#MeToo: No guerilla warfare through anonymity, says HC

Persons making allegedly defamatory or motivated statements cannot be permitted to indulge in "guerilla warfare" and be the judge in their own case by seeking anonymity and not giving an opportunity to the accused to defend, the Delhi high court has observed.

Maintaining anonymity of identity in a litigation appears to run counter to Indian jurisprudence of adversarial nature of judicial proceedings, fairness of procedure and equality of opportunity to all parties, the high court said.

Justice Rajiv Sahai Endlaw made these observations while hearing submissions on behalf of Instagram handle Herdsceneand, which sought to maintain anonymity in a suit filed against it by artist Subodh Gupta, seeking removal of the allegedly defamatory content made against him on social media.

In the interim, the court permitted the Instagram account handle to file in a sealed cover its reply and vakalatnama (document empowering a lawyer to act for and on behalf of his client) to maintain its anonymity at this stage and furnish a redacted copy of its response to Gupta.

The counsel for the anonymous Instagram account holder said his client was maintaining the handle, reports incidents on that account and was seeking anonymity as part of his right and irreparable loss would be caused to him if his identity is disclosed at this stage.

The court, in its order of November 18, said though it tried to hear the counsel for the account holder regarding its entitlement to such anonymity and to fight a litigation without disclosing the real identity, after some hearing it appeared that till its pleadings are before the court, appropriate arguments even cannot be heard.

The judge said that even the counsel was sounding reluctant to spell out his case in the open court.

"Allowing the defendant No.1 (account holder) to contest the claim of the plaintiff (Gupta), not only knowing the case but also knowing identity of the plaintiff, while making the plaintiff press his claim against defendant No.1 without knowing the entire defence of defendant No.1 and without even knowing identity of defendant No.1, will amount to treating the two unequally and which is against the very tenets of our jurisprudence. Disclosing the identity to the court would not redress the anomaly," the court said.

It said that even in the past, whenever the courts have proceeded to adjudicate relying on material shared by one party only with the court and concealing it from the opposite party, it has created unnecessary suspicion on the merits of the decision and invited criticism, diminishing the faith of public in the decision making process and judiciary.

The nature of the controversy of this suit is such where identity of the account holder is material for Gupta to properly pursue his case, it added.

The account holder, "without disclosing identity and wearing the veil of a virtual persona", has published statements concerning Gupta, which according to him are defamatory of him.

"The plaintiff, without knowing the identity of defendant No.1, cannot effectively prove the same to be false, motivated and defamatory. Shadow boxing is not permitted in litigation. The plaintiff cannot be compelled to fight ghosts.

"I have in some recent orders held that persons making such statements cannot be permitted to be a judge in their own case, by making accusations and by not giving an opportunity to accused to defend the accusation. The defence of the accused may include factors concerning the accuser. The accuser cannot be permitted to indulge in guerilla warfare against the accused," the judge said.

The court said even in cases where the law permits 'in camera hearing', both parties are entitled to full knowledge of each other and each other's case.

Gupta has filed the defamation suit against Instagram handle -- Herdsceneand -- and others, seeking Rs 5 crore for damage caused to him and his family due to the alleged defamatory posts.

The court had earlier directed social media giants Google, Facebook and Instagram to remove the anonymous posts containing sexual harassment accusations against him that emerged during last year's #MeToo movement.

It had also restrained Herdsceneand from posting any content relating to Gupta on its account.

It had directed 'Herdsceneand', Instagram LLC, Facebook Inc, Google Inc and Google India Pvt. Ltd. to "forthwith remove/ take down the defamatory posts/ articles/ all content pertaining to Gupta and block certain URLs/ web links".

The court had also directed Facebook Inc., which controls Instagram LLC, to furnish before the court in a sealed envelope the particulars of the person/ entity behind the Instagram Account 'Herdsceneand'.