Delhi High Court
Sasikala Pushpa vs Facebook India And Ors on 2 June, 2020
Equivalent citations: AIR 2020 (NOC) 942 (DEL.), AIRONLINE 2020 DEL 784
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd June, 2020.
+ CS(OS) 510/2016
SASIKALA PUSHPA ..... Plaintiff
Through: Mr. Sushil Bajaj with Mr. Bhavook
Chauhan, Ms. Aasifa Sheikh & Ms.
Praavita Kaushik, Advs.
Versus
FACEBOOK INDIA & ORS. ..... Defendants
Through: Ms. Richa Srivastava with Mr. Shijo
George, Mr. Dhruv Bhatnagar & Ms.
Nayantara Narayan, Advs. for D-1.
Mr. Arun Kathpalia, Sr. Adv. With
Mr. Neel Mason & Ms. Ridhima
Pabbi, Advs. for D-2 & 3.
Mr. Ruchir Mishra with Mr.
M.K.Tiwari & Mr. Abhishek Rana,
Advs. for UOI/D-4.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This suit, though instituted on 29th September, 2016, as existing now
vide amended plaint dated 30th October, 2018, has been instituted against (i)
Facebook Inc., (ii) Google LLC, (iii) YouTube LLC, (iv) Union of India,
Ministry of Information and Broadcasting, and (v) Union of India,
Department of Telecommunications, for (a) permanent injunction restraining
not only the defendants but other persons from publishing, broadcasting,
distributing or disseminating in any form whatsoever any defamatory
material ―including the purported photographs/video/audio messages
CS(OS) 510/2016 Page 1 of 43
referred to in the plaint, relating to or arising from, in connection with any
alleged acts or behavior relatable to the plaintiff; and, (b) mandatory
injunction directing the defendants and all others to remove/delete the false,
concocted and fabricated photographs/videos/audio messages or any other
material aforesaid.
2. It is the case of the plaintiff in the amended plaint aforesaid, (i) that
the plaintiff is a sitting Member of Rajya Sabha, having been nominated in
the year 2014 by All India Anna Dravida Munnetra Kazhagam (AIADMK)
Party; (ii) that the plaintiff in the year 2011, after winning the Local Body
Elections was elected as the Mayor of Toothukudi; (iii) that the plaintiff was
also the Secretary of Women Wing of AIADMK Party; (iv) that on the
plaintiff on 1st August, 2016 informing the Parliament that she had been
slapped by a leader of AIADMK Party at Chennai and was facing death
threats, she was expelled from AIADMK Party and on the same day her
ancestral house in Uvari village in Tamil Nadu was attacked; (v) that a false
complaint dated 8th August, 2016 was also filed by one Ms. Banumati wife
of late Karupasamy against the plaintiff and her family; (vi) that Union of
India exercises regulatory control over the print, electronic and internet
media of the country and have been arrayed as necessary parties to the
present suit to enable this Court to do comprehensive adjudication and pass
necessary directions; (vii) that the plaintiff was continuously receiving
threats and baseless and false allegations were being made against the
plaintiff; one of such threat was of distribution of photographs and video on
social media defaming and embarrassing the plaintiff; (viii) that the persons
threatening the plaintiff wanted the plaintiff to resign from her constitutional
post; (ix) that the plaintiff has learnt that few unknown persons have
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uploaded the plaintiff's photograph/video which is being circulated through
the social media i.e. Facebook, Twitter, YouTube and WhatsApp; the list of
URLs at which the said photographs were being circulated is set out in the
plaint; (x) that on 25th September, 2016, the plaintiff started receiving phone
calls from her friends, acquaintances and family members, of the
photographs of the plaintiff having been uploaded on the social media; (xi)
that the said photographs tarnish the image of the plaintiff; (xii) that such
photographs/videos which are being circulated, do not exist and have been
morphed, fabricated, concocted and forged; (xiii) in paragraph 13 that,
―It is respectfully submitted that while completely denying the
veracity of the purported photograph/video/audio messages
purely as a theoretical surmise even if any photograph/video
were to depict in whole or part is a private act such as
consensual act does not in any manner become culpable.
Further, such a photograph/video would raise no public interest
issue. Publicity to the content of such a photograph/video
would only be for sensational and salacious purpose and would
amount to a gross and irreparable violation of an individual's
privacy and it would be per se defamatory...‖
(xiv) that no attempt of any verification of the allegations or the
authenticity of the alleged photograph/video/audio messages was undertaken
before uploading on the social media; (xv) that uploading of such alleged
photographs/videos/audio messages constitutes a grave and irreversible
violation of rights of the plaintiff to reputation and violates all legally,
judicially established norms of privacy and has caused irreparable damage to
CS(OS) 510/2016 Page 3 of 43
the plaintiff; (xvi) that such acts are also violative of plaintiff's fundamental
rights; (xvii) that the persons uploading the said photographs have failed to
abide by the minimum moral standards of ethics and etiquettes; (xviii) that
the freedom of Press as envisaged under Article 19(1) of the Constitution of
India is not absolute right and is subject to reasonable restrictions under
Article 19(2); excessive adverse publicity beyond fair reporting injure the
reputation of the person and affects fair administration of justice; (xix) that
the plaintiff has a right to maintain dignity, right to live with dignity, right to
preserve reputation, all facets of right to life under Article 21 of the
Constitution of India; and, (xx) in paragraph 33 that,
―The cause of action has arisen in Delhi as the alleged forged,
fabricated and concocted pictures/video being circulated on the
social media is being portrayed as though the same was taken at
plaintiff's residence in Delhi. Furthermore, plaintiff was
informed about the same when she was residing in Delhi. The
false, fabricated and concocted pictures/videos are being
circulated on the internet and social media which is regulated
and controlled by the defendants No.4&5 having their head
office at New Delhi.‖
3. The suit came up first before this Court on 4th October, 2016, when
while issuing summons/notice thereof, vide ex-parte ad-interim injunction
the defendants No.1 to 4 were restrained from publishing, broadcasting,
distributing or disseminating in any manner any defamatory material in the
nature of photographs relatable to the plaintiff and it was clarified that the
defendants were also obliged to take all steps to remove the impugned
CS(OS) 510/2016 Page 4 of 43
content from the website. Vide order dated 17th September, 2018, the
defendants were directed to forthwith remove the material on the URLs
details whereof were given by the plaintiff in the amended plaint.
4. It may be mentioned that that the plaintiff in the suit as originally
filed, though impleaded Facebook, Google and YouTube but not by their
correct description or the correct entities thereof and owing whereto a
number of applications were filed from time to time and substitution of
defendants ordered.
