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Subodh Gupta case: Outing details of account will violate privacy, Facebook tells Delhi HC

After Gupta moved the HC against the alleged defamatory content on the Internet and sought their removal, the court, in separate orders directed Facebook to furnish in a sealed envelope particulars of the individual behind ‘@herdsceneand’.

Written by Pritam Pal Singh | New Delhi |
Updated: November 17, 2019 7:18:25 am
Accused of sexual harassment, Subodh Gupta steps down as Goa fest curator, denies charges Artist Subodh Gupta at his Studio in Gurgaon, Haryana. (Express Photo by Tashi Tobgyal)

Facebook Inc. has moved an application in Delhi High Court to say that revealing details of the person behind the anonymous ‘@herdsceneand’ Instagram account, which had posted allegations of sexual harassment against artist Subodh Gupta, “would risk violating the right to privacy”, and adversely impact “potential victims of sexual harassment who share their experiences” through the account.

“Indeed, nations throughout the world have recognized that the right to communicate anonymously is an integral facet of a person’s fundamental rights,” Facebook said in its application filed with the High Court registry on November 13.

Read | Subodh Gupta #MeToo case: Google says Delhi HC order to have chilling effect on free speech

“Such a direction”, it said, “would chill lawful speech and expression, dissuading not only sexual harassment victims from sharing their experiences in the future, but also whistleblowers from reporting such unlawful acts”.

After Gupta moved the High Court against the alleged defamatory content on the Internet and sought their removal, the High Court, in separate orders passed on September 18 and 30, directed Facebook, which owns Instagram, to furnish in sealed envelope particular of the individual behind ‘@herdsceneand’.

Seeking modification of the High Court’s orders, Facebook has argued that providing this information would violate the fundamental right to privacy of the individual holding the account — which includes the right to communicate anonymously on the Internet, particularly on matters of “public importance” such as disclosing sexual harassment.

Facebook has said that the direction is based on the assumption that the alleged defamatory content was being disseminated with an intent to cause mischief.

“Facebook respectfully submits that it is not appropriate to prejudge the Contested Content (defamatory content) as mischievous at this stage in the proceedings, particularly since the Contested Content concerns matters of great public importance, i.e., disclosing acts of sexual harassment.

“Indeed, based on the biography of Defendant No.1’s (Herdsceneand) account, the account appears to be aimed at providing an avenue for victims of sexual harassment to share their experiences, and Defendant No.1 has deliberately chose to anonymous,” Facebook has said in its application.

The application also refers to the Supreme Court’s 2017 verdict delaring the right to privacy is a fundamental right under Articles 14, 19, and 21 of the Constitution.

Facebook has said that it is not the author or publisher of any third-party content, including the alleged defamatory content against Gupta.

“However, recognizing the importance of increasing awareness about the abuse that countless persons face, Facebook has attempted to ensure that the Instagram Service is a safe space for users who wish to share their experiences, particularly if they are victims of sexual harassment or abuse.

“Users can thus exercise their right to freedom of speech and expression on the Instagram Service to share their experiences, including, as here, on matters of great importance,” the application says.

Earlier on October 14, Google Inc. had moved the Delhi High Court asking it to vacate an order directing it to take down anonymous posts containing sexual harassment accusations against Gupta that had emerged during last year’s #MeToo movement. Doing so would have a “chilling effect on freedom of speech and expression and be against public interest”, Google had told the court.

The High Court had restrained ‘@herdsceneand’ from posting on its account any content pertaining to Gupta, and had directed ‘@herdsceneand’, Instagram LLC, Facebook Inc, Facebook Ireland Limited, Google Inc and Google India Pvt Ltd to “forthwith” take down the alleged defamatory posts/ articles/all content pertaining to Gupta, and block some 18 URLs.

The High Court is scheduled to hear the matter on Monday.

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