Instagram header of @herdsceneand with an orange logo saying “Art Work”, 70 posts, 6410 Followers, and 21 Following.
Instagram header of @herdsceneand with an orange logo saying “Art Work”, 70 posts, 6410 Followers, and 21 Following.
Instagram header of @herdsceneand

How defamation suits against survivors throttle our digital rights and freedoms

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Nov 15 · 6 min read

On 18 September 2019, Indian artist Subodh Gupta filed a civil defamation suit for Rs 5 crores against the Instagram handle @herdsceneand for posting allegations of sexual harassment made against him. On 30 September, the Delhi High Court directed Instagram to take down these posts and restrained @herdsceneand from posting any more information about Gupta. The court also directed Google to take down links on the sexual harassment allegations and directed Facebook-owned Instagram to provide details of the “person/entity” running the Instagram handle.

Such court orders set several disturbing precedents for free speech, privacy and the right to information — and create hostile conditions not just for those speaking publicly about workplace sexual harassment and assault, but for all anonymous whistleblowers.

The Delhi high court’s interim order has made privacy the price we pay to be believed. By defining anonymous and pseudonymous speech as “capable of mischief”, the Delhi High Court places it lower than speech and expression by persons whose identity is known, even though the 2018 Supreme Court Puttaswamy judgement established these as integral aspects of the right to privacy. The Puttaswamy judgement explicitly stated that “people desire anonymity for a variety of reasons, including that it is fundamental to their sense of freedom and autonomy.” The anonymity that online spaces afford is what enables many survivors to come out and disclose experiences of sexual harassment and assault, without the fear of stigma, intimidation and threat to job opportunities. Anonymity needs to be protected as part of privacy, which is now a fundamental right in India.

Interim orders directing social media platforms to take down content — before final rulings — set dangerous precedents for free speech. The @herdsceneand posts on Instagram have been taken down before any final ruling around these. This is premature and seems to implicitly consider these posts as illegitimate. These posts are based on survivors’ experiences of sexual harassment. Removing these is particularly dangerous since the lack of information about a specific individual’s predatory behaviour could harm someone else.

Orders such as these could have further chilling effects on legitimate speech; social media intermediaries may pre-emptively take down other such posts, resulting in overboard censorship. This would particularly impact those marginalised due to gender, caste and class and want to speak out freely against sexual harassment. Survivors who have publicly come out online with their allegations of workplace sexual harassment and sexual assault have been subjected to immense media and public scrutiny and have faced online violence. It is vital that social media platforms deal with online violence against such posts, instead of taking down the posts themselves.

Interim orders directing search engines to take down news links also create disturbing precedents for information rights and media freedom. Google has been directed to take down at least 18 web links, many of which are news articles on this case. Such orders are against the public interest: they curtail information flow, restrict our right to information, and clamp down on freedom of the press. The World Press Freedom Index 2019 notes that India ranks 140 out of 180 countries on press freedom.

Restraining social media handles from posting information about sexual harassment not only goes against our right to expression, but has a chilling effect on survivors who want to speak out. We have a right to freely express the truth, hold perpetrators accountable, and raise awareness about sexual harassment and abuse. Such social media posts serve a larger public interest in bringing sexual violations to light via multiple testimonies. Restricting these posts is nothing but censorship and is akin to covering up such violations.

The interim order implies that a sexual harassment complaint that is not legally made is not serious or true. The order states that “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.” The low number of instances of legal follow-up after the wave of #MeToo testimonies is indicative of a systemic lack of legal, social, and economic support for survivors, especially when the accused is infinitely more powerful. On the other hand, there have been several instances of intimidation of survivors through legal mechanisms by those in positions of power.

It is up to survivors to decide how they will speak up about sexual harassment and abuse — and what steps they want to take to address this. Judicial authorities must recognize that legal barriers and power structures are complicit in preserving silences around sexual harassment. It is vital that courts take a survivor-centric approach, creating an enabling environment for legal recourse where the process in itself does not become punishment.

The interim order has not specified how the privacy of the individuals behind the anonymous social media handle will be safeguarded. The Delhi High Court has asked Facebook and Instagram to reveal the identity of the people/entity behind @herdsceneand in a “sealed envelope”. However, it has not indicated how this identity will be kept private. Without transparency on this, the order to reveal identity can have a chilling effect on anonymous whistleblowing online. This has to be specified clearly, especially since @herdsceneand has become a safe space to speak out about sexual harassment in India. Considering the high profile of the accused and the number of accusations against other well-known figures via @herdandscene, there are potentially serious impacts to the safety and security of the people behind the handle, both online and offline, should it become public knowledge or even if it’s known to a select and powerful few.

We stand in solidarity with social media handles that enable sexual harassment survivors to speak out and strongly object to the use of defamation as a method to intimidate and silence survivors and those who represent their interests. We call on the judiciary to uphold our digital rights including freedom of speech, expression and privacy of citizens as enshrined in the Indian constitution.

