Supporting defamatory WhatsApp posts without any substantive contribution is not defamation: Madhya Pradesh HC

The Indore Bench of the Madhya Pradesh High Court recently ruled that mere approval of a defamatory post on WhatsApp does not constitute defamation unless one has made a substantial contribution to the hurtful statements.

The court, headed by Justice Subodh Abhyankar, made this observation while dismissing a plea filed by retired Air Marshal Harish Masand, who sought to sue several members of a housing society WhatsApp group for defamation. The court said, “Mere approval of a post by a one-liner may be tantamount to approval of the utterance of the other members of the group/the accused. However, this court must also see the conversation in the WhatsApp group in its entirety and the context in which it is conducted and the purpose for which the WhatsApp group was formed.”

The case involved a private defamation suit filed by Masand against eight people, alleging that they had defamed him through messages posted in a WhatsApp group of their housing society. The suit arose after Sandeep Gupta, one of the accused, posted a message criticising Masand on February 21, 2023. This message was supported by other group members, including Gupta’s family.

Masand’s complaint was initially heard by a Justice of the Peace, who on May 17, 2023, took cognizance of the complaint only against two persons, Sandeep Gupta and Lt. Col. Jagdish Pahuja (retired), but dismissed the charges against the others. Masand challenged this decision in a higher court, which remanded the case for reconsideration.

On September 25, 2023, the court reiterated its original decision, which was later confirmed by another court on February 5, 2024. Unhappy with the outcome, Masand approached the Supreme Court under Section 482 of the Criminal Procedure Code, arguing that all the persons involved should be charged with defamation. He argued that since the other accused had liked and supported the defamatory post, they should be held equally liable.

The complainant argued that liking and commenting on Gupta’s post amounted to defamation. He relied on several Supreme Court judgements, including Balraj Khanna vs. Moti Ram and Nazir Khan vs. State of Delhi, to support his contention that consenting to or approving of defamatory content should give rise to liability.

The defendants’ counsel, advocate Rishiraj Trivedi, on the other hand, argued that the district courts had adequately considered the facts and the limited roles of the other defendants. He claimed that the allegations against Gupta and Pahuja were specific, while the other persons had only made brief remarks that did not amount to defamation. The defendants stressed that the WhatsApp group was meant to discuss housing society matters and that the defendants’ comments were spontaneous and unrelated to any intention to defame Masand.

After examining the WhatsApp conversations and the orders of the trial court, the court held that neither the trial court nor the trial court had committed any violation of law or miscarried the case. It noted that only Gupta and Pahuja had expressed detailed criticism of Masand, while the others had made only casual, cryptic remarks. The court clarified that the WhatsApp group was created for discussions within the housing society and not to defame Masand.

The court observed, “It is evident that the aforesaid WhatsApp group was created to facilitate the activities of the housing society including its day to day problems in which one of the members made certain criticisms on which the other members also expressed certain views in a very cryptic manner. These comments appear to have been made without premeditation and only spontaneously. They appear to have been made without any intention to defame the plaintiff and in these circumstances, they cannot be held responsible for the lengthy posts made by only two members of the said group namely Sandeep Gupta and Lt. Col. Jagdish Pahuja (retired).”

The court stressed that there must be a clear intention to damage the plaintiff’s reputation and concluded that the comments made by the other defendants appeared spontaneously and did not have any deliberate intent to defame, and therefore could not be held liable.

In view of these findings, the court dismissed Masand’s petition and upheld the decision of the trial courts to proceed only against Gupta and Pahuja.