Delhi High Court has made a critical observation with regards to anonymous social media handles naming and shaming Men under the ongoing #MeTooIndia Campaign. The citing has come in the current case of artist Subodh Gupta seeking removal of the allegedly defamatory content against him on social media.
A small, yet significant step towards Male Gender Issues.
- The Instagram account, which goes by the name @herdsceneand, had published sexual harassment allegations against Subodh Gupta, in October 2018
- Following the accusations, Gupta filed a Rs 5 crore defamation suit against the Instagram user
- On December 13, 2018, @herdsceneand had uploaded a post on Instagram where a woman had listed multiple instances of Subodh’s alleged inappropriate behaviour
- After this, another woman narrated of similar experience and that too was uploaded in the form of an anonymous post
- At the time, Subodh had stepped down as the co-curator of the Serendipity Arts Festival in Goa, and denied the allegations against him, and called the allegations against him as “false and fabricated”
- The Delhi High Court had allowed the anonymous Instagram user who published sexual harassment allegations against Gupta to maintain interim anonymity in the defamation case filed by him
- The counsel for the Instagram account told the court that the account holder is willing to join the case in court provided anonymity is maintained, since revealing the identity may cause irreparable loss to the victims of sexual harassment who have shared their stories
- In the interim, the court permitted the Instagram account handle to file in a sealed cover its reply and vakalatnama (document empowering a lawyer to act for and on behalf of his client) to maintain its anonymity at this stage and furnish a redacted copy of its response to Gupta
- The court had earlier directed social media giants Google, Facebook and Instagram to remove the anonymous posts containing sexual harassment accusations against him that emerged during last year’s #MeToo movement
- It had also restrained @Herdsceneand from posting any content relating to Gupta on its account
- It had directed ‘Herdsceneand’, Instagram LLC, Facebook Inc, Google Inc and Google India Pvt Ltd to “forthwith remove/ take down the defamatory posts/ articles/ all content pertaining to Gupta and block certain URLs/ web links”
- The court had also directed Facebook Inc, which controls Instagram LLC, to furnish before the court in a sealed envelope the particulars of the person/ entity behind the Instagram Account ‘@Herdsceneand’
Delhi High Court Observations On Whether Anonymity Should Be Allowed In #MeToo Cases:
Justice Rajiv Sahai Endlaw has observed,
Persons making allegedly defamatory or motivated statements cannot be permitted to indulge in “Guerilla Warfare” and be the judge in their own case by seeking anonymity and not giving an opportunity to the accused to defend.
Maintaining anonymity of identity in a litigation appears to run counter to Indian jurisprudence of adversarial nature of judicial proceedings, fairness of procedure and equality of opportunity to all parties, the high court said.
The judge said that even the counsel was sounding reluctant to spell out his case in the open court. He said,
Allowing the defendant No 1 [account holder] to contest the claim of the plaintiff [Gupta], not only knowing the case but also knowing identity of the plaintiff, while making the plaintiff press his claim against defendant No 1 without knowing the entire defence of defendant No 1 and without even knowing identity of defendant No 1, will amount to treating the two unequally and which is against the very tenets of our jurisprudence. Disclosing the identity to the court would not redress the anomaly.
It said that even in the past, whenever the courts have proceeded to adjudicate relying on material shared by one party only with the court and concealing it from the opposite party, it has created unnecessary suspicion on the merits of the decision and invited criticism, diminishing the faith of public in the decision making process and judiciary.
The account holder, “without disclosing identity and wearing the veil of a virtual persona”, has published statements concerning Gupta, which according to him are defamatory of him.
The nature of the controversy of this suit is such where identity of the account holder is material for Gupta to properly pursue his case.
The plaintiff, without knowing the identity of defendant No 1, cannot effectively prove the same to be false, motivated and defamatory. Shadow boxing is not permitted in litigation. The plaintiff cannot be compelled to fight ghosts.
I have in some recent orders held that persons making such statements cannot be permitted to be a judge in their own case, by making accusations and by not giving an opportunity to accused to defend the accusation.
The defence of the accused may include factors concerning the accuser. The accuser cannot be permitted to indulge in guerilla warfare against the accused.
The court said even in cases where the law permits ‘in camera hearing’, both parties are entitled to full knowledge of each other and each other’s case.
In our opinion, this Delhi High Court statement must set a precedent for all fake or anonymous handles that have been the cause of Men being shamed and losing their jobs/career even before being proven guilty by the court of law. While #MeToo has surely alerted many men who have been real sexual predators, one sided verdict against any man must not be permitted.