Opinion One ‘like’, many consequences: Rethinking defamation in the digital age

When a gesture becomes a statement

Defamation rests on three elements. There must be a statement that harms reputation, the statement must refer to the person who complains, and it must be published to at least one other person. Publication is the key requirement, because reputational harm arises only when the imputation reaches a third party.

For decades, courts have treated repetition of a defamatory statement as a fresh wrong. A newspaper that republishes a libel or a speaker who repeats a rumour can both be held liable. With digital platforms, the same logic has been applied to retweets and reposts. The Patiala House judgment carries this reasoning further, treating a “like” as republication because Twitter (now called X), at the relevant time (in 2019), displayed “liked” posts on user profiles and made them visible to followers. For a journalist with a large audience, the court held, the gesture was not neutral but an act of dissemination.

The decision sits comfortably within doctrinal precedent, but consistency is not the same as justice. Unlike a retweet or a repost, a “like” is multivalent. It can mean endorsement, but it can also signal irony, sarcasm, acknowledgement, or simply the intent to save content for later. To collapse these varied meanings into a single conclusion of liability is to risk stripping digital gestures of their ambiguity and treating every trace as if it were a deliberate act of speech.

Dignity, expression and proportionality

The Constitution requires a balance between freedom of speech and the right to dignity. Article 19(1)(a) protects expression, while Article 19(2) permits restrictions to safeguard reputation. Article 21 secures dignity as part of life and liberty. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld criminal defamation precisely on this ground.

At the same time, the Court has struck down vague or excessive restrictions. In Shreya Singhal v. Union of India (2015), it invalidated Section 66A of the IT Act because it chilled legitimate expression. In Puttaswamy v. Union of India (2017), it insisted on proportionality as the standard for limiting fundamental rights. A blanket rule that every “like” amounts to publication falls short of this test and risks producing a chilling effect in which users avoid digital interaction altogether.

This danger is sharpened by the fact that India’s defamation law already imposes fewer safeguards for expression compared to some other democracies. There is no “actual malice” standard for cases involving public figures, and there is no statutory safe harbour for secondary users. Extending liability to “likes” risks tilting the balance further away from free speech, narrowing the space for spontaneous participation online.

Comparative lessons

Other jurisdictions offer a more cautious path. Switzerland clarified in 2020 that liability for a “like” arises only if it demonstrably spreads the content to a new audience. The United Kingdom’s Defamation Act of 2013 requires proof of “serious harm,” which filters out trivial or symbolic cases. English courts, in Monroe v. Hopkins (2017), treated retweets as actionable only because they demonstrably harmed reputation. German courts apply proportionality under Article 5 of the Basic Law, and the European Court of Human Rights requires restrictions to be necessary in a democratic society.

These safeguards highlight what is missing in our approach: Clear doctrinal thresholds that distinguish between genuine reputational harm and casual gestures. By treating every “like” as republication, the law risks becoming both unpredictable and chilling.

Towards a principled standard

The challenge is not to deny accountability but to refine it. “Likes” cannot be dismissed as meaningless, but they should not automatically be equated with speech. Their significance depends on context: A “like” from a student with a small following cannot be equated with one from a journalist or politician with vast reach. Influence matters because it determines whether a gesture meaningfully amplifies defamatory content.

Courts should therefore require proof that a “like” has actually spread the content to a wider audience, while interpreting context to assess whether the gesture conveyed endorsement or something else. Parliament could adopt a serious harm threshold to prevent frivolous litigation, and ordinary users could be shielded through a defence of innocent dissemination, leaving stricter scrutiny for public figures whose gestures carry disproportionate weight. Platforms too must share responsibility. When X made “likes” private by default in 2024, the amplifying effect of “likes” was reduced. This shows that law and design can work together to mitigate risk without silencing participation.

The Patiala House ruling demonstrates both the fragility of reputation in digital life and the risks of overextending defamation law. If every “like” becomes actionable, online debate will shrink under fear. If no “like” is accountable, reputations will remain vulnerable to viral falsehoods. The path forward is to strike a careful balance, guided by proportionality, intent, and demonstrable harm. Democracy requires dignity to be protected, but it also demands that spontaneity in expression not be extinguished. Courts must carry the weight of clicks with discernment, so that reputation is preserved without silencing the vibrancy of public conversation.

The writer is an academic lawyer, working on issues related to democracy, constitutionalism, and access to justice