A September 24 ruling from a local Bengaluru court issuing ex parte blocking orders against X user ‘TheLiverDoc’, aka Dr Abby Philips has caused outrage and concern among the netizens. Social media platform X (formerly Twitter), suspended Philips’ account on a legal demand by Himalaya Wellness Company, a pharmaceutical company.
Many took to the social media platform calling the order “disproportionate”, “broad”, “vague”, and bordering censorship. Advocate Gautam Bhatia posted that the order was passed in ignorance of basic principles of defamation laws and should be set aside, even as senior advocate Sajan Poovayya said suspending Philips’ allegedly defamatory account was disproportionate.
Himalaya Wellness Company, a pharmaceutical company, and makers of the popular Liv52 tablets filed a defamation suit before a local Bengaluru court accusing Philips of making “derogatory and defamatory remarks” against it. Philips’ a Kerala-based hepatologist has often spoken out against alternative medicine calling out its practitioners and angering the Ayush Ministry as well.
While advocate Govind Manoharan of Godiyal & Manoharan Chambers argues that this is a classic case of a SLAPP suit or strategic lawsuits against public participation – a ploy/tactic by people or companies to prevent further discourse on a particular topic; advocate Pranjal Kishore said the advent of digital age and social media interaction, we will see many more cases like these as the probability of dissemination of information increases manifold online.
What is Cyberdefamation?
In this increasingly digital world, defamation has taken on a new avatar – Cyber defamation.
What is cyber defamation? Many are quick to point out that cyber defamation is not a legal term and cannot be found in law; it is just a nomenclature for the rise in defamation cases arising from posting stuff online.
“Cyber defamation is defamation too. Some people may use this term. But defamation is essentially of two types: libel – the published word, and slander – which is the spoken word,” advocate S Prasanna explained.
According to X's transparency report, as of July, the social media platform blocked 51 accounts that are embroiled in defamation cases.
Senior advocate Pinky Anand told BOOM that the "accessibility and reach of the internet have brought with it the baggage of cyber defamation”.
Advocate Chitranshul Sinha is of the opinion that “Every alleged defamation is now cyber defamation by default.” “It's one of the fallouts of living online most of our waking hours. Even defamatory content in print finds its way online somehow or the other,” he added.
“The major difference between cyber defamation and any other defamation is simply the mode of dissemination of information and its reach. The fundamentals of what constitutes defamation remains the same,” advocate Pranjal Kishore said.
Senior Advocate Sanjay Hegde—who is also fighting to get his X account (formerly Twitter) unblocked—cautioned that one can expect many more cases like the ones against Philips closer to elections since most senior journalists have started their own YouTube channels.
Blocking orders 'disproportionate'
Legal experts have criticised the Bengaluru court order for being "disproportionate". The court’s jurisprudence on the use of interim injunctions in a catena of cases is based on the satisfaction of a three-tier test. The seeker of such injunction must establish: a) prima facie case in their favour; b) irreparable loss and injury (if the injunction is not granted); c) balance of convenience lies in their favour, Anand explained.
“However, in Philips’ case, a reading of the order demonstrates that it is completely devoid of reasons and prima facie indicates judicial overreach,” advocate Radhika Roy said.
Kishore said that he has "serious doubts about the correctness of the injunction". He observed that issuing ex parte orders is not new and not disproportionate depending on the case at hand. Courts consider ex parte orders in several civil suits depending on the facts of the case. "For example, in demolition cases, the urgency of the matter justifies ex parte orders,” he added.
“In civil suits, temporary injunctions are often issued on the first day in the absence of the opposing party,” Roy added.
Anand argued that the defence against defamation must be balanced with the individual’s right to free speech. “The problems faced however are that cyber defamation is instantaneous and far-reaching and the damage done without issuing immediate interim injunctions would be irreparable,” she added.
“This looks like a classic SLAPP Suit,” Manoharan told BOOM. “This is also the set up of a David v/s Goliath situation where a big guy is going after the small guy,” he added. In my opinion, labelling the case as "cyber defamation" just makes it more descriptive, Manoharan said.
Many experts also pointed out that Philips could have been asked to delete his tweets first, or X could have been directed to suspend the offending tweets, before taking the extreme step of blocking his account altogether.
“In the end, the exceptional technology and its exceptional speed render traditional legal remedies ineffective in securing the ends of justice,” Anand said.
“Without crafting remedies that enforce the judicial will and waiting until the result of the trial in Court, a plaintiff will be left to play wack-a-mole defamatory content, forced to run pillar to post to enforce omnibus orders. Interim injunctions have its place, freedom of speech has its place, and the law's place is to decide how this plays out,” she said.
Blocking orders have a 'chilling effect'
Kishore observed that such blocking orders will have a chilling effect on the people. A major aspect of what we have come to term as cyber defamation is a) its jurisdiction and b) given the reach of social media - the damages sought by the seeker, he added. Kishore referred to the Revant Himatsingka case.
Himatsingka, aka 'Foodpharmer' on social media, was sent a legal notice after his reel on the alleged harmful effects of Bournvita went viral. The 'Foodpharmer' account on social media was suspended as well. In response, Himatsingka took down the video and issued an unconditional apology.
Sinha said cyber defamation is not a new trend. "In the cases against the former Editor of Outlook by management university IIPM, even Google was made a defendant. There are many cases where people choose courts in obscure towns to file defamation cases against online content because technically some part of the cause of action can be considered to have arisen in any location where someone reads anything online. So rather than saying it's catching on, I would say it's the default mode now," he added.
The dissemination of information online has widened a court's jurisdiction, Kishore said, adding that in traditional defamation cases, an aggrieved party would file cases in courts where they lived making it difficult for the alleged defamer. "With the global reach of information that is now online, the jurisdiction has vastly increased and I won't be surprised if in future we see cases filed in courts outside India," he added.
Roy said the blocking order in Philips' case was reminiscent of the concerns raised when Twitter challenged in the Karnataka High Court against the government's blocking order of certain accounts. "In that case, Twitter had argued that wholesale blocking of accounts could not be allowed, and only the content that had a nexus with the objection posed by MeitY could be taken down," she said.
The Karnataka High Court, however, rejected that argument and held that wholesale blocking was allowed under Section 69A of the IT Act.
"During that time, apprehension arose as to whether it would lead to the disproportionate taking down of accounts, and how a chilling effect would be instituted with people preferring to not upload contentious content in the fear of their entire account being taken down," Roy observed. The case of Dr. Abby Philips aka The Liver Doctor is a great example, she said, because that is exactly what has happened and that is potentially the interpretation of the High Court order which will employed by other courts as well.