In solidarity,

  1. Point of View, India
  2. Bishakha Datta
  3. Smita Vanniyar
  4. Devanshi Vaid
  5. Srinidhi Raghavan
  6. Lainie Yeoh
  7. Digital Rights Foundation, Pakistan
  8. Teesta
  9. hvale vale
  10. Parsa Sajid
  11. Tigist Hussen
  12. Shivani Lal
  13. Cathy
  14. Savi Vanka
  15. Jenny Radloff
  16. Radha Mahendru
  17. Marcia DCunha
  18. Paromita Vohra
  19. Agents of Ishq, India
  20. Sukhnidh Kaur
  21. Archismita Choudhury
  22. Anahita S.
  23. Queerabad, India
  24. Being Feminist, India
  25. Tanzim Wahab, Curator, Bengal Foundation, Bangladesh
  26. Prachi Sharma
  27. Nikita Patodia
  28. Gayatri Khandhadai
  29. Mira Malhotra
  30. Geeta Seshu
  31. NayanTara Gurung Kakshapati, Photo Kathmandu, Nepal
  32. Kunjika Pathak
  33. Sitara Chowfla, New Delhi
  34. Swarnlata Mahilkar
  35. Pavitra Ramanujam
  36. Indu Harikumar
  37. Hriday Bhatia
  38. Meena Seshu
  39. Vyjayanti Vasanta Mogli, Transgender RTI activist
  40. Nica Dumlao
  41. Free Speech Collective, India
  42. Chayanika Shah
  43. Meghana Rao
  44. LABIA - A Queer Feminist LBT Collective
  45. Subha Wijesiriwardena
  46. Women and Media Collective, Sri Lanka
  47. Priyanka Borpujari, International Christian University (ICU), Tokyo
  48. Internet Democracy Project, India
  49. Anja Kovacs
  50. Yash Sharma
  51. Nishant Shah, ArtEZ University of the Arts, The Netherlands
  52. Pelangi Campaign, Malaysia
  53. Kavita Krishnan, Secretary, AIPWA
  54. Shubhangani Jain
  55. Tanushree Singh
  56. Niranjan Kunwar
  57. Dhyta Caturani
  58. Declan, Malayasia
  59. Sarah Suhail
  60. Liliana il Graziosco Merlo Turan, Bangalore
  61. Nishagulur
  62. Simran Shaikh
  63. Sylvester Merchant
  64. YAANA Bangalore
  65. Veena from Bangalore
  66. Gurukiran Kamath, Bangalore
  67. Pawan Dhall, Kolkata
  68. Gee Imaan Semmalar, University of Kent, UK
  69. Bittu, THITS, WSS, Karnataka Janashakti
  70. Trinetra Haldar Gummaraju, KMC Manipal
  71. Red Dot Foundation, India
  72. Red Dot Foundation Global, USA
  73. ElsaMarie DSilva
  74. Baldeep Grewal, University of Potsdam, Germany
  75. Erika Smith, Mexico
  76. Vedika Singhania, New Delhi
  77. Amla Pisharody
  78. Maya Sharma
  79. Mugdha Singh, Bhopal
  80. Chinmayi S K
  81. Vidyun Sabhaney
  82. Sashwati Banerjee
  83. Manak Matiyani
  84. Body&Data, Nepal
  85. Harish Iyer
  86. Shubha Kayastha
  87. Nadia Nooreyezdan
  88. Rita Baramu
  89. Kabita Bahing Rai
  90. Kavita Raturi
  91. Shripa Pradhan
  92. Shruti Sharada
  93. Swapna Gopinath
  94. Shristi Shrestha
  95. Dana Zhang, FLAME, Taiwan
  96. Grace Banu, Trans Rights Now Collective
  97. Arnika Ahldag, JNU, New Delhi
  98. Sandhya Menon, Bangalore
  99. Alankrita Anand
  100. Sarada Mahesh
  101. Kenny Bhatia
  102. jac sm kee
  103. Anuckriti Garg
  104. Anjali Monteiro
  105. KP Jayasankar
  106. Zarah Udwadia
  107. Tejaswi Chhatwal
  108. LOOM Nepal
  109. Rahil Chatterjee
  110. Sneha Krishnan
  111. Aishwarya Padmaraj
  112. Association for Progressive Communications
  113. Sanket Jadia, New Delhi
  114. Ajita Banerjie
  115. Dhruvi Mody
  116. Pooja Bista
  117. Arishma Shrestha
  118. Amira Subba
  119. Kabita Tamang Lama
  120. Dipesh Khanal
  121. Sarina Shrestha
  122. Srishti Jayana
  123. Manisha Sharma
  124. Mamta Shrestha
  125. Mahindra Singh Danuwar
  126. Ambika Tandon, New Delhi
  127. Hassan Ansari
  128. Gopika Bashi, Bangalore
  129. Garima Pura
  130. Iva Maharjan
  131. Counter Culture, Nepal
  132. Mila Samdub, New Delhi
  133. Anandita Dudeja
  134. Simeen Anjum
  135. FemPositive, India
  136. Suvani Suri
  137. Arshad Hakim, Bengaluru
  138. Angana Sinha Ray
  139. Samreen Shahbaz, Pakistan
  140. Zahra Gabuji
  141. Saleha Rauf
  142. Serene Lim, Malayasia
  143. Jessilina Rana
  144. Yagyadi Acharya
  145. Donglaa
  146. Alia Sinha
  147. Shalmali Shetty, Glasgow/New Delhi
  148. Shreya Sudesh, Chennai
  149. Rohini Maini, Delhi
  150. Arnav Adhikari, Brown University
  151. Mustafa Khanbhai, Goa
  152. Ankuram Sumitra
  153. Riddhi Dastidar, New Delhi
  154. Shawna Finnegan
  155. Smriti Parsheera
  156. Smitha Krishna Prasad
  157. Sharada Annamaraju, New Delhi
  158. Ramya Kannabiran
  159. Neha Mathews
  160. Sheba Chhachhi
  161. Smriti Nevatia
  162. Nick Nugent
  163. Kalyani Menon-Sen
  164. Pakhi Sen, New Delhi
  165. Hidden Pockets Collective, India
  166. Ruth Elwin
  167. Shreya Sridhar
  168. Meghna Singh
  169. Rakhi Sehgal, New Delhi

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Gender. Tech. India

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sex. gender. tech

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Gender. Tech. India

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