Kantawala: More about content removal than about identity of source

Advocate Sujay Kantawala

With the Delhi High Court gagging Facebook from publishing any anonymous allegations on Instagram against artist Subodh Gupta and asking the US-based company to reveal the identity of those behind the Instagram account @herdsceneand, senior lawyer Sujay Kantawala explains what their respective options are.

What protection do the Instagram account runners who aired the accusers' allegations against Subodh Gupta have?
As on date, there is no specific provision in law that stipulates statutory safeguards in relation to the 'rights' or 'protection' of these platforms that air the grievances of victims. The general view is that the same customary (not legally codified) principles that apply to the protection of a journalist's sources apply in this context as well. This is primarily because the offence of defamation (which is the most frequently cited offence in such cases) puts an emphasis on 'publication' and publication is agnostic to whether one is a journalist or an internet platform. The test is whether defamatory content has been published by the entity in question.

Can a court ask 'publishers' or 'publications' (tech giants Google and Facebook in this case) to reveal the identity of accusers?
There have been instances where judicial orders have forced platforms to remove content that was deemed defamatory. In fact, in many jurisdictions, Facebook asks one to upload a copy of a court order if one reports a post as defamatory while seeking its removal.

What can Google, and Facebook do now?
On the other end of the spectrum, in the absence of any judicial order or legislative enactment, there is nothing in the law that would compel the platform/s to reveal any source-related information. Even such judicial or legislative interference would be focused more on the removal of content found to be prima face offensive and is not likely to take the form of a diktat to reveal information; unless issues such as national security were to be involved.

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