Tl;dr
Subodh Gupta, an influential artist, had filed a defamation suit before the Delhi High Court seeking removal of Instagram posts and news reports containing anonymous allegations of sexual harassment against him. He had also sought “token damages” of Rs. 5 crores for the harm caused to his reputation by anonymous allegations which were originally posted on Instagram and subsequently reported on by various news publications. In today’s hearing, the Court permitted the owner of the Instagram handle, Scene and Herd to file a vakalatnama in sealed cover and submit a redacted written statement responding to the defamation suit. The Court also issued notice in the impleadment application filed by the Indian Journalists Union and directed the Plaintiff to respond to the contentions raised in the application regarding overbroad censorship of news reports which adhere to professional journalistic standards of reporting.
Background
During the MeToo movement last year, an anonymous Instagram handle called Scene and Herd began posting accounts of sexual harassment suffered by young women in the art world. In December 2018 and January 2019, the account published two posts containing allegations of sexual harassment against Subodh Gupta. Since Subodh Gupta is a well known public figure, many newspapers, magazines and online news portals reported about the existence of these allegations. A vast majority of the news reports reached out to Subodh Gupta for his side of the story and published his response while informing the public about the anonymous allegations which had surfaced.
Nearly 9 months after the anonymous allegations first surfaced on Instagram, Subodh Gupta filed a defamation suit before the Delhi High Court against Scene and Herd and intermediaries such as Instagram, Facebook and Google. In his defamation suit, he sought removal of the Instagram posts and news reports containing anonymous allegations of sexual harassment against him. Curiously, despite explicitly seeking removal of news reports and terming them as defamatory, Subodh Gupta did not implead any of the journalists, editors or news outlets as defendants in the defamation suit.
Through an order dated 30 September 2019, the Delhi High Court directed Google to de-index all URLs which would be supplied by Subodh Gupta within 72 hours. The list supplied by Subodh Gupta’s lawyers to Google contained 79 URLs, and many of these URLs hosted news reports which only tangentially referred to the allegations against Subodh Gupta in passing. Even among the news reports which were primarily concerned with the allegations against Subodh Gupta, the vast majority adhered to professional journalistic standards of reporting. The news reports clarified that these were anonymous allegations which had surfaced on Instagram and did not present them as proven facts. More importantly, the journalists provided Subodh Gupta an opportunity to respond and included his denial in the article.
What happened in today’s hearing?
In today’s hearing, Senior Advocate, Ritin Rai, appearing for the Indian Journalists Union, urged the Court to consider how its previous order could be misused to gag the press. Since the order dated 30 September 2019 allows Subodh Gupta to seek de-indexing of any URL from the Google search engine without prior judicial scrutiny, it could be used to censor all unfavourable reportage. He used the example of a recent news article in the Indian Express about Facebook’s decision to oppose disclosure of Scene and Herd’s identity and explained that if Subodh Gupta wanted, he could even seek de-indexing of this news article because it mentions that allegations of sexual harassment have been levelled against him. Therefore, judicial scrutiny is necessary to determine if the news articles sought to be removed are actually defamatory or constitute fair reporting.
The crux of the Indian Journalists Union’s application is that journalists cannot be prevented from reporting on allegations against public figures merely because the source of the information is anonymous. This is especially true in the context of sexual harassment because women are often reluctant to disclose their identity because they fear retailiation and further victimization by powerful perpetrators. The MeToo movement was a moment of reckoning after years of silence and stigma, and it highlighted how formal greivance redressal mechanisms had failed survivors of sexual harassment. The press has a right and a duty to report on allegations against persons holding positions of power and such reportage is in the public interest. The public should be allowed to learn about the existence of these anonymous allegations against Subodh Gupta, read his version of events, and then make an informed decision about how much credence they want to give to these allegations.
The owner of the Scene and Heard Instagram handle was represented in court today through their lawyers. The Court allowed the owner of the account to file a vakalatnama in sealed cover and also permitted them to submit a written statement responding to the defamation suit with identifying details redacted. At this stage, the Court has permitted Scene and Herd to contest anonymously to establish why their identity should not be revealed and it is unclear whether anonymity will be preserved throughout the trial. The Court also issued notice in another impleadment application filed by the Culture Workers Support Trust represented by Senior Advocate, Jayna Kothari.
IFF provided drafting and research support for the Indian Journalists Union’s impleadment application with most of the heavy lifting being done by Shreya Munoth, Amritananda Chakravorty, Amala Dasarathi, Sanjana Srikumar and Kritika Bharadwaj. We are also extremely grateful to Senior Advocate, Ritin Rai who argued on behalf of the Indian Journalists Union. The next date of hearing in the case is 22 January 2020, and as always, we will keep you posted.