Retweets are not endorsements, as many Twitter users frequently state in their bios. Can one be protected from criminal culpability by this disclaimer? Can retweeting, sharing or forwarding offensive posts attract criminal liability?
KPS Malhotra, the deputy commissioner of the Delhi Police, has stated that one must take personal responsibility for retweets and that even endorsing a viewpoint on social media becomes the viewpoint of the individual sharing or retweeting it.
“If you endorse a view on social media, it becomes your view. Retweeting and saying I don’t know, doesn’t stand here. Responsibility is yours. Time does not matter, you only have to retweet and it becomes new. Police action was on the basis of when matter came to our cognisance,” the DCP remarked.
In this explanatory article, we explore law requirements and significant court rulings on the issue of whether retweeting or forwarding a social media post constitutes a crime in and of itself.
What Does Indian Law Say?
Although there is no clear provision in Indian law that makes retweeting, sending, or sharing posts on social media a criminal offense, there are several clauses in the Information Technology Act and the Indian Penal Code that provide for criminal culpability.
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Section 67 of the IT Act allows for penalties for posting or transmitting obscene information in electronic form. The imprisonment could be prolonged to three years and fine and in case of a second or further conviction, five years and extended fine.
Similar to this, section 67A of the Act outlines penalties for publishing or transmitting digitally any content that shows youngsters in sexually explicit acts. It offers a fine and up to five years in prison as punishment. Seven years and an increased fine in the event of a second or subsequent conviction.
In addition to the IT Act, the Indian Penal Code contains specific sections that may be used against a person when any offensive or disparaging messages are sent or shared online, such as Sections 153A, 153B, 292, 295A, 499, etc. These offenses include promotion of communal hatred, obscenity, hurting of religious sentiments and defamation.
What Have Indian Courts Said?
Aam Aadmi Party leader Raghav Chadha submitted a petition with the Delhi High Court in 2017 challenging summonses issued to him in a defamation case brought by then-Union Minister Arun Jaitley, but the court dismissed the petition and left it up to the trial court to determine whether retweeting would subject one to liability under Section 499 of the IPC (defamation).
Justice Sangita Dhingra noted that while retweeting immediately puts the contents of the original tweet to the attention of the followers of the individual who does so, it is up to the court to decide whether doing so would result in criminal culpability.
In 2018, the Madras High Court issued a decision stating that forwarding or sharing a message on social media constitutes acceptance and endorsement of the statement. The remarks were made after anticipatory bail was denied for former journalist and BJP leader S Ve Shekher, who is accused of sharing a disparaging Facebook post about female journalists.
“No one has any right to abuse women and if done it is a violation of rights. When calling a person with community name itself is a crime, using such unparliamentarily words is more heinous. Words are more powerful than acts, When a celebrity-like person forwards messages like this, the common public will start believe it that this type of things are going on”, the Court said.
On June 1, 2018, the Apex Court dismissed Shekher’s special leave petition challenging the judgment after the State asserted that a chargesheet had been filed. As a consequence, the court ordered Shekher to appear before the trial court so he may apply for standard bail. As a result, the bigger question of whether forwarding a post is illegal is still up for debate.
A Look On International Decisions
Although Indian courts have not made a conclusive ruling on the matter, certain international courts have attempted to do so.
In the 2014 case of Jose Jesus M. Disini v. The Secretary of Justice, the Supreme Court of the Philippines considered several aspects of online exchanges and engagements, including Facebook and microblogging platforms like Twitter. The Court also decided whether online actions like liking, commenting on, or spreading a defamatory message are considered to be aiding or abetting under Philippine law.
The Court noted that, with the exception of the original author of the contested statement, those who clicked Like, Comment, and Share effectively expressed their “knee-jerk sentiments” in response to the original posting.
“Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or thousands of responding “Friends” or “Followers” in the criminal charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the challenged posting? The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to cyberspace libel. Unless the legislature crafts a cyber-libel law that takes into account its unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in violation of their constitutionally-guaranteed right to freedom of expression,” the Court observed.
A 40-year-old man was fined in 2017 by Zurich District Court in Switzerland for liking a Facebook post that accused an animal advocate of being anti-Semitic and racist. The Court noted that by selecting the “Like” button, the defendant had made the offensive message his own and given it his explicit endorsement.
In 2015, OLG Frankfurt (a German court) made a ruling regarding the issue of whether a sharer endorses the content they have shared in such a way that it can be taken as their own statement. Contrary to the “like” function, the sharing function, according to the court, has no further value save the simple circulation of content.
It is obvious that the Courts will assess whether or not retweeting or forwarding social media items constitutes a crime dependent on the specific facts and circumstances of each case because there is no definitive authoritative ruling or direct statutory provision on the matter.
Defamation liability under the Penal Code must be established by the Trial Court as a first Court of instance, according to the Delhi High Court’s reasoning in the case of Raghav Chadha.
The legal framework must fill in the legal ambiguities in the current rules if retweeting, sharing, or forwarding other people’s social media posts should be declared a crime. This would prevent law enforcement agencies from abusing the laws in any way. It is possible that the retweeter or sharer will be treated equal to the first party because there is not a clear distinction between the two.