5. Facebook Inc. USA has filed a written statement, pleading (a) that
Facebook Inc. is an ‗intermediary' as defined under Section 2(1)(w) of the
Information Technology Act, 2000 (IT Act) and is omitted from any liability
arising from third party content posted to the Facebook Services as per
Section 79 of the IT Act; (b) that the said Section 79(1) has an overriding
effect by virtue of Section 81 of the IT Act; (c) that Facebook Inc. as an
intermediary has no role in sharing, transmitting, selecting the receiver of
any transmission and/or selecting or modifying the information contained in
any information of third party; (d) that there is no averment in the plaint
regarding any failure of Facebook Inc. to comply with Section 79(2) or
79(3) of the IT Act and does not even allege that the protection under
Section 79 of the IT Act is not available to Facebook Inc.; (e) that as per the
dicta of the Supreme Court in Shreya Singhal Vs. Union of India (2015) 5
SCC 1, the liability of an intermediary arises only where the intermediary
upon receiving actual knowledge from a valid Court order or otherwise, that
unlawful acts relatable to Article 19(2) of the Constitution of India are going
to be committed, fails to expeditiously remove or disable access to such
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material; (f) that an intermediary is not obliged to scan all information being
hosted on its portal, for infringement of the rights of all those persons who
have at any point of time complained to the intermediary; (g) that every
webpage has a link address on the internet i.e. a Uniform Resource Locator
(URL) which is a standarised device to identify and locate content and other
resources located on the internet; (h) that the plaintiff, in the plaint has
identified only some of the impugned content by URL and out of which only
two pertain to Facebook Inc. and which had since been actioned by
Facebook Inc. in compliance with the order of this Court; it is otherwise
impractical for Facebook Inc. to locate or identify the remaining impugned
content; (i) that Facebook Inc., as on 30th June, 2018, had over 2.23 billion
active users of its Facebook Service worldwide and every day billions of
pieces of content are posted and shared on the Facebook Service; it is
impractical and not possible for the Facebook Inc. to sift through all the
aforesaid content to find the content impugned by the plaintiff; (j) that
Facebook Inc. is neither the author nor the publisher of any third party
content including the content impugned in this suit; (k) that as per policy of
Facebook Service, it has reporting tools available to report objectionable
content on Facebook Service including potential violation of a person's
privacy rights concerning their image on Facebook; if a person believes
content available on Facebook Service to be violatable of his/her privacy
rights, can report that content by using the online reporting tool; however
Facebook Inc. is obliged to remove and disable access to only such content
which has been directed by a Court order or by a notified Government
agency to be removed; thus, even if any content is reported via online tool,
Facebook Inc. as intermediary, would not be required to remove access to
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the same without a Court order or direction from an authorized Government
agency; (l) that the suit thus as far as against Facebook Inc. is not
maintainable; (m) that there is no possibility of Facebook Inc. misusing,
distorting, disseminating or publishing the impugned content to the
detriment of the plaintiff; and, (n) that the other contents of the plaint are
denied.
6. The defendant No.2 Google Inc. and defendant No.3 YouTube LLC
have also filed a joint written statement, pleading (i) that defendant No.3
YouTube LLC is a subsidiary of defendant No.2 Google LLC; (ii) that the
said defendants have complied with the order dated 17 th September, 2018 by
taking down / disabling of web links / URLs set out in the plaint; (iii) that
the plaintiff in the plaint has also mentioned a URL linking to the general
image search page for all image results when the name of the plaintiff is
entered as a ‗search term' in the ‗search box' on the Google Search Engine
by an internet user; the plaintiff did not provide a specific URL for any
specific image result appearing on the said general search result page; (iv)
that the defendants No.2&3 as per their policy disable any third party
content from their platform if an appropriate direction is passed by the Court
directing removal of such content by providing the specific URLs where the
plaintiff's right have been held to be violated; (v) however the plaintiff is
not entitled to any injunctions against the said defendants as sought and the
injunctions as sought are vague, excessive and incapable of being complied
with and also go contrary to the established principles of defamation law as
well as the provisions of the IT Act and the Information Technology
(Intermediary Guidelines) Rules, 2011; (vi) that the defendants No.2&3 are
intermediaries (the detailed pleas of defendants No.2&3 in this respect being
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the same as in the written statement of defendant No.1 Facebook Inc., are
not being repeated here); (vii) that the plaintiff has no cause of action
against the defendants No.2&3 without first showing any non-compliance
by the defendants No.2&3 of any Court order and/or of the provisions of
Section 79 of the IT Act; (viii) that the injunctions as sought would also
imply a pre-publication restraint on all materials/contents available on the
internet that allegedly defame the reputation of the plaintiff and which
would be contrary to the settled law on pre-publication injunctions; (ix) that
Google Search Engine is a free internet based search service using which
any internet user can search for any pre-existing third party data and
websites available on the internet; to do so, an internet user can type its
search query in the ‗search box' and based on such a search query, the
Google Search Engine indexes and links to third party websites and other
information that either images or is relevant to the search query; (x) that the
defendant No.2 Google LLC merely performs the task of indexing
information that is already available on independent third party websites that
are beyond the control and supervision of defendant No.2; the defendant
No.2 is neither the host nor the publisher of the third party content displayed
on the Google Search Engine; (xi) that defendant No.2 Google LLC has no
technological means by which the search results on Google Search Engine
can be restricted, since such content and information is actually created,
originated, hosted and managed by third party and is available on such third
party websites; (xii) that under the Google terms of service, a user is
categorically informed that Google Services display some content that is not
of Google and that such content is the sole responsibility of the entity that
makes it available; (xiii) that an internet user can report about the search
CS(OS) 510/2016 Page 8 of 43
results for violation of any of their rights, using a complaint form available
and pursuant to which such content is reviewed and in appropriate cases
immediately taken down; (xiv) that even if the Court were to direct a Search
Engine to remove the links containing allegedly defamatory content within
its search results, the same would not ensure that the defamatory content
itself is taken down from its source website or that the same links would not
appear as search results on any other innumerable social media sharing
websites and/or Search Engines available on the internet; (xv) that YouTube
is an online video screening platform on which users can freely upload and
share videos / audio visual content with other users; these videos are third
party content and/or neither created nor owned or controlled by the
defendants No.2&3; YouTube is merely a platform where videos can be
uploaded and accessed on the internet on ‗as is where is basis'; (xvi) that
YouTube Community Guidelines also inform the users about the kind of
content that is prohibited on YouTube; (xvii) that under YouTube term of
service, every user/uploader categorically represents that he/she owns all
rights and all necessary terms in the content he/she uploads; the user further
categorically represents and warrants that no part of the video being
uploaded is illegal or violates third party rights; even after uploading, all
rights and liabilities in relation to the content so uploaded remain with the
respective uploader and YouTube LLC simply provides a platform where
such videos can be accessed on ‗as is where is basis'; (xviii) that the
selection/description of the video and the tags relevant to searching a video
are all provided by the uploader and not by defendants No.2&3; (xix) that
the uploader alone has specific knowledge of content of the video he/she
uploads; (xx) that the defendants No.2&3 have neither created nor facilitated
CS(OS) 510/2016 Page 9 of 43
or endorsed the content impugned in the suit; (xxi) that for defamation
related to complaints under the Indian Law, the defendants No.2&3 require
a Court order directing removal of such search result / video from a specific
identifiable URL where the search result / video is located; (xxii) that the
plaint discloses no cause of action against the defendants No.2&3 and the
defendants No.2&3 are not necessary or proper parties to the suit; (xxiii)
that the contents of the plaint are not in the knowledge of the defendants
No.2&3 and are denied; (xxiv) that reference in the written statement itself
is made to Shreya Singhal supra; and, (xxv) that Sahara India Real Estate
Corporation Limited Vs. Securities and Exchange Board of India (2012)
10 SCC 603 and to Reliance Petrochemicals Ltd. Vs. Proprietors of Indian
Express Newspaper (1988) 4 SCC 592 do not apply to intermediaries as the
defendants No.2&3 are.
7. No replications to the aforesaid written statements have been filed by
the plaintiff.
