Facebook And The #MeToo Movement’s Future In India – Subodh Gupta Case

WhatsApp has recently filed a law suit in the United States against the NSO Group, an alleged Israeli spyware vendor, for hacking its users and spying on them. In doing so, WhatsApp has a taken strong stand on the right to privacy and the need to safeguard the interest of its users. It remains to be seen whether the same can be said about WhatsApp’s parent company, Facebook, which was directed by the Delhi High Court last month to hand over the particulars of the person/entity behind the (Facebook-owned) Instagram account ‘herdsceneand’. Facebook has not yet disclosed whether, and if so, how it will comply with the direction; although it has not filed an appeal/application against the High Court’s order.

Let us take a step back to understand the context of the Delhi High Court’s order. ‘Herdsceneand’ is an Instagram account that was created in 2018 with the purpose of sharing anonymous personal experiences of sexual harassment in the art world. Subsequently, the Instagram account shared various stories and allegations of sexual harassment against the world-famous artist, Subodh Gupta. Consequently, he filed a defamation suit before the Delhi High Court against ‘herdsceneand’, with prayers for Facebook and Google to take down the offending allegations online.

On the first day of the hearing itself, the High Court granted Gupta an ex parte interim injunction restraining ‘herdsceneand’ from posting any content pertaining to Gupta on their Instagram account, and requiring Facebook, Instagram, and Google to take down all the defamatory posts/articles about him.

The High Court’s reasoning seems to have been based on the fact that the allegations were made anonymously, and that “prima facie, it appears that the allegations as made in the allegedly defamatory contents, cannot be permitted to be made in public domain/published without being backed by legal recourse. The same if permitted, is capable of mischief.”

Let us examine both grounds. Anonymity for victims of sexual abuse and violence has statutory and judicial recognition, so that they are not subjected to unnecessary ridicule, social ostracisation, and harassment. Anonymity and privacy are related. As Justice Chandrachud explained in the landmark privacy judgment of Puttaswamy, “Privacy involves hiding information whereas anonymity involves hiding what makes it personal.”

Anonymity in the #MeToo era, however, is a difficult subject.

• On the one hand, it clearly empowers victims to come out openly against sexual predators, without any fear of reprisal. This is especially important in the case of serial abusers with multiple victims.
• Conversely, those who have been named have no way of effectively defending themselves, are wary of false allegations, and may be subject to a trial by media, eschewing any due process.

Nevertheless, it is worth noting that false accusations are rare. Studies across Europe and America have shown false allegations in the range of 2-6 percent.

By penalising the victims on the ‘herdsceneand’ account for not filing legal proceedings against Gupta for the alleged sexual harassment, the High Court has ignored the harsh realities of our criminal justice system, which makes trying sexual harassment cases an extremely hostile and unpleasant experience. In a recent decision, the Supreme Court itself recognised that victims are made to feel as if they are at fault; that “the police, more often than not, question the victim like an accused”; and that the cross-examination by the lawyers of the accused tend to raise questions about the victim’s morals and character. Apart from this, the conviction rate for such offences against women is less than 30 percent. It is no surprise then that surveys in India have revealed that around 70 percent of the victims of sexual harassment at the workplace fail to report it.

Notably, the High Court also directed Instagram to furnish the particulars of the person/entity behind the Instagram account ‘herdsceneand’ in a sealed cover. This direction was reiterated at the next hearing, when Facebook was directed to furnish the aforesaid information by Nov. 18. Meanwhile, Google filed an application that as a search engine, it was unable to control the content; and as long as the content was available on a website, it would show up as part of a search result. The Court will consider this issue as well on the next date of hearing, i.e. on Nov. 18. An Indian Express report indicated that Google also argued the case sought to put an unreasonable restraint on the freedom of speech.

What happens next, and in particular, Facebook’s response, will be crucial. As a tech giant that has tried to position itself as a champion of free speech (even in the context of the recent controversy about political ads), Facebook faces an important decision. It can either choose to comply with the High Court’s order and in the process open itself up to future orders requiring such (and potentially even more detailed information); or it can contest the same, as it has done against another Delhi High Court order requiring a global takedown of all videos/wesbites/URLs allegedly defamatory content relating to Baba Ramdev.

More importantly, Facebook and Google’s stand, and the High Court’s subsequent order will set the limits on how free speech issues on social media are played out in the backdrop of defamation suits relating to the #MeToo movement. This is especially important since India still does not have a data protection law, forcing users to rely on these tech giants to protect their privacy and anonymity. As Gopal Sathe and Nehmat Kaur point out, “Social Media sparked #MeToo. Now Facebook could end it”.

Sexual violence and sexual harassment is about power and is rooted in a culture of fear. Anonymity may be one of the few tools that a victim has to get her voice heard. In fact, we have also seen it being used in the recent whistleblower complaint against President Trump. While it is not sufficient to pursue criminal charges against an alleged abuser on the basis of an anonymous complaint, the High Court’s order and the focus on the failure to file legal proceedings, seems to take away this tool from victims who want to call out the alleged aggressors. Whether losing this valuable right (and the ensuing chilling effect) on the ground of due process and defamation is worth it, remains to be seen.

Vrinda Bhandari is a practicing advocate in Delhi.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.