Subodh Gupta defamation case: Delhi HC allows interim anonymity to Instagram handle that aired allegations against artist

FP Staff

The Delhi High Court has allowed the anonymous Instagram account @herdsceneand, which in December 2018 had published a string of sexual harassment allegations against the leading contemporary artist Subodh Gupta, to maintain interim anonymity by allowing the filing of vakalatnama and written statements in a sealed cover, reports Live Law.

The report states that on 18 November the Single Bench of Justice Sahai Endlaw n Delhi High Court declared that the interim anonymity of the said Instagram account would continue until the case reaches a stage where the hearing is on the merits.

The counsel of the social media account @herdsceneand had approached the court and submitted before it saying its client can only enter the case if their anonymity is maintained throughout the proceedings. It informed the court that the said social media account only shared information and experiences received from other women. The counsel argued, "Revealing the identity would cause irreparable loss to the victims of sexual harassment who shared their stories," as quoted in the Live Law report.

Since the account holder was now ready to participate in the proceedings and join the case, Justice Endlaw also made edits to the ex-parte interim order issued to Facebook, along with Instagram and Google. On 30 September, Subodh Gupta had filed a defamation suit against the account holder following which the court had directed the social media giant to reveal the Basic Subscriber Information (BSI) of the said Instagram account, as it is the parent organisation that owns Instagram and hence is the relevant data controller of its services in India.

Following this, Google on 14 October, moved to the court and urged it to modify the order saying it will have a "chilling effect on freedom of speech and expression and be against the public interest." It also pointed out that the court proceedings have been initiated to create an "unreasonable restraint on the freedom of speech and expression on the internet as well as the freedom of the press".

Facebook too pleaded the court to reconsider its order and make changes citing similar concerns as that of Google. It observed that revealing the account holder's identity would "lead to violation of the fundamental right of privacy of both the person running the account but also of those women who shared their stories of sexual harassment," further citing the fundamental right of privacy upheld by the Supreme Court of India in KS Puttaswamy vs Union of India which also included the right to communicate anonymously on the internet. Facebook also maintained that it may further "lead to intimidation, retaliation and other forms of harm" against the account holder and the other women.

On 2 October, an open letter was signed by 38 artists and activists including the likes of Kadak Collective, Annu Palakunnathu Matthew, Munem Wasif, Sandhya Menon, Akansha Rastogi, and Fiza Khatri who condemned Subodh Gupta's defamation suit and the court's order. They said, "This is an attempt to dissuade others from sharing further experiences of harassment and violence, and to perpetuate a culture of fear." On 4 October, the students of the School of Arts and Aesthetics, Jawaharlal Nehru University also issued a statement terming the defamation suit filed by Gupta an "obscene display of power".

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