How defamation suits against survivors throttle our digital rights and freedoms
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,
- Point of View, India
- Bishakha Datta
- Smita Vanniyar
- Devanshi Vaid
- Srinidhi Raghavan
- Lainie Yeoh
- Digital Rights Foundation, Pakistan
- Teesta
- hvale vale
- Parsa Sajid
- Tigist Hussen
- Shivani Lal
- Cathy
- Savi Vanka
- Jenny Radloff
- Radha Mahendru
- Marcia DCunha
- Paromita Vohra
- Agents of Ishq, India
- Sukhnidh Kaur
- Archismita Choudhury
- Anahita S.
- Queerabad, India
- Being Feminist, India
- Tanzim Wahab, Curator, Bengal Foundation, Bangladesh
- Prachi Sharma
- Nikita Patodia
- Gayatri Khandhadai
- Mira Malhotra
- Geeta Seshu
- NayanTara Gurung Kakshapati, Photo Kathmandu, Nepal
- Kunjika Pathak
- Sitara Chowfla, New Delhi
- Swarnlata Mahilkar
- Pavitra Ramanujam
- Indu Harikumar
- Hriday Bhatia
- Meena Seshu
- Vyjayanti Vasanta Mogli, Transgender RTI activist
- Nica Dumlao
- Free Speech Collective, India
- Chayanika Shah
- Meghana Rao
- LABIA - A Queer Feminist LBT Collective
- Subha Wijesiriwardena
- Women and Media Collective, Sri Lanka
- Priyanka Borpujari, International Christian University (ICU), Tokyo
- Internet Democracy Project, India
- Anja Kovacs
- Yash Sharma
- Nishant Shah, ArtEZ University of the Arts, The Netherlands
- Pelangi Campaign, Malaysia
- Kavita Krishnan, Secretary, AIPWA
- Shubhangani Jain
- Tanushree Singh
- Niranjan Kunwar
- Dhyta Caturani
- Declan, Malayasia
- Sarah Suhail
- Liliana il Graziosco Merlo Turan, Bangalore
- Nishagulur
- Simran Shaikh
- Sylvester Merchant
- YAANA Bangalore
- Veena from Bangalore
- Gurukiran Kamath, Bangalore
- Pawan Dhall, Kolkata
- Gee Imaan Semmalar, University of Kent, UK
- Bittu, THITS, WSS, Karnataka Janashakti
- Trinetra Haldar Gummaraju, KMC Manipal
- Red Dot Foundation, India
- Red Dot Foundation Global, USA
- ElsaMarie DSilva
- Baldeep Grewal, University of Potsdam, Germany
- Erika Smith, Mexico
- Vedika Singhania, New Delhi
- Amla Pisharody
- Maya Sharma
- Mugdha Singh, Bhopal
- Chinmayi S K
- Vidyun Sabhaney
- Sashwati Banerjee
- Manak Matiyani
- Body&Data, Nepal
- Harish Iyer
- Shubha Kayastha
- Nadia Nooreyezdan
- Rita Baramu
- Kabita Bahing Rai
- Kavita Raturi
- Shripa Pradhan
- Shruti Sharada
- Swapna Gopinath
- Shristi Shrestha
- Dana Zhang, FLAME, Taiwan
- Grace Banu, Trans Rights Now Collective
- Arnika Ahldag, JNU, New Delhi
- Sandhya Menon, Bangalore
- Alankrita Anand
- Sarada Mahesh
- Kenny Bhatia
- jac sm kee
- Anuckriti Garg
- Anjali Monteiro
- KP Jayasankar
- Zarah Udwadia
- Tejaswi Chhatwal
- LOOM Nepal
- Rahil Chatterjee
- Sneha Krishnan
- Aishwarya Padmaraj
- Association for Progressive Communications
- Sanket Jadia, New Delhi
- Ajita Banerjie
- Dhruvi Mody
- Pooja Bista
- Arishma Shrestha
- Amira Subba
- Kabita Tamang Lama
- Dipesh Khanal
- Sarina Shrestha
- Srishti Jayana
- Manisha Sharma
- Mamta Shrestha
- Mahindra Singh Danuwar
- Ambika Tandon, New Delhi
- Hassan Ansari
- Gopika Bashi, Bangalore
- Garima Pura
- Iva Maharjan
- Counter Culture, Nepal
- Mila Samdub, New Delhi
- Anandita Dudeja
- Simeen Anjum
- FemPositive, India
- Suvani Suri
- Arshad Hakim, Bengaluru
- Angana Sinha Ray
- Samreen Shahbaz, Pakistan
- Zahra Gabuji
- Saleha Rauf
- Serene Lim, Malayasia
- Jessilina Rana
- Yagyadi Acharya
- Donglaa
- Alia Sinha
- Shalmali Shetty, Glasgow/New Delhi
- Shreya Sudesh, Chennai
- Rohini Maini, Delhi
- Arnav Adhikari, Brown University
- Mustafa Khanbhai, Goa
- Ankuram Sumitra
- Riddhi Dastidar, New Delhi
- Shawna Finnegan
- Smriti Parsheera
- Smitha Krishna Prasad
- Sharada Annamaraju, New Delhi
- Ramya Kannabiran
- Neha Mathews
- Sheba Chhachhi
- Smriti Nevatia
- Nick Nugent
- Kalyani Menon-Sen
- Pakhi Sen, New Delhi
- Hidden Pockets Collective, India
- Ruth Elwin
- Shreya Sridhar
- Meghna Singh
- Rakhi Sehgal, New Delhi