8. The suit came up before the undersigned on 14th January, 2019, when
finding that no person who according to the plaintiff is responsible for
putting up the impugned content had been impleaded as defendant and
further finding that no direction had been sought against Facebook Inc. or
against Google LLC and YouTube LLC or against any other portal for
disclosing the identity of such person, it was observed that the plaintiff
cannot fight a proxy battle without impleading the person who has posted
the impugned photographs and other content removal whereof was sought in
the plaint. The counsel for the plaintiff, on enquiry during the hearing on
14th January, 2019, as to whom the plaintiff suspected, stated that the
CS(OS) 510/2016 Page 10 of 43
plaintiff does not suspect anyone and there are a lot of people inimical to the
plaintiff because the plaintiff was a Member of Parliament from Rajya
Sabha. The counsel for the plaintiff during the hearing on 14th January,
2019 handed over the photographs to which objection was taken in the suit.
However on going through the same, it was prima facie observed that there
was nothing objectionable in the photographs. It was further observed in the
order dated 14th January, 2019 that the order of removal of any content
posted on the portals / e-platforms, cannot be made merely at the asking,
without a case therefor being made out. It was enquired from the counsel
for the plaintiff, under which provision of law, the plaintiff was entitled to
seek removal of the contents / photographs put up by others, even if found to
be objectionable. The counsel for the plaintiff appearing on 14 th January,
2019 however only referred to the interim order dated 4th October, 2016 and
could not reply to the queries. Observing that the plaintiff, to be entitled to
final relief was required to justify the interim order and could not shy away
from answering the queries of the Court, on the request of the counsel for
the plaintiff, the hearing was adjourned to 27th February, 2019.
9. On 27th February, 2019, the counsel for the plaintiff was heard on the
queries contained in the order dated 14th January, 2019. The plaintiff along
with the plaint has only filed four photographs in a sealed envelope. The
first photograph appeared to be from a newspaper or a click shot of a news
channel, in turn having three photo frames and one of which is of the
plaintiff alone and the other two besides the plaintiff also depict a man in
what appears to be a private garden of a house. The second photograph is
again of the plaintiff with the said man inside a room and also shows half
eaten food and an empty bottle of water. The third photograph is a repeat of
CS(OS) 510/2016 Page 11 of 43
one of the three frames in the first photograph i.e. of the plaintiff and the
man in the private garden of a house. The fourth photograph is of the said
man sitting on a chair and holding a cell phone with the plaintiff bending
behind him and pointing something in the phone, again in a private garden
of a house. I may mention that none of the said photographs would classify
as obscene or showing the plaintiff and the man in any compromising or
scandalizing position, though indeed show both smiling and happy in the
company of each other. At least in one of the frames of the first photograph,
the plaintiff and the man appear to be posing for the photograph though
other photographs may fall in the genre of those taken without the
knowledge of the plaintiff and the man. I may clarify that the plaintiff is
fully clothed in all the photographs and the man, in two of the frames of the
first photograph is bare chest but which is nothing out of ordinary in the
State to which the plaintiff belongs.
10. The counsel for the plaintiff during the hearing on 27th February, 2019
also handed over a large number of other photographs on the URLs which
vide interim order in the suit had been ordered to be blocked; however the
said photographs were / have not been filed on record. The said
photographs also however do not fall in the genre of obscene or having any
sexual overtones.
11. The counsel for the plaintiff during the hearing on 27th February, 2019
further informed, though again not pleaded, that the man shown in the
photographs along with the plaintiff belongs to Dravida Munnetra
Kazhagam (DMK) Party, a political rival of AIADMK Party to which the
plaintiff belongs and is a member of; that the plaintiff is married to another
CS(OS) 510/2016 Page 12 of 43
person. The counsel for the plaintiff further fairly agreed that though the
photographs did not qualify as obscene but contended that they were in the
circumstances of the political rivalry and the plaintiff being married to
another man, qualify as defamatory and pose a threat to the membership of
the plaintiff of Rajya Sabha as a nominee of AIADMK. It was contended
that the photographs were not genuine. Alternatively, it was argued that the
photographs even if were held to be genuine and taken with the consent of
the plaintiff, uploading thereof on the social media platforms violated the
privacy of the plaintiff.
12. It was on 27th February, 2019 enquired from the counsel for the
plaintiff that since it was the case of the plaintiff that the photographs were
morphed and were defamatory of the plaintiff because showed the plaintiff
in the company of a man other than her husband and who was also her
political rival, whether not the said man who also figured in the
photographs, removal whereof was sought, was a necessary party to the
present suit. It was enquired, whether not the man shown in the photographs
had an equal stake in removal or not wanting removal of the photographs
and how could this Court direct removal equivalent to obliteration of
photographs showing persons other than the plaintiff, without hearing the
said person/s.
13. Though the counsel for the plaintiff on 27th February, 2019 stated that
he did not think that the plaintiff would like to implead the said person as a
defendant to the suit but further stated that he would obtain instructions.
14. The factum of the plaintiff belonging to AIADMK Party, a regional
political party of the State of Tamil Nadu and though as per own averments
CS(OS) 510/2016 Page 13 of 43
is widely known in the State of Tamil Nadu in comparison to Delhi, having
instituted this suit not in Tamil Nadu where the plaintiff has a reputation but
in Delhi where the plaintiff does not enjoy the reputation as claimed to be
enjoyed by her in Tamil Nadu also shows an attempt of the plaintiff to not
allow the subject litigation itself to become news in Tamil Nadu and to
surreptitiously obtain the order for removal of undesirable content from the
internet.
15. It was on 27th February, 2019 further enquired from the counsel for
the plaintiff that since the plaintiff was a political person representing her
State i.e. Tamil Nadu, in Rajya Sabha in Delhi, whether not the photographs
concerning her which are admittedly not obscene but are claimed to be
defamatory and showing her in the company of her political rival,
constituted information which public at large has a right to know about their
representatives in Parliament and how can the Court restrain such news from
being disseminated.
16. The counsel for the plaintiff then again sought adjournment to obtain
instructions. I may however record that the aforesaid happenings during the
hearing on 27th February, 2019 are not recorded in detail in the order dated
27th February, 2019 as it was felt that if the plaintiff was choosing to not
pursue the present suit owing to the damage / further damage which it is
likely to cause to not only the matrimony but also to the political career of
the plaintiff, as appeared from the submissions made in the hearing, the said
damage should not be done by recording the same in the order of that date.
While adjourning the hearing to 1st April, 2019, Mr. Arun Kathpalia, senior
counsel appearing for defendants No.2&3 and which defendants were
CS(OS) 510/2016 Page 14 of 43
seeking their deletion, was requested to, besides appearing on behalf of
defendants No.2&3, as an Amicus Curiae also assist this Court on the
questions which had arisen during the hearing.
17. The counsel for the plaintiff, on 1st April, 2019 stated that his
instructions were that the plaintiff did not want to implead the man also
figuring in the photographs removal of which is sought in the present suit.
The counsel for the plaintiff however stated that the plaintiff would make an
application to implead as John Doe the person who had uploaded the
impugned photographs on the internet and that the plaintiff, to prove that the
photographs were morphed, besides herself would examine an expert. It
was thus contended that an opportunity for leading evidence be granted.
The counsel for the plaintiff, during the hearing also drew attention to
Clause 3 of the Intermediary Guidelines but upon the senior counsel for the
defendants No.2&3 pointing out that the same had been read down in
Shreya Singhal supra, did not press further on the said aspect.
18. The counsel for the plaintiff, on 1st February, 2019 also handed over a
compilation of:
(I) my judgment dated 1st June, 2018 in CS(OS) No.291/2018
titled Pepsico India Holdings Pvt. Ltd. Vs. Facebook Inc., to contend
that therein ex-parte direction was issued to block the URLs
containing disparaging video, with further direction to block URLs
containing disparaging video or other content on intimation by the
plaintiff;
(II) order dated 10th October, 2018 of this Court in CS(OS)
No.394/2018 titled Patanjali Ayurved Ltd. Vs. Meera Singh,
CS(OS) 510/2016 Page 15 of 43
contending that again therein direction was issued to Facebook and
other defendants to take down / remove or block the mentioned
URLs;
(III) Shilpa S. Shetty Vs. Magna Publications Co. Ltd. AIR 2001
Bombay 176, to contend that the same holds that third parties do not
have right to publish about the plaintiff's private life;
(IV) R. Rajagopal Vs. State of Tamil Nadu (1994) 6 SCC 632, to
contend that the same holds right to privacy to be implicit in Article
21 of the Constitution of India and a citizen has a right to safeguard
the privacy of own, family, marriage, procreation, motherhood, child-
bearing etc. and that in matters not relevant to the discharge of duties,
a public officer enjoys the same protection as any other citizen;
(V) Selvi J. Jayalalithaa Vs. Penquin Books India (2013) 54 PTC
327 Madras, to contend that the same holds that prior consent and
reasonable verification before publication to be necessary and further
holds that private life not involved with the public activities enjoys
privacy; and,
(VI) Kanimozhi Karunanidhi Vs. Thiru. P. Varadarajan
MANU/TN/2339/2018, to contend that the same, relying on Justice
K.S. Puttuswamy Vs. Union of India (2017) 10 SCC 1 case holds that
an individual has a right to protect reputation from being unfairly
harmed and that matters not related to the public life cannot be
published.
19. Per contra, the senior counsel for the defendants No.2&3 again
referred to Shreya Singhal supra.
CS(OS) 510/2016 Page 16 of 43
20. Though part judgment qua the submissions made, was dictated in the
Court on 1st April, 2019 itself, but remained to be completed and is being
pronounced now.
21. I may at the outset record, that the a nine Judge Bench of the Supreme
Court in Justice K.S. Puttuswamy supra was constituted to determine
whether privacy is a constitutionally protected value. Prior thereto, the
existence of a fundamental right of privacy was in doubt in view of M.P.
Sharma Vs. Satish Chandra, District Magistrate, Delhi
MANU/SC/0018/1954 and Kharak Singh Vs. State of Uttar Pradesh
MANU/SC/0085/1962 containing observations that the Indian Constitution
did not specifically protect the right to privacy. However, now the Nine
Judge Bench has authoritatively held (i) that the right of privacy is a
fundamental right; (ii) that it is a right which protects the inner sphere of the
individual from interference from both State and Non-state actors and allows
the individuals to make autonomous life choices; (iii) technology has made
it possible to inter a citizen's house without knocking at his/her door and
this is equally possible both by the State and Non-state actors; (iv) it is an
individual's choice as to who enters his house, how he lives and in what
relationship; (v) that the privacy of the home must protect the family,
marriage, procreation and sexual orientation which are all important aspects
of dignity; (vi) that if the individual permits someone to enter the house it
does not mean that others can enter the house; the only check and balance is
that it should not harm the other individual or affect his/her right; (vii) that
the only permitted exception is where there is a countervailing public
interest which in particular circumstances is strong enough to outweigh it;
(viii) that the question to be asked is, was it necessary and proportionate for
CS(OS) 510/2016 Page 17 of 43
the intrusion to take place, for example, in order to expose illegal activity or
to prevent the public from being significantly mislead by public claims
made by the individual concern or what it necessary because the information
would make a contribution to a debate of general interest; and, (ix) that the
Court, in order to decide a case, must carry out a balancing operation,
weighing the public interest in maintaining confidence against a
countervailing public interest favouring disclosure.
22. Having perused the record and having heard the counsels on the
queries raised during the hearing on 14th January, 2019, and being fully
conscious that the suit is still at a pre-issue stage, I am of the opinion that the
following questions arise for adjudication:
(A) Whether the suit is entitled to be put to trial on the plea of the
plaintiff, of the four photographs aforesaid, as well as other
photographs verbally argued to have been put on the internet, being
not genuine and being morphed, forged and fabricated; and,
(B) If the above question is answered in favour of the plaintiff,
whether the claim of the plaintiff against the defendants, for removal
of the said photographs from the internet and/or for blocking of the
access to the said photographs is required to be put to trial.
(The answer to the above question would entail adjudication of,
whether on the averments in the plaint and the documents filed
therewith, a case of defamation of the plaintiff is made out and
whether any special law or principles are to be applied qua
defamation through the medium of internet.)
CS(OS) 510/2016 Page 18 of 43
23. Having also researched the law on the subject, besides considering the
judgments cited by the counsels, I hold the plaintiff to be failing in both the
questions above. My reasons therefor are as under:
(I) As far as the claim of the plaintiff, of the impugned
photographs showing the plaintiff with a man, having been morphed,
forged and fabricated is concerned, the same, on a reading of the
plaint is found to be half-hearted, vague and without the requisite
particulars. The counsel for the plaintiff during the hearing admitted
that the claim of the plaintiff to the reliefs is not based on the
impugned photographs being obscene. It is not so pleaded in the
plaint either. The claim, in the pleadings and during the hearing, has
been premised on the photographs being defamatory because of the
photographs showing the plaintiff with a politician belonging to
DMK, a rival political party to the political party to which the plaintiff
belongs and because of showing the plaintiff, an elected
representative of the people, in the company of a man other than her
husband. However, there is not a whisper in the plaint of what is
argued. In the plaint, neither has the identity of the man shown with
the plaintiff in the photographs been disclosed nor is the factum of the
said man belonging to the rival political party to the political party to
which the plaintiff is affiliated nor of the plaintiff being married, is
pleaded. It is only vaguely pleaded that the photographs are
defamatory of the plaintiff and tarnish the image of the plaintiff,
without disclosing how. Once the plaintiff has described herself as a
politician and an elected representative of the people i.e. a public
persona, mere presence of a man, even if other than the husband of
CS(OS) 510/2016 Page 19 of 43
the plaintiff, alongside the plaintiff in photographs, can by no
standard of a reasonable person be said to be defamatory of the
plaintiff, as the plaintiff in the course of her political journey is bound
to come in contact not only with women but also men. Thus, the
photographs of the plaintiff, I repeat, a politician, with a man other
than husband, can by any stretch of imagination be considered by any
person of average intellect and moral standard, to be lowering the
esteem in which the plaintiff is held or as tarnishing the image of the
plaintiff. In Pepsico India Holdings Pvt. Ltd., Patanjali Ayurved
Ltd., Shilpa S. Shetty, Selvi J. Jayalalithaa and Kanimozhi
Karunanidhi supra relied upon by the counsel for the plaintiff the
impugned content was per se defamatory. It cannot be so said of the
photographs impugned in the suit which are per se not defamatory but
which become defamatory owing to the man shown alongside the
plaintiff therein being a political rival of the plaintiff. However, as
aforesaid, there is no plea to the said effect.
(II) As discussed by me above, the photographs appear to be taken
inside a house and/or in the private garden of a house. Had the
photographs been morphed / fabricated, the plaintiff would have
pleaded the identity of the person, described the reason for the
plaintiff and the said man being together in a house, given the address
of the house depicted in the photographs, pleaded that others also
were present on the occasion and who had been deleted from the
photographs or pleaded that the plaintiff had never met the said man
or that the face of the man had been placed on the body of another
man, in the photographs or that the body of the female shown in the
CS(OS) 510/2016 Page 20 of 43
photographs was not hers and only her face had been added on body
of some other woman or given such like particulars. The plaintiff has
not pleaded any such thing. Rather, while invoking the territorial
jurisdiction of this Court, it is pleaded that the house shown in the
photographs was the plaintiff's residence at Delhi. The plaintiff, if
the photographs were indeed morphed, would have pleaded that the
man shown in the photographs had never visited the house of the
plaintiff at Delhi or given the reason for his visit. In the absence of all
the said particulars, the plea of the photographs being morphed,
forged and fabricated is not a material one within the meaning of
Order XIV Rule 1 of the Code of Civil Procedure, 1908 (CPC) to
invite the framing of an issue. The argument of the counsel for the
plaintiff, that the plaintiff to prove that the photographs are morphed,
will examine herself and an expert has also been made at the spur of
the moment inasmuch as it has not been explained how images
appearing on the internet can be opined by any expert in the subject to
be morphed. To my knowledge, no definite opinion can be given by
any expert on the basis of the said images. Moreover, no foundation
for such expert opinion has been laid and no report of any expert has
been filed inspite of the suit having been instituted four years back.
The stage for filing documents is long past gone and once the plaintiff
has not filed any expert opinion, the counsel for the plaintiff when
quizzed how the plea of the photographs being morphed will be
proved, cannot make any such argument.
(III) Not only are the pleas of the photographs being morphed vague
as aforesaid but the half-hearted nature thereof is also evident from
CS(OS) 510/2016 Page 21 of 43
the alternative plea of the plaintiff, of the same even if genuine, being
liable to be removed / blocked for the reason of being defamatory of
the plaintiff and which aspect will be discussed hereunder.
(IV) I am therefore of the opinion that the claim of the plaintiff, of
the photographs being morphed, forged and fabricated, does not
deserve to be put to trial. Issues are not to be framed mechanically on
all the pleas in the pleadings, howsoever vague and frivolous.
Reference in this regard can be made to Precision Steels Vs. Reeta
Salwan (2013) 205 DLT 695, Kawal Sachdeva Vs. Madhu Bala
Rana 2013 SCC OnLine Del 1479, Adarsh Kumar Puniyani Vs.
Lajwanti Piplani 2015 SCC OnLine Del 14022, Abbott Healthcare
Pvt. Ltd. Vs. Raj Kumar Prasad (2018) 249 DLT 220, Anil Kumar
Vs. Devender Kumar 2019 SCC OnLine Del 8782, Bhavna Khanna
Vs. Subir Tara Singh 2019 SCC OnLine Del 6978 and Satish Kumar
Vs. Purshottam Maheshwari MANU/DE/2741/2019. It has also been
held that the Court is not required to at the cost of other deserving
cases, put a suit to trial, if on the pleadings finds the plaintiff to have
not laid any foundation for succeeding therein.
(V) There is another reason for which the claim of the plaintiff of
the photographs being morphed, forged and fabricated does not
deserve to be put to trial i.e. the reason of non-joinder of necessary
parties. The plaintiff has instituted the suit only against Facebook
Inc., Google LLC and YouTube LLC which are but the electronic
platforms on which the photographs has been uploaded and who as
per the pleas in the written statement are intermediaries / search
CS(OS) 510/2016 Page 22 of 43
engine within the meaning of Section 2(1)(w) of the IT Act and of
which pleas in their written statement, there is no denial neither by
filing a replication nor during the hearing. For a plaintiff to succeed
on a plea of morphing, forgery or fabrication of photographs, the
alleged forger / fabricator or the person who has morphed the
photographs, is necessary party and without the said person, no
finding of the photographs being morphed, forged and fabricated can
be returned. As observed in the order dated 14 th January, 2019, a
plaintiff cannot be permitted by a Court to fight a mock litigation i.e.
by filing the suit not against the wrong doer but against those who are
not interested or would not be interested in contesting the claim of the
plaintiff. The grievance of morphing, forging and fabricating the
photographs of the plaintiff is against the doer of such acts. It is not
the case of the plaintiff that Facebook Inc., Google LLC or YouTube
LLC have morphed, forged and fabricated the photographs. It is also
not the case of the plaintiff that the defendant Union of India who in
any case is described only as a necessary and proper party and against
which no relief has been claimed, has done so.
(VI) The counsel for the plaintiff, being unable to reply to the
aforesaid, during the hearing on 27th February, 2019 stated that the
person who morphed, forged and fabricated the photographs was not
impleaded because his/her identity was not known. Upon being
reminded that the law provides a recourse thereto by impleading the
unknown person as John Doe / Ashok Kumar and by seeking
disclosure of identity thereof from the electronic platforms, it was
stated that the steps in that regard will be taken. However the fact
CS(OS) 510/2016 Page 23 of 43
remains that till the hearing on 1st April, 2019, no steps were taken.
Moreover, it is not the function of the Court to make out a case for the
plaintiff. It is the plaintiff / her counsel who have to, before
approaching the Court, ensure that the wrong doer, relief against
whom is sought or without whom the relief cannot be granted, is
impleaded. It has not been so done in the present case. As aforesaid,
more than four years have lapsed since the institution of the suit and
the said claim would now also be barred by limitation. In fact, had
the grievance of the plaintiff been that the photographs are morphed,
forged and fabricated, a declaration to the said effect would have been
sought and which relief has also not been sought in the plaint.
(VII) I am also of the view that ordinarily if the photographs showing
the plaintiff with a man, according to the plaintiff had been morphed,
forged and fabricated and the plaintiff was suing for relief on the said
basis, the first person to be impleaded would have been the subject
man inasmuch as it is that man only who was best in a position to
comment on the genuineness of the photographs. Even if the said
man had pleaded that the photographs were genuine and it was the
case of the plaintiff that he was falsely pleading so, the plaintiff would
have had an opportunity to cross-examine him to prove the falsity of
his plea. Strangely the plaintiff instituted the suit without even
impleading the said man. As aforesaid, even his identity is not
pleaded in the plaint. Even when during the hearing on 27 th February,
2019 it was so put to the counsel for the plaintiff, the counsel for the
plaintiff fairly stated that in his opinion the plaintiff would not be
wanting to implead the said man and confirmed so on 1 st April, 2019,
CS(OS) 510/2016 Page 24 of 43
after obtaining instructions. From the failure/refusal of the plaintiff to
implead the said man as defendant to the suit, adverse inference arises
against the plaintiff i.e. that the plea of the plaintiff, of the
photographs showing her with the said man are morphed, forged and
fabricated, is untrue and false. Once it is so, the question of putting
the said issue to trial does not arise.
(VIII) Thus, from whichever way one looks at, the answer to question
No.(A) above is against the plaintiff. The plaintiff has not made out a
case for putting her claim, of the impugned photographs being
morphed, forged and fabricated, to trial.
(IX) I now proceed to discuss the alternative plea of the plaintiff
that, even if the photographs are genuine, the plaintiff is entitled to
removal thereof for the reason of the same being defamatory.
(X) In this context also, question arises, whether the plaintiff alone
is entitled to seek the relief of removal from an electronic platform
and/or obstruction of the access thereto of a photograph showing the
plaintiff with another. In my view, in a suit for removal of a
photograph showing the plaintiff and another, the said another is a
necessary and proper party, inasmuch as obliteration of the content
affects the rights of said another also. The Court would not grant a
relief affecting others without such others being before it and without
hearing them. It is not the case of the plaintiff that the plaintiff had
agreed to being photographed with the said man on the condition that
the said photograph will not be published. It is also not the case that
the photographs were surreptitiously taken without the consent of the
CS(OS) 510/2016 Page 25 of 43
plaintiff. Rather, it is also not the case that the photographs are of the
private life of the plaintiff. Without making out any case, the Court
has been approached on the premise that any content on the internet
pertaining to the plaintiff is removable at the asking of the plaintiff
and which is not so as discussed herein below.
(XI) Though IT Act as enacted, to provide legal recognition for
transactions carried out by means of electronic data interchanged and
other means of electronic communications, which involve the use of
alternatives to paper based methods of communication and storage of
information and by which Facebook Inc., Google LLC and YouTube
LLC are inter alia regulated, in Section 66A thereof provided as
under:
―[66A. Punishment for sending offensive messages
through communication service, etc.-Any person who
sends, by means of a computer resource or a
communication device,-
(a) any information that is grossly offensive or has
menacing character; or
(b) any information which he knows to be false, but
for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer
resource or a communication device;
(c) any electronic mail or electronic mail message
for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such
messages, shall be punishable with imprisonment
for a term which may extend to three years and
with fine.
CS(OS) 510/2016 Page 26 of 43
Explanation.-For the purposes of this section, terms
―electronic mail‖ and ―electronic mail message‖ means
a message or information created or transmitted or
received on a computer, computer system, computer
resource or communication device including attachments
in text, image, audio, video and any other electronic
record, which may be transmitted with the message.]‖
and in the Information Technology (Intermediary Guidelines)
Rules, 2011 provided as under:
―3. Due diligence to he observed by intermediary.--The
intermediary shall observe following due diligence while
discharging his duties, namely:--
(1) The intermediary shall publish the rules and
regulations, privacy policy and user agreement for access-or
usage of the intermediary's computer resource by any person.
(2) Such rules and regulations, terms and conditions or
user agreement shall inform the users of computer resource not
to host, display, upload, modify, publish, transmit, update or
share any information that--
(a) belongs to another person and to which the
user does not have any right to;
(b) is grossly harmful, harassing, blasphemous
defamatory, obscene, pornographic, paedophilic,
libellous, invasive of another's privacy, hateful, or
racially, ethnically objectionable, disparaging, relating
or encouraging money laundering or gambling, or
otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or
other proprietary rights;
(e) violates any law for the time being in force;
CS(OS) 510/2016 Page 27 of 43
(f) deceives or misleads the addressee about the
origin of such messages or communicates any
information which is grossly offensive or menacing in
nature;
(g) impersonate another person;
(h) contains software viruses or any other
computer code, files or programs designed to interrupt,
destroy or limit the functionality of any computer
resource;
(i) threatens the unity, integrity, defence, security
or sovereignty of India, friendly relations with foreign
states, or public order or causes incitement to the
commission of any cognisable offence or prevents
investigation of any offence or is insulting any other
nation.
(3) The intermediary shall not knowingly host or publish any
information or shall not initiate the transmission, select the receiver of
transmission, and select or modify the information contained in the
transmission as specified in sub-rule (2):
provided that the following actions by an intermediary shall not
amount to hosing, publishing, editing or storing of any such
information as specified in sub-rule: (2) --
(a) temporary or transient or intermediate storage of
information automatically within the computer resource as an
intrinsic feature of such computer resource, involving no
exercise of any human editorial control, for onward
transmission or communication to another computer resource;
(b) removal of access to any information, data or
communication link by an intermediary after such information,
data or communication link comes to the actual knowledge of a
person authorised by the intermediary pursuant to any order or
direction as per the provisions of the Act;
(4) The intermediary, on whose computer system the
information is stored or hosted or published, upon obtaining
knowledge by itself or been brought to actual knowledge by an
CS(OS) 510/2016 Page 28 of 43
affected person in writing or through email signed with electronic
signature about any such information as mentioned in sub-rule (2)
above, shall act within thirty six hours and where applicable, work
with user or owner of such information to disable such information
that is in contravention of sub-rule (2). Further the intermediary shall
preserve such information and associated records for at least ninety
days for investigation purposes.
(5) The Intermediary shall inform its users that in case of non-
compliance with rules and regulations, user agreement and privacy
policy for access or usage of intermediary computer resource, the
Intermediary has the right to immediately terminate the access or
usage lights of the users to the computer resource of Intermediary and
remove noncompliant information.
(6) The intermediary shall strictly follow the provisions of the
Act or any other laws for the time being in force.
(7) When required by lawful order, the intermediary shall
provide information or any such assistance to Government Agencies
who are lawfully authorised for investigative, protective, cyber
security activity. The information or any such assistance shall be
provided for the purpose of verification of identity, or for prevention,
detection, investigation, prosecution, cyber security incidents and
punishment of offences under any law for the time being in force, on a
request in writing staling clearly the purpose of seeking such
information or any such assistance.
(8) The intermediary shall take all reasonable measures to
secure its computer resource and information contained therein
following the reasonable security practices and procedures as
prescribed in the Information Technology (Reasonable security
practices and procedures and sensitive personal Information) Rules,
2011.
(9) The intermediary shall report cyber security incidents and
also share cyber security incidents related information with the Indian
Computer Emergency Response Team.
(10) The intermediary shall not knowingly deploy or install or
modify the technical configuration of computer resource or become
party to any such act which may change or has the potential to change
CS(OS) 510/2016 Page 29 of 43
the normal course of operation of the computer resource than what it
is supposed to "perform thereby circumventing any law for the time
being in force:
provided that the intermediary may develop, produce, distribute
or employ technological means for the sole purpose of performing the
acts of securing the computer resource and information contained
therein.
(11) The intermediary shall publish on its website the name of
the Grievance Officer and his contact details as well as mechanism by
which users or any victim who suffers as a result of access or usage of
computer resource by any person in violation of rule 3 can notify their
complaints against such access or usage of computer resource of the
intermediary or other matters pertaining to the computer resources
made available by it. The Grievance Officer shall redress the
complaints within one month from the date of receipt of complaint.‖
but upon the vires thereof being challenged inter alia on the
ground of penalizing speech and expression, in Shreya Singhal supra,
Section 66-A was struck down in entirety, being violative of Article
19(1)(a) of the Constitution of India and not saved under Article 19(2)
and Rule 3 sub-rule (4) of Intermediary Guidelines Rules supra was
read down. It was further held that Section 79 as under:
―79. Exemption from liability of intermediary in certain
cases.-(1) Notwithstanding anything contained in any
law for the time being in force but subject to the
provisions of sub-sections (2) and (3), an intermediary
shall not be liable for any third party information, data,
or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to
providing access to a communication system over
which information made available by third parties
is transmitted or temporarily stored or hosted; or
CS(OS) 510/2016 Page 30 of 43
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission,
and
(iii) select or modify the information
contained in the transmission;
(c) the intermediary observes due diligence while
discharging his duties under this Act and also
observes such other guidelines as the Central
Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or
aided or induced, whether by threats or promise or
otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being
notified by the appropriate Government or its
agency that any information, data or
communication link residing in or connected to a
computer resource controlled by the intermediary
is being used to commit the unlawful act, the
intermediary fails to expeditiously remove or
disable access to that material on that resource
without vitiating the evidence in any manner.
Explanation.-For the purposes of this section, the
expression ―third party information‖ means any
information dealt with by an intermediary in his capacity
as an intermediary.‖
also has to be read down, to mean that an intermediary is not
entitled to the protection under Section 79(1) only if, upon receiving
actual knowledge from a Court order or on being notified by the
appropriate Government or its agency, that unlawful acts relatable to
Article 19(2) are going to be committed, then fails to expeditiously
CS(OS) 510/2016 Page 31 of 43
remove or disable access to such material. It thus follows that merely
because any information on the internet is offensive or causes
announce, inconvenience, danger etc. to a person does not entitle that
person to call upon the intermediary to remove that
information/content or to disable access thereto and the intermediary
is not liable to do so. It further follows that such a person is required
to either approach the designated governmental agency or the Court
for issuance of such a direction to the intermediary and the Court will
issue such a direction only if the person concerns makes out a case of
the information being actionable in law and not merely because the
information may be an irritant without being actionable in law.
(XII) The plaintiff has sought order from this Court for removal of
the impugned photographs alleging that the unlawful act of
defamation is thereby committed against the plaintiff. What thus falls
for consideration is, whether on the contents of the plaint, a case of
defamation is made out.
(XIII) As aforesaid, the plaintiff in the plaint has not disclosed, as to
how the photographs showing her with another man, even if inside the
house or a garden of the house, tarnish her image or are defamatory of
her, particularly considering that the plaintiff is a politician and an
elected representative of the people and who in a daily routine is
bound to meet men as well as women including in her house and also
at times break-bread with them. Rather, photographs of politicians
eating with public including persons from the disadvantaged strata of
the society, are the order of the day, to build a connect with the
CS(OS) 510/2016 Page 32 of 43
classes. It is only during the hearing that the reason why the said
photographs are perceived to be tarnishing her, image and defaming
her have been disclosed i.e. of the plaintiff being married to another
man and the man shown in the photographs belonging to a rival
political party. However, the said disclosure during the hearing
cannot take the place of a pleading and thus it has but to be held that
the plea of defamation, in the context and facts concerning the
plaintiff, is vague and without any particulars. Once it is so, again the
Court is not compelled to put the same to trial.
(XIV) However, even if what is disclosed in the arguments were to be
considered, the photographs cannot be said to be violating the privacy
of the plaintiff or defamatory of the plaintiff.
(XV) R. Rajagopal supra cited by the counsel for the plaintiff
himself holds, that (i) public figures like public officials often play an
influential role in ordering society; (ii) as a class, the public figures
have, as the public officers have, access to mass-media
communication, both to influence the policy and to counter-criticism
of their views and activities; (iii) a citizen has a legitimate and
substantial interest in the conduct of such persons and the freedom of
press extends to engaging in uninhibited debate about the involvement
of public figures in public issues and events; (iv) freedom of press
flows from the freedom of speech and expression guaranteed by
Article 19(1)(a); but the said right is subject to reasonable restrictions
placed thereon by an existing law or a law made after the
commencement of the Constitution in the interest of or in relation to
CS(OS) 510/2016 Page 33 of 43
several matters set out therein; (v) decency and defamation are two of
the grounds mentioned in Article 19(2); law of torts providing for
damages for invasion of the right to privacy and defamation and
Section 499/500 of Indian Penal Code are the existing law saved
under Article 19(2); (vi) what is called for is a proper balancing of the
freedom of press and the said laws consistent with the democratic way
of life ordained by the Constitution; and, (vii) over the last few
decades, constant vigilance over exercise of governmental power by
the press and the media is the demand of the day; it is essential for a
good Government.
(XVI) In this context mention may also be made of:
(A) Khushwant Singh Vs. Maneka Gandhi AIR 2002 Delhi
58--A Division Bench of this Court in this case was concerned
with balancing of competing interest of a well-known author to
publish his autobiography where reference has been made to
personal life of a public figure and the public figure's claim for
protection against such publication under her rights of privacy.
It was held, that the freedom of press extends to engaging any
inhibited debate about the involvement of public figures in
public issues and comments; that a close and microscopic
examination of the private lives of public men is a natural
consequence of holding of public offices; that what is good for
a private citizen who does not come within the public gaze may
not be true of a person holding public office; that what a person
holding public office does within the four walls of his house
CS(OS) 510/2016 Page 34 of 43
does not totally remain a private matter; however the scrutiny
of public figures by media should not also reach a stage where
it amounts to harassment of public figures and their family
members--they must be permitted to live and lead their life in
peace; but the public gaze cannot be avoided, which is
necessary corollary of their holding public offices; persons
holding public office have to show greater tolerance for
comments and criticism; they must not be thin skinned in
reference to the comments made on them and even where they
know that the observations are undeserved and unjust, they
must bear with them and submit to be misunderstood for a time;
even what may be the private lives of the public figures,
become matters of public interest; the two competing interests
have to be balanced.
(B) People's Union for Civil Liberties Vs. Union of India
(2003) 4 SCC 399 holds (i) that right to participate in the affairs
of the polity of the country, by casting vote at the time of
election would be meaningless unless the voters are well
informed about all sides of the issues, in respect of which they
are called upon to express their views by casting their votes; (ii)
that disinformation, misinformation, non-information, all
equally create an uninformed citizenry which would finally
make democracy a mobocracy and farce; (iii) that exposure to
public gaze and scrutiny is one of the surest means of achieving
a clean and healthy administration; (iv) that a citizen has a right
to safeguard the privacy of his own, his family, marriage,
CS(OS) 510/2016 Page 35 of 43
procreation, motherhood, child-bearing and education among
other matters; none can publish anything concerning the above
matters without his consent - whether truthful or otherwise and
whether laudatory or critical; (v) that position may, however, be
different, if a person voluntarily thrusts himself into
controversy or voluntarily invites or raises a controversy--this
is for the reason that once a matter becomes a matter of public
record, the right to privacy no longer subsists and it becomes a
legitimate subject for comment by press and media among
others; (vi) that the right of a voter to know the biodata of a
candidate is the foundation of democracy; (vii) that the old
dictum - let the people have the truth and the freedom to
discuss it and all will go well with the Government - should
prevail; (viii) that voters' fundamental right to know the
antecedents of a candidate is independent of statutory rights
under the election law; a voter is first citizen of this country and
apart from statutory rights, he is having fundamental rights
conferred by the Constitution; members of a democratic society
should be sufficiently informed so that they may cast their
votes intelligently in favour of persons who are to govern them;
(ix) that the right to know about the candidate standing for
election has been brought within the sweep of Article 19(1)(a);
(x) that the right to information so evolved by the Court is
qualitatively different from the right to get information about
public affairs or the right to receive information through the
press and electronic media; and, (xi) that the right to
CS(OS) 510/2016 Page 36 of 43
information of the voter/citizen is enforced against an
individual who intends to become a public figure and the
information relates to his personal matters.
(C) Indu Jain Vs. Forbes Incorporated
MANU/DE/9527/2007, holding (i) that being photographed in
a public street is taken to be one of the ordinary incidents of
living in a free community, the real issue was whether
publicising the content of the photograph would be offensive;
the balance in such a case has to be arrived at between the
public right to information and whether it would justify
dissemination or publication or photograph taken covertly and
without authorisation; (ii) that once the information is identified
as ‗private', the Courts are required to balance the claimant's
interest in keeping the information private against the
countervailing interest of the recipient in publishing it; (iii) that
a public figure who makes very public a statement about a
matter in respect of which even a public figure would ordinarily
be entitled to privacy would be attracting or seeking publicity
and it would be in public interest to show the said statement, if
false, to be false; (iv) that a public figure though is entitled to
have his privacy respected but should recognise that because of
his public position he has to expect and accept that his or her
actions would be more closely scrutinised by the media; (v) that
conduct which, in the case of a private individual, would not be
the appropriate subject of comment, would be the proper
subject of comment in the case of a public figure; such a person
CS(OS) 510/2016 Page 37 of 43
might be a legitimate subject of public attention whether or not
he had quoted publicity; (vi) that in drawing up a balance sheet
between the respective interests of the parties, courts should not
act as censors or arbiters of taste--this is the task of others; if
there is not a sufficient case for restraining publication the fact
that a more lurid approach will be adopted by the publication
than the Court would regard as acceptable is not relevant; (vii)
that if the contents of the publication are untrue the law of
defamation provides prohibition; (viii) that newsworthiness has
been defined broadly to include not only the matters of public
policy, but any matter of public concern, including the
accomplishments, everyday lives and humanity involvements
of famous people; and, (ix) however, if the publicity is so
offensive as to constitute a sensational preying into private lives
for its own sake, it serves no legitimate public interest and is
not deserving of its protection. In the facts of that case
injunction was refused.
(D) CPIO, Supreme Court of India Vs. Subhash Chandra
Agarwal (2009) 162 DLT 135, holds (i) that a private citizen's
privacy right is undoubtedly of the same nature and character as
that of a public servant; (ii) that yet, inherent in the situation of
the latter is the premise that he acts for the public good, in the
discharge of his duties, and is accountable for them; (iii) that
the character of protection, afforded to the two classes--public
servants and private individuals, is to be viewed from this
perspective; (iv) that the nature of restriction on the right to
CS(OS) 510/2016 Page 38 of 43
privacy is therefore of a different order; in the case of private
individuals, the degree of protection afforded is greater; in the
case of public servants, the degree of protection can be lower,
depending on what is at stake; and, (v) that if an important
value in public disclosure of personal information is
demonstrated, in the particular facts of a case, by way of
objective material or evidence, furnished by the information
seeker, the protection afforded may not be available.
(E) India TV Independent News Service Pvt. Ltd. Vs.
Yashraj Films Pvt. Ltd. 192 (2012) DLT 502 (DB), holding
that the law pertaining to privilege, privacy and libel would
guide us that for public figures even their personal affairs could
be a matter of public interest and as against common citizens,
weaker defences are available to public figures and celebrities
in relation to their personal affairs.
(F) Nirmaljit Singh Narula Vs. Yashwant Singh
MANU/DE/4341/2012, holding that the plaintiff in that case,
who claimed himself to be a ‗Baba' and Spiritual Guide and
through his Samagams and telecast of his discourses through
various T.V. Channels, like public figures is under a constant
public and media gaze, should not be sensitive and rather
should be open to criticism and scrutiny; the filing of
defamation suit though a right of the plaintiff could not be
allowed to become a lethal weapon in sabotaging the freedom
of the press. It was however also held that it takes years and
CS(OS) 510/2016 Page 39 of 43
decades to build reputation or goodwill but any irresponsible
act on the part of the media can result in ruining the image and
reputation of such person which may cause incalculable and
irreversible damage to the prestige and reputation of such a
person; if such people commit any unduly act or indulge into
any nefarious or illegal activity or do not maintain self restrain
or commit any act demeaning their position and status, then
later on they cannot complain that they stand defamed,
disreputed or ridiculed; the media is watching them 24X7 as
they owe a duty to the society to expose such people indulging
into illegal, immoral, unruly acts.
(G) Pushp Sharma Vs. D.B. Corp. Ltd. 2018 SCC OnLine
Del 11537, holding (i) that though the new age media,
especially the electronic media and internet, posts greater
challenges, that per se ought not to dilute valuable right of free
speech which is the lifeblood of democracy; (ii) that the
salutary and established principle in issues that concerned free
speech are that public figures and public institutions have to
fulfil a very high threshold to seek injunctive relief in respect of
alleged libel or defamation; (iii) that those who fill public
positions must not be too thin-skinned in respect of references
made upon them; and, (iv) that the mere frame of the relief--of
permanent injunction does not alter the principle; the cause of
action on which the plaintiffs based their suit being alleged
defamation, the ordinary principles of injunctive relief, having
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regard to the nature of the subject matter i.e. restraint of speech,
would be the same.
(H) Sunil Sachdeva Vs. Owner of Domain Name
WWW.CJR7.Com 2019 SCC OnLine Del 11168, where
myself, on a conspectus of numerous precedents, concluded (i)
that one's right to know may invade another's right to privacy
and breach of confidentiality; (ii) that the former right has to be
harmonized with the need for personal privacy, confidentiality
of information and effective governance; (iii) that the two rights
have to be balanced and distinction was made between
―something which is of interest to the public‖ and ―something
which is in public interest‖; and, (iv) that public may be
interested in private matters with which the public may have no
concern and need to know; however such interest of the public
in private matters would repudiate and directly traverse the
protection of privacy and there is a right to shield oneself from
unwarranted access to one's personal information and to protect
facets of reputation, honor etc. associated with the right to
privacy.
(I) Supreme Court of India Vs. Subhash Chandra Agarwal
2019 SCC OnLine SC 1459, holding that (i) public interest,
sometimes criticised as inherently amorphous and incapable of
a precise definition, is a time tested and historical conflict of
rights test which is often applied in the right to information
legislation to balance right to access and protection of the
CS(OS) 510/2016 Page 41 of 43
conflicting right to deny access; (ii) comparison or balancing
exercise of competing public interests and privacy rights has to
be undertaken; and,(iii) right of the public to information on the
assets of the Judges of the Supreme Court was held to not
impinge upon the right to privacy of the Judges.
(XVII) As would follow on the conspectus of the aforesaid case law,
this Court is required to balance the right claimed by the plaintiff of
privacy qua whom she meets at her residence, has to be balanced with
the right of the public to know the identity of the person whom the
plaintiff meets and hobnobs with, behind closed doors.
(XVIII) Considering the fact that the plaintiff is a politician,
participating in the electoral process and is a representative of the
people, the people and/or the electorate certainly have a right to know
that the plaintiff behind closed doors meets and hobnobs a man to
whom she is not married and particularly a man who belongs to a
political party which is a rival of political party to which the plaintiff
belongs. The plaintiff, as a representative of people and whether
performing executive function or functions as a Legislator, would be
issuing orders / directions and/or participate in law making, regulating
the conduct of human beings and in the said context the electorate has
a right to know of the behind curtains meetings of the plaintiff with a
man other than her husband and particularly a man belonging to a
political party which the plaintiff, before the public criticises or
opposes in the elections. If such meetings with member of a rival
political party, which the plaintiff wants to remain hidden from the
CS(OS) 510/2016 Page 42 of 43
public, are not of interest to the public for the purposes of maintaining
purity of administration and law making, little else would qualify as
of public interest. The plaintiff, of course cannot be permitted to
publically oppose and criticise a political party to whose members she
is otherwise close. Or, at least public has an interest in knowing the
true state of affairs. For the said balancing act, no trial is required,
particularly when the plaintiff, in the plaint, has not even pleaded
what was argued on 27th February, 2019.
(XIX) Thus, in the facts of the present case, the public interest in
knowing the meeting of the plaintiff at her residence with a man
belonging to a rival political party far outweigh the private interest of
the plaintiff of keeping the same hidden from public eyes. The
plaintiff has not pleaded the public interest in her said meetings and/or
in keeping the same hidden.
24. Thus, the suit as framed and as argued is not found to contain any
material plea on trial whereof the plaintiff may be found to be entitled to the
reliefs claimed. The plaintiff, as aforesaid, is not found entitled to any order
against Facebook Inc., Google LLC and YouTube LLC to remove the
photographs and/or to block access to them. Once it is so, the suit must fail
and is dismissed with costs payable equally to Facebook Inc. on the one
hand and Google LLC and YouTube LLC together on the other hand, of
Rs.2 lacs each.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
JUNE 02, 2020/‗bs' CS(OS) 510/2016 Page 43 of 43