisprudence of defamation, in the light of the evolution of cyberspace, and its extensive usage as a means to damage the reputation of someone. The Court is posed with a situation where an alleged defamatory content has been posted by an original author, and then the same content has been retweeted/reposted on the popular social media platform ‘Twitter’ (now ‘X’) by the present petitioner.

Background Facts
In short, to put things in perspective, the Bench envisages in para 8 that:
On 06.05.2018, one Sh. Dhruv Rathee i.e. original author of the impugned/alleged defamatory content had uploaded a video on YouTube, wherein inter alia, certain allegations were made against respondent no. 2 which has been referred to as ‘First Offending Publication’ in the petition. On 07.05.2018, Sh. Dhruv Rathee published on his Twitter account, an allegation that the Information and Technology (‘IT’) Cell of Bharatiya Janata Party (‘BJP’) had attempted to bribe a person to defame Sh. Dhruv Rathee and he had drawn a reference to Uniform Resource Locator (‘URL’) of the first impugned publication, which has now been termed as ‘Second Offending Publication’ in the petition. On 07.05.2018, the petitioner herein, Sh. Arvind Kejriwal had reposted i.e. ‘retweeted’ the second offending publication of Sh. Dhruv Rathee, which is termed as the ‘Impugned Publication’, and which read as under:

Dhruv Rathee @ dhruv rathee 07 May

BJP IT Cell tried to bribe 50 Lakh rupees to Mahavir in exchange for defaming me. This sting video exposes their dirty tricks.

As it turned out, the Bench then enunciates in para 9 that:
On 28.02.2019, a complaint was filed by the complainant/respondent no. 2 Sh. Vikas Sankritayan @ Vikas Pandey, against the petitioner Sh. Arvind Kejriwal, for initiating proceedings against him for commission of offences punishable under Section 499/500 of IPC.

Whether Petitioner Is Liable To Be Summoned For His Act Of Retweeting The Allegedly Defamatory Content?

Do note, the Bench notes in para 81 that:
In the present case, the petitioner had retweeted the original tweet of Sh. Dhruv Rathee, and the said retweet contained the embedded hyperlink/URL to the allegedly defamatory video which had been uploaded on the YouTube channel owned and run by Sh. Dhruv Rathee.

Most significantly, the Bench then mandates in para 82 stating succinctly that, While the petitioner may plead absence of any malicious intent in the act of retweeting, the Court has to consider the responsibility that accompanies the petitioner's political and social standing. Needless to say, the large social media following of a Chief Minister of a State undoubtedly implies a wider reach, making any retweet, a form of public endorsement or acknowledgment.

Equally significant is what the Bench then mandates further in para 83 that, When a political person of such standing or a public figure or a social influencer, posts some content on his social media account, it can be reasonably believed by the Court while adjudicating such cases, at the initial stage of a case where summoning is in question, that he did understand the repercussions and implications of posting such content and the corresponding harm it can cause to the person aggrieved. In this Court’s opinion, the online interactions and engagement on Twitter, which involves publication of defamatory statements and content, and sharing such content with others by retweeting will surely attract liability since it would amount to posting defamatory content as one’s own by believing it to be true and thus, sharing it with the public at large.

Be it noted, the Bench notes in para 87 that:
The original author of the defamatory content i.e. Sh. Dhruv Rathee alongwith another accused i.e. Sh. Mahavir Prashad are already accused in Ct. Cases 5786/2018, which is pending trial before the learned MM-01, South-East, Saket Court, Delhi.

Most forthrightly, the Bench propounds in para 89 that:
Whether the impugned publication and the alleged defamatory content will help the petitioner as a political person or not, is not in this Court’s domain to go into, at this stage. Thus, regardless of whether posting such content or filing a defamation case serves the interests of the petitioner or the respondent in gaining political mileage, this Court must adjudicate a criminal matter solely based on the legal provisions outlined in the relevant sections of criminal law and in accordance with established judicial precedents. The decision should be made without any consideration of personal agendas or the potential impact or implications on the political landscape at the threshold of journey of a case i.e. summoning on the basis of adequate material on record.

It cannot be glossed over that the Bench expounds in para 90 that:
The present case is still at the stage of the accused having been summoned. He has challenged the issuance of summons and the summoning order and has raised the issues of illegality in issuance of summons which have been adjudicated upon by this Court in the preceding paragraphs. The issues have been decided against the petitioner herein. Resultantly, this Court finds no reason to interfere with the order of summoning passed by the learned Trial Court. The petitioner herein will have opportunity to raise contentions before the learned Trial Court during the course of trial which will be decided as per law, including the issue as to whether for the purpose of trial case under Section 499 of IPC is made out or not. At this stage, there was sufficient material before the Court concerned to summon the petitioner under Section 499 of IPC.

Further, the Bench specifies in para 91 that:
It is for the Trial Court Judge to determine at a pre-summoning stage what is capable of being defamatory for the purpose of summoning. Whether the content has been proved to be defamatory or not is a matter of trial.

Conclusion
Furthermore, the Bench hastens to add in para 92 that:
At times, it is difficult to erase the reputational injury from public memory, as the tweets may be deleted but perceptions are difficult to be deleted from the minds of the community.

Quite significantly, the Bench postulates in para 93 that:
This Court, thus, for the purpose of adjudicating the present case, holds 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.

As a corollary, the Bench then directs in para 94 that:
Therefore, this Court finds no infirmity with the impugned orders passed by the learned Trial Court as well as learned Sessions Court.

What’s more, the Bench then further directs in para 95 that:
Accordingly, the present petition stands dismissed.

While adding a rider and for sake of clarity, the Bench clarifies in para 96 holding that:
It is, however, clarified that the observations made hereinabove qua the present complaint case are solely for the purpose of deciding the instant petition challenging the summoning orders, and the same shall not be construed as opinion of this Court on the merits of the case, which will be adjudicated upon during the course of trial.

Finally, the Bench then concludes by holding in para 97 that:
The judgment be uploaded on the website forthwith.

In sum, we thus see that the Delhi High Court has made it manifestly clear that retweeting defamatory content can also be an offence under Section 499 of the IPC. We further also see that the Delhi High Court after perusing the facts of the case and considering all the material before it finds just no difficulty in coming to the ostensible conclusion that Mr Arvind Kejriwal would also be liable for retweeting the defamatory content. This alone explains why we observe that the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma thus refused to quash the defamation case against the Chief Minister of Delhi – Mr Arvind Kejriwal in clear terms. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh